Legislature(2021 - 2022)BUTROVICH 205
04/12/2021 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB82 | |
| SB9 | |
| SB15 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 15 | TELECONFERENCED | |
| += | SB 82 | TELECONFERENCED | |
| += | SB 9 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
SB 82-ELECTIONS; ELECTION INVESTIGATIONS
1:37:43 PM
CHAIR REINBOLD announced the consideration of SB 82, SENATE BILL
NO. 82, "An Act relating to elections and election
investigations."
1:38:23 PM
CORI MILLS, Senior Assistant Attorney General, Labor & State
Affairs Section, Civil Division, Department of Law, Juneau,
Alaska, began a PowerPoint on SB 82. She said the purpose of SB
82 is to authorize the attorney general to conduct civil
investigations into election law violations and to bring civil
enforcement actions if a violation is found.
1:39:28 PM
MS. MILLS turned to slide 3. She highlighted that under the
current Title 15, Chapter 13, the Alaska Public Offices
Commission (APOC) handles campaign finance violations. This bill
relates to initiatives, petitions to gather signatures, voter
residency and candidate filings. Currently, if the Division of
Elections identifies suspicious behaviors related to an absentee
ballot application or someone files a complaint, its only option
is to refer it for criminal investigation and prosecution.
However, the division does not have any investigative authority.
This bill gives the division another tool it can use when it
identifies any suspicious behavior. This bill would provide the
Department of Law with civil investigative powers similar to
consumer protection investigations.
1:40:49 PM
MS. MILLS explained that civil investigations differ from
criminal investigations in many ways. First, the process for
civil cases is not as lengthy as for criminal cases. Next, the
evidentiary standard of proof differs. The state must adhere to
constitutional standards in criminal cases since the state could
potentially take away someone's freedom. The evidentiary
standard of proof in criminal cases is beyond a reasonable
doubt, whereas civil cases use a preponderance of evidence
standard. This means the state must prove it is more likely than
not the conduct happened or that the action was unlawful.
Finally, the flow of information is different. In civil cases,
it is possible to acquire information to assist the division in
making determinations that the director must make by statute.
However, law enforcement holds this information confidential in
criminal cases, so the division may not hear about it until
after charges are filed. She characterized this as providing
another layer of tools for civil cases.
1:42:29 PM
SENATOR MYERS wondered if this structure allows the department
to move a case from civil to criminal.
MS. MILLS answered yes. SB 82 will not limit criminal
investigations or prosecutions because the department could
conduct concurrent investigations. She stated that the
department needs to be mindful of when evidence can be gathered
for both investigations and when it must be gathered
independently. DOL can determine which avenue is appropriate or
if both are warranted.
1:43:43 PM
SENATOR SHOWER asked whether law enforcement will get additional
training on election laws and procedures and conversely if the
Division of Elections will get additional training on law
enforcement procedures.
MS. MILLS explained that these cases will be investigated by an
investigative unit within the Department of Law. These cases
will be handled similarly to how the department conducts
consumer protection cases unless the Alaska State Troopers refer
the cases for criminal prosecution. DOL's consumer protection
investigators are trained on civil investigative techniques. She
did not recall if it was by regulation or policies and
procedures. It makes sense to create this civil layer for
election violations since AST may not prioritize election
violations as high as some criminal cases.
1:46:17 PM
SENATOR SHOWER asked if she could report back on whether this
will be codified or set by policy. He highlighted his concern
that policies often change with each administration.
MS. MILLS agreed to do so.
1:47:01 PM
SENATOR KIEHL asked what efforts the Division of Election would
make to train the Division of Election staff on pre-
investigative techniques.
MS. MILLS answered that determinations on complaints or
allegations would be made by the division, in consultation with
DOL, as to whether the allegation is true, whether the complaint
is considered a legal violation, a frivolous complaint, or in
compliance with the law. The Division of Elections would not
conduct a pre-investigation since the bill does not give the
division any investigative authority. She commented that this
was intentional and she would be happy to elaborate.
