Legislature(2017 - 2018)GRUENBERG 120
01/30/2017 01:30 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| Organizational Discussion | |
| HB44|| HCR1 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 44 | TELECONFERENCED | |
| += | HCR 1 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 44-LEGISLATIVE ETHICS: VOTING & CONFLICTS
HCR 1-AMEND UNIFORM RULES: ABSTAIN FROM VOTING
1:47:32 PM
CHAIR CLAMAN announced that the final order of business would be
HOUSE BILL NO. 44, "An Act requiring a legislator to abstain
from taking or withholding official action or exerting official
influence that could benefit or harm an employer or to request
to be excused from voting in an instance where the legislator
may have a financial conflict of interest; and providing for an
effective date," AND HOUSE CONCURRENT RESOLUTION NO. 1,
Proposing an amendment to the Uniform Rules of the Alaska State
Legislature relating to voting and abstention from voting.
[HB 44 and HCR 1 were before the committee together.]
CHAIR CLAMAN advised this is the second hearing on HB 44 and HCR
1, the sponsor previously presented the legislation, the
committee listened to public testimony, and public testimony is
closed.
1:48:36 PM
REPRESENTATIVE JASON GRENN, Alaska State Legislature, introduced
himself.
1:48:44 PM
RYAN JOHNSTON, Staff, Representative Jason Grenn, Alaska State
Legislature, said that HB 44 provides a concise outline for the
standards a legislator can review to determine whether they have
a conflict of interest. He moved to HCR 1, and advised it is an
amendment to Uniform Rule 34(b), changing it from unanimous
consent to a majority consent for an abstention for a
legislator.
MR. JOHNSTON, referring to a previous request, advised
Representative Fansler that the sponsor was still waiting to
hear from the other states regarding their journal records on
abstention.
MR. JOHNSTON, referring to a previous question, advised
Representative Eastman that the sponsor spoke with the Chief
Clerk and, currently, there is an ability to withdraw the motion
once a representative has asked for a motion to abstain, and
under this legislation, that ability would still be allowed
before a vote on the abstention.
1:50:24 PM
REPRESENTATIVE EASTMAN moved to adopt Amendment 1, Version 30-
LS0209\J.3, Gardner/Wayne, 1/26/17, which read:
Page 1, line 4, through page 2, line 6:
Delete all material and insert:
"* Section 1. Rule 34(b), Uniform Rules of the
Alaska State Legislature, is amended to read:
(b) Abstention. Every member present in the
house shall vote unless the house for special reasons
permits a member to abstain. All motions excusing a
member from voting shall be made before the house
divides or before the call for the yeas and nays is
commenced. A member requesting to be excused from
voting shall have up to five minutes to explain the
member's request to be excused from voting, [MAY MAKE
A BRIEF ORAL STATEMENT OF THE REASONS FOR THE REQUEST]
and the question of granting permission to abstain
shall be taken without further debate. A member may
not explain a vote, may not discuss the question while
the yeas and nays are being called, and may not change
a vote after the roll call result has been announced.
Upon division and count of the house of any question,
a member who is not within the chamber may not be
counted. A member may not be permitted to abstain
except upon an affirmative vote of two-thirds of the
full [UNANIMOUS CONSENT OF THE] membership of the
house."
CHAIR CLAMAN objected for purposes of discussion.
1:50:51 PM
REPRESENTATIVE EASTMAN explained that the amendment amends HCR 1
and allows members up to five minutes to explain their conflict
of interest on the floor of the House of Representatives. A
member may not be committed to abstain from a vote except upon
an affirmative vote of two-thirds of the full membership of the
House of Representatives.
1:51:28 PM
REPRESENTATIVE GRENN related that research indicated that a vast
majority of other states have the same language contained within
the bill regarding a majority vote, and that his intention was
to put the vote on the record. He said his main goal was
consistency with the statute regarding municipalities which puts
this conflict of interest vote to a majority vote. He related
that this legislation was drafted with the hope that pragmatic
logic would be the approach legislators would use when voting on
an abstention, and said he is willing to discuss the amendment
from Representative Eastman.
