Legislature(2017 - 2018)BUTROVICH 205
02/20/2018 03:30 PM Senate STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| SCR1 | |
| HB87 | |
| HB44 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SCR 1 | TELECONFERENCED | |
| += | HB 87 | TELECONFERENCED | |
| + | HB 44 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
HB 87-CONFLICT OF INTEREST: BD FISHERIES/GAME
3:56:47 PM
CHAIR MEYER announced the consideration of House Bill 87 (HB
87). [CSHB 87(FSH) was before the committee.]
3:57:22 PM
REPRESENTATIVE LOUISE STUTES, Alaska State Legislature, Juneau,
Alaska, sponsor of HB 87, summarized that the bill strictly
pertains to conflict of interest for the Alaska Board of
Fisheries (Board of Fish) and the Alaska Board of Game (Board of
Game). She detailed as follows:
The reason for this bill is currently when you are
sitting on, particularly on the Board of Fish, the
Board of Game doesn't seem to be quite as stringent
although they live under the same statute as the Board
of Fish does. When you are sitting on the Board of
Fish if you have a conflict you certainly are
conflicted-out from voting on it, but you are
conflicted-out from the discussion as well; in having
experts on this board it seems a little odd to exclude
them from the conversation when that's what they are
there for. Consequently, this bill's intent is to
allow the individuals to participate if they have a
conflict and to allow them to participate in the
discussion even though they may not have the
opportunity to vote on the bill.
3:59:05 PM
MATT GRUENING, Staff, Representative Stutes, Alaska State
Legislature, Juneau, Alaska, provided an overview of HB 87 as
follows:
The intent of HB 87 is to change the manner on which
the Board of Fisheries and the Board of Game function,
to allow members to deliberate on subjects of which
they have declared a personal or financial interest
according the Executive Branch Ethics Act. The Ethics
Act forbids a public officer from taking or
withholding official action in order to affect a
matter in which the member has a personal or financial
interest. Official action is then defined to mean
advise, participation, assistance; including for
example, a recommendation, decision, approval,
disapproval, vote or similar action.
Currently the board members are required to divulge a
conflict of interest if they or their immediate
families are involved in a subject being deliberated
on. The conflicted member could then no longer offer
their input in the process and cannot vote on the
matter at hand; in fact, they are asked to step down
and join the audience. This bill allows conflicted
members to offer remarks and input, but the members
still cannot vote on the issue. The member is also
precluded from voting on whether they have a conflict
of interest or not, that is determined by the ethics
officer who is the chairman and then if there is an
objection it goes to a vote of the board.
The qualifications for the appointment to the Board of
Fisheries and the Board of Game are quite different
and more general from most boards. Instead of being
chosen because they are professionals in their fields,
members are selected on the basis of interest in the
public affairs, good judgement, knowledge, and the
ability of field of action of the board and with the
view to providing a diversity of interest and points
of view on membership. One of the things we are
looking at is that somebody might have a different
point of view because of their knowledge, because it
is essentially a layman's board, and you might only
have a couple of people that own a certain particular
type of permit or work in lodge, they might have some
perspective on the nuances of fishing that other
members of the board might not have and thus their
knowledge and expertise is actually of great use.
In addition, many of the other boards are tied to
licenses, they are exempt, many of the boards from
certain requirements in the ethics act. So, this is a
board that deals with licenses as well and it's one of
the boards that you are not allowed to deliberate and
in some cases the boards are actually allowed to vote;
so, this makes a lot of sense from our perspective
from the fact that you possibly have very few amounts
of expert viewpoints on what is being discussed.
Often in fishing a financial interest is tied to
knowledge of the field. Fishing issues tend to be very
complicated and knowledge based. A person who may have
an uncle, aunt, brother who has a certain type of
fishing permit or has a fishing permit themselves
might be the only person on the board who understands
exactly what is being discussed in detail,
particularly in rural Alaska where entire families
might be permit holders or lodge owners. The current
conflict policy is discouraging in some instances
qualified members from applying to the board on the
basis of them knowing they would be conflicted-out of
the discussion in a lot of cases.
Another issue is one of public process and public
trust. Board members who are conflicted-out are still
actually offering their input, but they are doing it
outside of the meeting and they are doing it
discussing on the side with other board members; in
order to maintain the public's trust, we really
believe these discussions should be happening in the
meeting and on the public record so there's that
aspect to it as well is it really improves the public
process, it seems prudent to allow members with
expertise and knowledge to offer their input, but not
vote. It is the sponsor's opinion that this change
will help the boards make more informed decisions,
enhance the public process and lead to a generally
stronger resource management statewide.
I will say that in a full disclosure I would like to
point out that due to recent staff turnover, we
discovered last week that there may be some unintended
consequences with the bill the way it is currently
drafted. Unfortunately due to the personal bill
deadline we were unable to fix the draft fixes in time
but also aside from that we thought it was the prudent
action to present our intent to the committee, point
out the issues that might need to be addressed, and
let the will of the chair and the committee decide
what changes if any need to be made to the bill.