1:48:15 PM
SENATOR KIEHL said it would be helpful to know why the
complaints must be filed with the Division of Elections if that
agency will not decide if the complaints are valid.
1:48:29 PM
SENATOR SHOWER expressed concern about whether the Division of
Election staff will have adequate training so staff will know
what to look for and how to respond to the allegations.
MS. MILLS offered to try to address some of the points.
1:49:20 PM
MS. MILLS said many models exist for housing election
investigations. Election investigations could be housed in the
Secretary of State's office, which is the lieutenant governor's
office; the Board of Elections for states without a division; or
in the attorney general's office. The administration decided to
house the election investigations in the attorney general's
office because DOL uses a similar process for consumer
protection complaints. Since DOL has a criminal division, it can
collaborate with the civil division due to confidentiality in
the department. It is more cost-effective to use the existing
structure rather than creating an entirely new infrastructure
within the Division of Elections.
1:51:08 PM
MS. MILLS reviewed slide 6, which listed two examples where
civil investigations and enforcement actions could have been
beneficial. The first example related to suspicious absentee
ballot applications in the 2018 House District 15 case led to
filed criminal charges. Initially, the Division of Elections
received suspicious absentee ballots with anomalies, including
signatures that looked the same, or a substantial number of
people appeared to live in one motor home. The Division of
Elections began working with the criminal division and law
enforcement, which was appropriate. However, the Division of
Elections lacked the authority to determine whether these voters
were valid voters and who signed the applications. Suppose DOL's
civil division had an investigator with authority to conduct
election investigations. In that case, the Division of Elections
could have referred the names on the suspicious ballots to the
civil division's investigator. If so, the division may have
resolved the case much more quickly. It may have been possible
to go to court to force compliance for any violations.
1:52:34 PM
SENATOR HUGHES asked for clarification on when cases are
considered civil or criminal because she tends to think of civil
cases as between two parties. If SB 82 were law, she asked
whether it would it be necessary for a party to file a complaint
to initiate action or if the case could be triggered by election
staff observing suspicious behavior and reporting it.
MS. MILLS answered the latter. If the Division of Election's
staff identified suspicious activity, the division could refer
the issue to the DOL's civil division. The investigation would
be held confidential until the civil division acquired enough
evidence to go to court and file an action.
SENATOR HUGHES asked if the Division of Elections would file the
civil complaint.
MS. MILLS acknowledged that was correct. Just as in consumer
protection cases, DOL would investigate the case. Sometimes DOL
will alert parties about a violation and achieve voluntary
compliance. Otherwise, the attorney general would file a case on
behalf of the Division of Elections but the division of
elections would be involved.
SENATOR HUGHES asked for a list of activities covered under
APOC's jurisdiction and to identify any gaps that would fall
under DOL's civil division.
1:55:55 PM
SENATOR SHOWER referred to the scenario on slide 6. He expressed
concern that in seeking voluntary compliance, the civil division
would need to alert the violator. He expressed concern that the
violator will not be prosecuted for the crime once the violator
is alerted that the case will be pursued as a civil case. He
asked how confidentiality is maintained.
MS. MILLS responded that this illustrates another reason to
house election investigations in the attorney general's office.
She said DOL handles civil and criminal Medicaid fraud. She
acknowledged that it is important to be careful when proceeding
with the investigations to avoid alerting the bad actor in cases
that should be criminally enforced. There may be some aspects
that need to be referred as criminal cases.
SENATOR SHOWER asked who would make the referrals.
MS. MILLS answered that the attorney general would make the
referrals.
1:57:58 PM
CHAIR REINBOLD asked if there are penalties if someone informs
the violator.
MS. MILLS answered that the state has laws it can enforce if
someone tips off a violator, such as obstructing an
investigation, which would apply to civil and criminal cases.
She offered to research the specific statutes that would apply
and report back to the committee.