1:52:57 PM
REPRESENTATIVE KREISS-TOMKINS related that there are two
substantive components to the amendment, raising the threshold
from two-thirds vote from a mere majority, and five minutes of
discussion related to the abstention. He said he can infer the
logic in raising the threshold, and asked Representative Eastman
to expound on the five minutes of discussion on the conflict of
interest.
REPRESENTATIVE EASTMAN responded that, currently, the verbiage
within the uniform rules is "brief," and the amendment asks a
bit more of someone when rising to speak to a conflict of
interest. The five minutes was designed to give the legislator
sufficient opportunity to explain the conflict, with the
expectation that it is unlikely everyone would use the full five
minutes. He related that the intent was to be certain everyone
participating in a vote had sufficient time to understand the
conflict of interest, and were confident they had a good
understanding of what they were about to vote on.
1:55:10 PM
REPRESENTATIVE KREISS-TOMKINS said he noticed that the language
toggles from "may" to "shall," and asked whether the language
should be "may have" as opposed to the more imperative "shall."
REPRESENTATIVE EASTMAN said that as long as the person making a
request for an abstention has that opportunity, the spirit of
the amendment is satisfied.
1:56:12 PM
REPRESENTATIVE LEDOUX advised that if the language was "may"
rather than "shall have up to five minutes," that would give the
Speaker of the House of Representatives the discretion not to
give someone five minutes. She explained that "may make a brief
oral statement of the reasons for the request" leaves it up to
the person whether or not they want to make any sort of
statement.
REPRESENTATIVE KOPP said he appreciates the intent of the
amendment and said, currently, it appears there are no limits
because it reads "a brief oral statement of the reasons for the
request." He asked whether this amendment would be
inadvertently limiting the speaker to five minutes whereas
currently there are no limits.
1:58:04 PM
REPRESENTATIVE LEDOUX commented that possibly the better part of
valor would be that if someone was concerned with either the
Speaker of the House of Representative or the Rules Committee
Chair cutting someone off based upon their understanding of the
term "brief," she suggested "they make an oral statement ... for
the reasons of the request," and it doesn't include "brief"
because people may argue the definition of "brief" depending
upon the context of its usage.
REPRESENTATIVE FANSLER asked, previously, how long a legislator
had spoken to their conflict. He offered that in serving on a
municipality council, typically, it has been the person's name
and where they work. He asked whether an open dialogue is
allowed during the declaration of a conflict because it would
helpful to sometimes ask follow up questions before voting
2:00:08 PM
REPRESENTATIVE LEDOUX responded that, generally, a
representative will rise and say they work for the University of
Alaska, for example. There will be no discussion whatsoever
because between the time someone rises to declare a conflict and
toward the end of their sentence, someone will yell out
"objection" and the Speaker of the House will say,
"Representative Fansler, there has been an objection, you are
required to vote." Although, she commented that in the event
this bill passes, she imagines it would change somewhat because
a legislator would actually have to rise and enunciate further
than what has been done in the past because it will have some
real consequences. She advised that questions are permitted on
the floor of the House of Representatives, but she has never
seen a basic conversation in the chambers, it is all formalized.
2:01:46 PM
REPRESENTATIVE EASTMAN requested input from the sponsor on this
discussion.
REPRESENTATIVE GRENN answered that the time limit is somewhat
common in other states, and within his conversations with other
ethics committees, there is an anti-filibuster type feeling to
it. Also, he said, it gives the legislator time to enunciate
their conflict if they are trying to rise to their conflict and
advise they would like to vote or abstain from the vote.
2:02:58 PM
CHAIR CLAMAN noted that Amendment 1 is not an amendment to HCR
1, Version J, but rather an amendment to the uniform rules. He
asked whether his intention with the amendment s to change the
existing Uniform Rule 34(b), and reject everything that's
changed in HCR 1, Version J.