4:03:26 PM
MR. GRUENING directed attention to a legal memo from Linda M.
Bruce, Legislative Counsel, Legal Services, dated February 9,
2017. He explained that the memo was debated at length and to
the satisfaction of the House Resources Committee that there was
not an issue. He said after discussions with Legal Services and
the Board of Fish, Representative Stutes' office concluded that
clarification is needed in the bill's intent language. He
detailed as follows:
What the memo says essentially is that the use of the
words "notwithstanding any other provision" of this
chapter at the beginning of the bill could have the
effect and it is not clear whether it does or doesn't,
but it seems like an easy fix of superseding AS
39.52.120(c), which in turn would supersede AS
39.52.220. That essentially is "the nuts and bolts and
the meat" of the process by which you'd declare a
conflict, how a conflict is determined, who the ethics
officer is, and how the voting can be determined, and
whether you can still vote or deliberate or not; that
certainly was not our intent, our intent was simply to
allow the use of the current process when declaring
and determining a conflict of interest and the only
thing that the sponsor would like to change is
essentially what was voted on throughout the process
too is that if there is a conflict that the conflicted
member can deliberate but not vote. We were not
looking at in any way to inadvertently affect the
current process by which the conflict is determined,
that seems to be working well and it's well
established in statute.
4:05:49 PM
MR. GRUENING called attention to a memo from Glenn Haight
regarding "Background Information on the Alaska Boards of Game
and Fisheries Ethics Act Process." He summarized that Mr. Haight
also said clarification is needed to get to the intent,
specifically what the bill addressed. He added that the bill
also narrows the definition of "immediate family member" for the
purposes of debate, not voting. He conceded that an unintended
interpretation may imply that the bill will supersede AS
39.52.220 for the ability to vote; he said the sponsor will look
to the will of the chair and the committee to decide if that
change is appropriate.
He summarized that the bill's intent is to allow conflicted
members under the current system to deliberate but not allow the
ability to vote. He noted that he spoke with Legislative Legal
and was told that a simple fix could be made.
REPRESENTATIVE STUTES asserted that the intent is to make the
language clear cut and easily understood. She reiterated that
the intent is to allow conflicted-out board members to
participate in the discussion and impart their knowledge but not
be allowed to vote. She said not allowing somebody to share
their expertise seemed odd.
CHAIR MEYER asked why Representative Stutes does not want board
members to vote. He opined that the governor probably selected
the board members because of their expertise.
REPRESENTATIVE STUTES replied that the issue the boards are
trying to avoid, particularly in fisheries, is that an
individual can be affected monetarily. She reiterated that the
intent is to allow a board member to put forth their expertise
but let others vote.
4:09:56 PM
CHAIR MEYER asked what the financial hurdle is for a conflict of
interest.
MR. GRUENING replied the financial hurdle is $5,000 according to
AS 39.52.110(d). He disclosed that the statute was proposed by
Hollis French, former state senator.
SENATOR GIESSEL asked if the memo from Glenn Haight stated that
the current procedure followed by the boards complies with the
Executive Branch Ethics Act.
MR. GRUENING answered correct.
SENATOR GIESSEL asked if the Executive Branch Ethics Act states
that a person who is conflicted-out cannot participate in the
debate or vote.
MR. GRUENING answered correct.
SENATOR GIESSEL asked if the bill proposes to tweak the
Executive Branch Ethics Act only for the Board of Fish and the
Board of Game.
MR. GRUENING answered correct. He said the qualifications for
the boards is very general and reiterated that an individual
with intricate knowledge might not be allowed to provide
important input in making decisions.
4:12:20 PM
SENATOR GIESSEL noted her experience with serving on a
professional regulatory board and pointed out the specialization
in the Board of Fish and Board of Game. She opined that the
requested change seems very logical.
REPRESENTATIVE STUTES referenced a situation that occurred in
Kodiak several years ago with the Board of Fish where an
individual was conflict-out and the individual's input would
have made a difference in the board's vote.
MR. GRUENING disclosed that the current chairman for the Board
of Fish, John Jensen from Petersburg, was recently conflicted-
out of 50 different proposals where he was not allowed to
deliberate.
SENATOR GIESSEL pointed out that the Senate Resources Committee
interviews applicants for the Board of Fish and the Board of
Game and noted that the committee votes on appointees based on
their expertise. She said she appreciated that the bill was
brought forward.
CHAIR MEYER asked what occurs if someone does not declare a
conflict of interest.
4:15:11 PM
GLENN HAIGHT, Executive Director, Alaska Board of Fisheries,
Juneau, Alaska, speculated that if the board passes something
where a conflict was not declared that the board's decision
would be voidable based on reconsideration.