1:58:56 PM
MS. MILLS referred to the second example on slide 6, the
signature gathering for the oil and gas initiative 190GTX. A
lawsuit was filed after the lieutenant governor certified the
oil and gas signatures. The lawsuit alleged that petition
gatherers were receiving more than one dollar per signature,
which is prohibited by statute. She said she would set aside the
interpretation question on whether signature gatherers were
being paid too much. The complainant came forth just prior to
the lieutenant governor's decision to certify the petition. At
the time, if DOL had had the civil investigative tools in place,
the department could have referred the complaint to the civil
division. The department could have resolved the case more
quickly, she said. The department could have reviewed the
contracts to determine if they violated the law. The lawsuit
process required filing discovery to acquire that information.
2:00:36 PM
MS. MILLS discussed the complaint referral process on slide 7.
The attorney general would also have independent authority to
conduct investigations. Under SB 82, the division will review
the complaint and determine whether it warrants investigation
once a complaint is received. If not, the department would
dismiss the complaint. If the complaint merits further review,
it would be forwarded to the attorney general's office. The
attorney general has the discretion to conduct an investigation,
which is similar to law enforcement or prosecutorial discretion.
The cases will be prioritized if the attorney general is
inundated with complaints.
2:02:49 PM
SENATOR HUGHES asked for assurance that the determination would
be objective rather than subjective. She asked if the Division
of Elections would have access to legal advice for its
assessment process. She said she would prefer strict criteria be
developed that the division must follow.
MS. MILLS answered that the bill provides a standard to
determine if the complaint is frivolous or alleges some type of
violation. Someone might think an action or behavior constitutes
a violation or is illegal, but it is not. The division will
consult with the Department of Law (DOL) on these matters.
2:04:20 PM
THOMAS FLYNN, Assistant Attorney General, Information and
Project Section, Department of Law, Anchorage, Alaska, stated
that [AS 15.56.140] (l) in SB 82 defines frivolous. He
characterized the definition as a standard one in law, including
in Civil Rule 11. It read:
(1) "frivolous" means
(A) not reasonably based on evidence or on
existing law or a reasonable extension,
modification, or reversal of existing law; or
(B) brought to harass the subject of the
complaint or to cause unnecessary delay or
needless expense;
2:04:49 PM
SENATOR HUGHES stated that the Division of Election's staff are
not attorneys. She asked what assurances could be made that the
division staff will be trained or if they will seek legal advice
from DOL.
MS. MILLS answered that currently, DOL's attorney assigned to
the Division of Elections works very closely with the division.
She assured members that the division does not take action
without consulting the DOL. Further, DOL works with the division
on pamphlets and procedures used when determining which votes to
count or not count. She said she anticipates DOL will provide
the division with examples of how the statute works to allow the
division to implement the statute consistently. She clarified
that the division director would be making these decisions.
2:06:26 PM
SENATOR SHOWER expressed concern about the number of complaints
that the division and the attorney general could handle. He
asked whether the penalty provisions would be codified.
MS. MILLS responded that two types of penalties apply. One
addresses compliance; the second would require paying attorney
fees and costs if DOL prevails in the lawsuit. In addition, DOL
could enforce civil penalties against the complainant as ordered
by a court. Civil penalties can range from zero to $25,000,
depending on the severity of the violation.
2:07:27 PM
SENATOR SHOWER asked again how DOL would handle large numbers of
complaints in terms of training or prosecution.
MS. MILLS answered that the Division of Elections already has a
high volume of complaints. The division anticipates it can
continue to handle the complaints. She pointed out that DOL
prepared a fiscal note for the referrals to the department. She
explained it already takes more than one attorney to assist the
division in peak times. DOL currently has an election team. She
said DOL would need additional resources including an
investigator and an attorney. The department would use its
consumer protection investigator as part of the team. She
anticipated that complaints would be made post-election and
during the initiative process. She explained that DOL envisions
both investigators being cross-trained to handle election or
consumer protection complaints.
2:09:45 PM
SENATOR KIEHL asked for the volume of complaints the Division of
Elections anticipates. He expressed concern that the provisions
in SB 82 will provide an avenue for campaigns to attack their
opponents.