REPRESENTATIVE EASTMAN answered that Amendment 1 is a
replacement, and it basically makes it a committee substitute.
CHAIR CLAMAN said he wanted to verify that was Representative
Eastman's intent.
2:03:57 PM
MR. JOHNSTON clarified that the motion is not debatable, which
is in the uniform rules and this legislation.
2:04:24 PM
REPRESENTATIVE LEDOUX referred to Version J and the current
uniform rules, and asked whether the motion as to whether or not
someone can abstain is not debatable at all.
REPRESENTATIVE GRENN replied that it is not debatable, and
offered that the legislator requesting to abstain may rise, make
their brief oral statement, and the motion is then taken up for
a vote with no debate.
REPRESENTATIVE LEDOUX commented that she wondered whether any
discussion or debate was allowed in any of the other
municipalities where they actually vote on whether it's
appropriate to abstain. For example, she said, the Municipality
of Anchorage and whether any discussion or debate is allowed.
2:05:54 PM
REPRESENTATIVE GRENN referred to AS 29.20.010. Conflict of
Interest, which read:
(a) Each municipality shall adopt a conflict of
interest ordinance that provides that
(1) a member of the governing body shall
declare a substantial financial interest the member
has in an official action and ask to be excused from a
vote on the matter;
(2) the presiding officer shall rule on a
request by a member of the governing body to be
excused from a vote;
(3) the decision of the presiding officer on
a request by a member of the governing body to be
excused from a vote may be overridden by the majority
vote of the governing body; and
(4) a municipal employee or official, other
than a member of the governing body, may not
participate in an official action in which the
employee or official has a substantial financial
interest.
(b) If a municipality fails to adopt a conflict
of interest ordinance by June 30, 1986, the provisions
of this section are automatically applicable to and
binding upon that municipality.
(c) This section applies to home rule and general
law municipalities.
REPRESENTATIVE GRENN answered that it does not appear to allow
for debate.
CHAIR CLAMAN referred to Amendment 1, and opined that the real
question, among other voiced questions, is whether it should be
two-thirds or a majority of the body. Chair Claman advised that
he will not remove his objection.
2:06:57 PM
A roll call vote was taken. Representatives Eastman, Reinbold,
and Kopp voted in favor of Amendment 1. Representatives Kreiss-
Tomkins, LeDoux, Fansler, and Claman voted against it.
Therefore, Amendment 1 failed to be adopted by a vote of 3-4.
2:07:26 PM
REPRESENTATIVE KOPP referred to a conceptual amendment he may
propose for HB 44, Version O, page 2, lines 19-20, [Sec. 2, AS
24.60.030(g)]. The amended language would read as follows:
(g) ... a legislator shall request to be excused
from voting on a question before a house of the
legislature if the legislator or a member of the
legislator's immediate family has a financial interest
in a business
REPRESENTATIVE KOPP explained that the conceptual amendment gets
to the heart of the matter in that there would be full
disclosure on the floor of the House of Representatives so the
full body can hear it and call for the vote. He continued that
it would take out the unnecessary obstacle of a legislator not
being allowed to vote because the legislator may believe they
have a conflict. The legislator would rise and declare the
conflict and still have the option of voting depending upon the
vote of the body. Although, in a House of Representatives or
especially a Senate committee it may be difficult to have a
quorum and that one denied vote has a much greater impact in
committee than before the body as a whole. He argued that it is
within the spirit of the legislation and does not take away the
committee work, and that he hoped a member who felt they were
conflicted would say so, even in committee. Currently, he
noted, the legislation reads "may not vote" and that may be
something that goes beyond what is needed when the House of
Representatives floor issue is covered.