4:16:03 PM
BRADLEY MEYEN, Assistant Attorney General, Civil Division,
Natural Resources Section, Alaska Department of Law, Anchorage,
Alaska, addressed Chair Meyer's question regarding not declaring
a conflict of interest as follows:
To the extent that a matter would take place where
there was a situation where someone had failed to
properly declare a conflict I would need to check it
out further but I would agree that my initial response
is that it would be a voidable action; however, I
would like to add that the board members take these
matters very seriously and they explore their
potential conflicts and they do so with further
discussions including discussions with the Department
of Law to run through the specific items that are in
the ethics act to avoid those types of problems from
even occurring.
SENATOR GIESSEL asked if making an exception to the Executive
Branch Ethics Act would result in a legal problem.
MR. MEYEN referenced page 5 from Mr. Haight's April 12, 2017
memorandum where the Department of Laws' concerns were
encapsulated. He noted that DOL's concerns actually called for
clarifications so that the change would be consistent with the
Executive Branch Ethics Act.
4:18:21 PM
MR. GRUENING referenced AS 39.52.310 through AS 39.52.330
regarding complaints and the process by which the attorney
general or person may initiate a complaint in addition to the
process for a possible hearing.
MR. HAIGHT asserted that the bill's intent is clear and
implementation for the Board of Fisheries or the Board of Game
would be simple.
4:20:27 PM
CHAIR MEYER opened public testimony.
4:21:00 PM
JERRY MCCUNE, President, United Fishermen of Alaska, Juneau,
Alaska, testified in support of HB 87. He said not allowing a
conflicted-out board member with expertise to answer questions
is frustrating.
4:24:45 PM
CHAIR MEYER asked what happens when a board member is
conflicted-out, if the remaining members have access to experts
during their meetings to answer questions.
MR. MCCUNE explained that staff members from the Department of
Fish and Game attend board meetings, but typically the board
does not ask questions during the deliberation stage.
4:26:08 PM
FRANCES LEACH, Executive Director, United Fishermen of Alaska
(UFA), Juneau, Alaska, testified in support of HB 87. She said
what good is expertise when a board is not allowed to use it.
She confirmed that Board of Fish members are open, honest and
extremely transparent when dealing with the conflict of interest
process. She affirmed that conflicted-out board members should
not be allowed to vote, but UFA believes that conflicted-out
board members should be able to deliberate and discuss proposals
on the record to help clarify and provide an insight into a
fishery. She said she has seen board members struggle to decide
when a conflicted-out member would have provided an answer. She
summarized that muting a board member's voice undermines one's
strength on a board, especially the ability to offer insight on
a specific fishery.
4:30:54 PM
CHAIR MEYER concurred with Ms. Leach that the conflicted-out
members were picked because of their expertise and opined that
they should be allowed to vote as well.
SENATOR GIESSEL agreed with Chair Meyer on allowing voting as
other regulatory boards do.
4:32:23 PM
JULIANNE CURRY, representing self, Petersburg, Alaska, testified
in support of HB 87. She agreed with the common-sense
legislation to allow conflicted-out members with valuable
expertise to deliberate. She asserted that Alaska's fisheries
are much too complex to restrict board members' expertise. She
added that she also supported further defining the "immediate
family member" definition.
4:33:34 PM
MALCOLM MILNE, President, North Pacific Fisheries Association,
Homer, Alaska, testified in support of HB 87. He said finding
qualified members to serve on the state boards can be
challenging and limiting participation can hamper information.
He set forth that allowing conflicted board members to
deliberate adds expertise. He said keeping the conflict to
immediate family members is appropriate.
4:34:59 PM
MATT ALWARD, representing self, Homer, Alaska, testified in
support of HB 87. He asserted that changing the conflict
standards to "immediate family members" is reasonable and
responsible. He agreed that conflicted board members should not
have a vote, but to bar the members from the conversation goes
too far, especially for the subject-matter experts.
4:35:59 PM
CHAIR MEYER closed public testimony.
SENATOR GIESSEL agreed with previous testimony that board
members are highly scrutinized and keep their ethics level very
high simply because of the public scrutiny. She said what
Representative Stutes is proposing is important for the
committee to consider. She added that she would like to hear
from Representative Stutes on how she would perfect the bill.
CHAIR MEYER concurred that board members are closely scrutinized
and watched. He asked Representative Stutes if she had suggested
changes for the bill.
4:37:44 PM
REPRESENTATIVE STUTES said her office is going to clarify the
language in the bill so there is no misconception in the intent
which is to allow board members that are conflicted-out to
participate in the discussion without obtaining a vote.
CHAIR MEYER asked if there has been a discussion with the Board
of Game regarding the proposed changes for the bill.
MR. GRUENING said the director for the Board of Game was unable
to testify but in previous testimony said the board has taken a
neutral position.
CHAIR MEYER suggested that Representative Stutes provide his
office with her proposed changes for presenting a committee
substitute.
REPRESENTATIVE STUTES agree to do so.
4:39:34 PM
CHAIR MEYER held HB 87 in committee.