MS. MILLS deferred to Ms. Fenumiai to respond.
2:10:49 PM
GAIL FENUMIAI, Director, Division of Elections, Office of the
Lieutenant Governor, Juneau, Alaska, responded that she does not
have the means to predict the number of complaints. Still, in
consultation with DOL, she believes that the division could
handle them.
2:11:31 PM
SENATOR KIEHL referred to the complaint process shown on slide
7. When the division receives a complaint, the division will
make a determination whether the complaint is frivolous. He
asked whether an aggrieved complainant is entitled to an appeal.
MS. MILLS responded that currently, the bill does not provide
for an appeal process, but the attorney general has independent
authority, so a complainant could informally appeal to the
attorney general.
2:13:06 PM
MR. FLYNN provided a sectional analysis of the bill. He
summarized the bill as follows [original punctuation provided]:
This bill would add a section to the Elections Title
15 chapter 56.
Subsection (a) would allow anyone can file a written
complaint alleging a violation of state election laws
or regulations to the Division of Elections. The
complaint must be filed within 30 days after an
election or 30 days after the alleged violation
occurred, whichever is later.
Subsection (b) directs the Division of Elections to
refer alleged violations of campaign finance laws
under AS 15.13 to the Alaska Public Offices Commission
(APOC). The division has the discretion to refer all
other complaints to the attorney general. If the
complaint is incomplete, frivolous, or does not allege
a violation, the division can request additional
information or it could dismiss the complaint.
2:13:59 PM
Subsection (c) allows the attorney general to
investigate an alleged violation identified by a
complainant, the division, or the attorney general.
Subsection (d) authorizes the attorney general to
conduct an investigation by subpoenaing witnesses for
documents, holding hearings under oath, sending
interrogatories and examining records.
Subsection (e) provides that the records or
intelligence resulting from the investigations are not
public records, except that the attorney general may
issue statements describing the activities that
violate election law.
Subsection (f) directs the attorney general to inform
the Division of Elections of the results of an
investigation with the option to submit a report. If
the complaint against a state agency or employee has
merit, the division will make efforts to take
corrective action. The records and intelligence
information resulting from the investigation remain
confidential unless they are submitted to a court or
used by the division as the basis for a course of
action.
2:14:56 PM
Subsection (g) allows the attorney general to sue for
injunctive relief after the investigation provided the
alleged violation is not a violation of campaign
finance laws.
Subsection (h) allows the attorney general to seek a
civil penalty of not more than $50,000 per violation
along with reasonable fees and costs, including the
cost of the investigation.
Subsections (i) and (j) allow the division and the
attorney general to adopt regulations to implement
this section.
Subsection (k) clarifies that the person filing the
complaint may also file an independent civil action in
superior court.
Subsection (l) defines frivolous, state agency and
state employee.
2:16:01 PM
SENATOR HUGHES asked whether the requirement that complaints
must be filed within 30 days of an election was adequate. She
stated that tight races are often not decided quickly. She
suggested that DOL could respond at the next hearing.
[SB 82 was held in committee.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 82 Presentation.4.12.21.pdf |
SJUD 4/12/2021 1:30:00 PM |
SB 82 |
| SB 82 Sponsor Statement version A.pdf |
SJUD 4/12/2021 1:30:00 PM |
SB 82 |
| SB 82 version A.PDF |
SJUD 4/12/2021 1:30:00 PM |
SB 82 |
| SB 82 Sectional Analysis version A.pdf |
SJUD 4/12/2021 1:30:00 PM |
SB 82 |
| SB 82 Law Fiscal Note.pdf |
SJUD 4/12/2021 1:30:00 PM |
SB 82 |
| SB15 Amdnement G.5 Hughes.pdf |
SJUD 4/12/2021 1:30:00 PM |
SB 15 |
| SB15 Amendment G.6 Hughes.pdf |
SJUD 4/12/2021 1:30:00 PM |
SB 15 |
| SB15 amendment G.3 Kiehl.pdf |
SJUD 4/12/2021 1:30:00 PM |
SB 15 |