2:10:17 PM
CHAIR CLAMAN reminded the committee of the policy which requests
amendments by 5:00 p.m. the day before the bill is heard, and
advised the committee it would not be voting on this conceptual
amendment today. Although, the committee could discuss it
during this meeting.
2:11:01 PM
REPRESENTATIVE KREISS-TOMKINS commented that it makes sense to
him.
REPRESENTATIVE GRENN agreed that the conceptual amendment helps
get to the heart of the intent of the legislation, allowing for
a vote to take place on the floor of the House of
Representatives and not to feel like the legislation is
automatically eliminating someone's representation of their
district by a vote in a small place like a committee. He said
he would accept this friendly conceptual amendment.
2:11:42 PM
REPRESENTATIVE FANSLER opined that a key reason for the
legislation is to be certain the [votes] are on the record. He
asked whether Representative Kopp would accept language such
that it is recognized there is a possible conflict of interest
on the committee record and the legislator is still allowed to
vote. Therefore, the conflict would be out there and the
legislator could declare they have a conflict of interest but
the rule being [indisc.] the legislator is allowed to
participate in discussion and amendments.
REPRESENTATIVE KOPP responded that Representative Fansler's
suggestion is consistent with his thoughts in that he hopes the
legislator would disclose, but that the legislation wouldn't be
to stop the legislator from voting at that point.
2:13:07 PM
REPRESENTATIVE GRENN advised that, currently, within the uniform
rules there is nothing to say that a legislator needs to declare
a conflict of interest in committee.
CHAIR CLAMAN offered that a bill was before the House Judiciary
Standing Committee that created a basis for Chair Claman to
declare a conflict because he owned stock in some company. He
would still count for purposes of reaching the quorum, and he
had announced he would be rise on the floor of the House of
Representatives regarding the conflict. He related that the
public is concerned about people with an interest voting on the
legislation, so the bill passes out of committee by a 4 to 3
vote with Chair Claman having disclosed this conflict, and is
the fourth vote that gets it out of committee. Therefore, he
said, those in the public that would object to legislators
voting on bills in which they have an interest, would say that
the bill made it out of committee, yet Chair Claman had this
conflict. He referred to this example and asked whether this
makes the public any happier if having reached the quorum, the
person with the conflict is nevertheless allowed to vote on
whether the bill moves out of committee, rather than abstaining
in committee and leaving it to the remainder of the committee to
gather their votes to move the bill forward. He noted that the
example reflects the Senate committees more so than the House of
Representative committees. He said he offered that example for
purposes of discussion which reflects a certain concern with the
public's perception.
2:15:37 PM
REPRESENTATIVE LEDOUX agreed that the uniform rules are silent
on this issue, and opined there may be a Legislative Legal and
Research Services opinion as to whether or not a legislator is
required to declare a conflict within the committee process.
She suggested there may be something in Mason's Manual, which is
where legislators look to when the uniform rules do not
specifically cover an issue.
2:16:34 PM
REPRESENTATIVE KOPP pointed to the issue of smaller committees
in the other body wherein there may be three members on a
committee of which one member has a conflict, and if there are
differing opinions between the other two legislators, the bill
fails to get out of committee. He related that the problem with
full public transparency is that the bill never really gets to
the floor of the House of Representatives where all members, and
the public, hear a detailed explanation because the body, as a
whole, would be voting. The problem is with the smaller
committees in the other body, he reiterated.
2:17:38 PM
REPRESENTATIVE KREISS-TOMKINS asked whether Doug Gardner,
Director of Legislative Legal and Research Services, was on line
and could offer insight into Representative LeDoux's
recollection.
CHAIR CLAMAN advised that Mr. Garner was not on line.
2:18:13 PM
JERRY ANDERSON, Legislative Ethics Committee Administrator,
Select Committee on Legislative Ethics, stated that
Representative LeDoux is correct, and that Advisory Opinion
2004-02 contains that specific provision wherein it does not
apply to voting in a committee, and subsequent opinions have
also stated that same fact.
REPRESENTATIVE LEDOUX asked whether any of the advisory opinions
say whether or not a legislator is supposed to identify the
conflict and then vote anyway.
MR. ANDERSON explained that the advisory opinions specifically
state that a legislator is not required, under the current rules
and statutes, to extend that [requirement] to the committee,
including chairing a committee, debating in a committee, and
voting in a committee.
REPRESENTATIVE LEDOUX asked whether the ethics rules parallel
state criminal law and federal law because she could recall
cases in federal court dealing with "honest services," and she
thought people got into trouble for not declaring a potential or
actual conflict throughout the process, possibly in this state
or other states,
2:21:17 PM
CHAIR CLAMAN said he has a similar memory that it was either a
statute or common law doctrine regarding "honest services," but
he could not recall the details.
REPRESENTATIVE KOPP explained that within Alaska's statutes,
three statutes discuss misuse of public office or abuse of
public office regarding taking or failing to take an action that
a public officer should have or should not have taken. He
opined that conflicts are addressed, but it would probably need
to be a fairly egregious act to be applied against a legislator.
REPRESENTATIVE LEDOUX commented "You never know." She opined
there is a federal doctrine that talks in terms of "honest
services."
CHAIR CLAMAN, after asking for further committee questions
regarding the conceptual amendment and hearing none, moved to
comments on the legislation before the committee.
2:24:48 PM
REPRESENTATIVE REINBOLD related that she was trying to
understand the intent of the legislation because currently
legislators have the opportunity to declare a conflict, and the
conflict is listed on the legislative financial disclosures.
Historically, she said, the legislature has allowed all members
to vote to make sure that "18,000 members that we represent are
not disenfranchised" because this is a citizen legislature. She
said that any member of the legislature making greater than
$10,000 from a client or spouse's client or company, owns stock,
works in public schools, is a state employee, et cetera, the
legislator needs to recuse themselves from a committee vote or a
vote on the floor of the House of Representatives. She pointed
out that she was unsure whether retirement benefits were
encompassed in the legislation if they receive more than $10,000
of benefits.
2:26:00 PM
REPRESENTATIVE GRENN responded that she was incorrect.
MR. JOHNSTON clarified that each of these situations would
require a fact based inquiry; therefore, under the bill more
details on each situation would be necessary to determine
whether or not a legislator fell under the substantial benefit
provision and had a conflict of interest.
2:26:47 PM
REPRESENTATIVE REINBOLD said that [the language] is clear in
that if a legislator received $10,000 from the University of
Alaska, from public schools, as a state employee, from unions,
stocks, private sector, and retirement and benefits [there would
be a conflict of interest]. She asked whether the legislation
is targeting individuals working in the private sector, or
whether it is discussing a smaller group than those she
mentioned.
MR. JOHNSTON answered the legislation dictates that in the event
a legislator has an income of $10,000, it could be public,
private, or a sole proprietor, and this business made a
substantial benefit from the passage of certain legislation,
more so than the rest of that class, business, or industry, a
legislator could determine they have a conflict of interest.
REPRESENTATIVE REINBOLD offered concern that the legislation is
subjective because "how are we supposed to know on everybody -
we don't get to see everybody's income tax" to determine whether
they make more than $10,000 from a certain bill related entity.
She said it is hard for legislators to see all of that
information before every single committee vote and noted that
incomes can change. Legislators would have to spend a lot of
time studying other people's financial records before voting
before the committee or the legislature as a whole, she said.
REPRESENTATIVE GRENN pointed out that legislators honor each
legislator to have the integrity and wherewithal to know when to
rise and declare a conflict of interest, and the legislation
does not change that. The legislation offers a measure for
legislators to stand on to recognize when they have a conflict
based upon the legislation, he said.
2:29:17 PM
REPRESENTATIVE EASTMAN noted that, currently, the Select
Committee on Legislative Ethics deals with issues such as
conflicts. He asked how these types of situations would be
handled if this legislation had never been filed, and what the
legislature would revert to.
MR. JOHNSTON reiterated that, currently, a legislator can ask to
abstain, but if a legislator feels that another legislator did
not declare a conflict of interest, an anonymous complaint can
be made to the Select Committee on Legislative Ethics and the
committee conducts an investigation.
REPRESENTATIVE EASTMAN surmised that, currently, a legislator
would pursue a complaint through the Select Committee on
Legislative Ethics. By putting this legislation into statute it
takes it out of the realm of the Select Committee on Legislative
Ethics, and now the legislator would be prosecuted by a district
attorney.
MR. JOHNSTON argued that the legislation provides a better
standard for the Select Committee on Legislative Ethics to
actually refer back to AS 24.60.030 and regard it as another
standard it could use. Currently, AS 24.60.030 does deal with
legislative ethics, and it falls under the purview of the Select
Committee on Legislative Ethics to deal with that complaint.
[HB 44 was held over.]
[HCR 1 was held over.]
2:32:13 PM
| Document Name | Date/Time | Subjects |
|---|---|---|
| HCR001 & HB044 Amendment 1 1.27.17.pdf |
HJUD 1/30/2017 1:30:00 PM |
HB 44 HCR 1 |
| HB044 ver D 1.20.17.PDF |
HJUD 1/30/2017 1:30:00 PM HJUD 2/3/2017 1:15:00 PM |
HB 44 |
| HB044 ver O 1.23.17.PDF |
HJUD 1/27/2017 1:00:00 PM HJUD 1/30/2017 1:30:00 PM HJUD 2/3/2017 1:15:00 PM |
HB 44 |
| HCR001 ver J 1.20.17.PDF |
HJUD 1/30/2017 1:30:00 PM |
|
| HB044 Explanation of Changes 1.23.17.pdf |
HJUD 1/27/2017 1:00:00 PM HJUD 1/30/2017 1:30:00 PM HJUD 2/3/2017 1:15:00 PM |
HB 44 |
| HB044 Sectional Analysis 1.23.17.pdf |
HJUD 1/27/2017 1:00:00 PM HJUD 1/30/2017 1:30:00 PM HJUD 2/3/2017 1:15:00 PM |
HB 44 |
| HCR001 Sectional Analysis 1.23.17.pdf |
HJUD 1/27/2017 1:00:00 PM HJUD 1/30/2017 1:30:00 PM HJUD 2/3/2017 1:15:00 PM |
HCR 1 |
| HB044 Sponsor Statement 1.23.2017.pdf |
HJUD 1/27/2017 1:00:00 PM HJUD 1/30/2017 1:30:00 PM HJUD 2/3/2017 1:15:00 PM |
HB 44 |
| HCR001 Conflict of Interest flow Chart 1.27.17.pdf |
HJUD 1/27/2017 1:00:00 PM HJUD 1/30/2017 1:30:00 PM HJUD 2/3/2017 1:15:00 PM |
HCR 1 |
| HB044 Supporting Document-Letter AKPIRG 1.23.17.pdf |
HJUD 1/27/2017 1:00:00 PM HJUD 1/30/2017 1:30:00 PM HJUD 2/3/2017 1:15:00 PM |
HB 44 |
| HCR001 Leg Research Report 15-423m 1.20.17.pdf |
HJUD 1/27/2017 1:00:00 PM HJUD 1/30/2017 1:30:00 PM HJUD 2/3/2017 1:15:00 PM |
HCR 1 |
| HB044 Leg Research Report 15-422m 1.20.17.pdf |
HJUD 1/30/2017 1:30:00 PM HJUD 2/3/2017 1:15:00 PM |
HB 44 |
| HB044 Fiscal Note LEG-SESS 1.25.17.pdf |
HJUD 1/27/2017 1:00:00 PM HJUD 1/30/2017 1:30:00 PM |
HB 44 |