Legislature(2005 - 2006)CAPITOL 124
04/13/2005 08:30 AM House FISHERIES
| Audio | Topic |
|---|---|
| Start | |
| HB252 | |
| HB241 | |
| HB252 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 241 | TELECONFERENCED | |
| *+ | HB 252 | TELECONFERENCED | |
HB 241-BOARD OF FISHERIES CONFLICTS OF INTEREST 9:33:46 AM CO-CHAIR LEDOUX announced that the next order of business would be HOUSE BILL NO. 241, "An Act relating to participation in matters before the Board of Fisheries by members of the board; and providing for an effective date." 9:34:11 AM REPRESENTATIVE WILSON, sponsor of HB 241, explained: [The bill] implements changes recommended by the Joint Salmon Industry Task Force to the Board of Fisheries conflict of interest policy. The Board of Fisheries is not as effective as it should be when members with the most knowledge and experience in certain areas must excuse themselves when those issues arise. The Board of Fisheries is a lay board and it consists of members of various backgrounds. Some are involved in commercial fishery, some are recreational fishermen, some are fishing lodge owners, and others are just public members with an interest in fishing. Under current policy the Department of Law is very conservative in their recommendation of who should participate, and when there's even a perception of a conflict, they get really nervous about this and recommend that their members excuse themselves, therefore avoiding any possible litigation at all. The committee took an at-ease from 9:35:39 AM to 9:36:32 AM. REPRESENTATIVE WILSON returned to HB 241. She commented that members are appointed to the board because they are knowledgeable in particular areas, but currently if there's even the perception that a member might have a conflict of interest, that member can't vote or even discuss the topic. She stated that HB 241 would require that members declare a conflict of interest, but then would still be allowed to participate in discussion and voting. She continued: This bill now requires the Board of Fisheries members to disclose a personal or a financial interest on the record before participating in matters before the board. If they disclose a conflict of interest, this would not disqualify a board member from participating in and voting on the matters before the board. 9:38:48 AM STEVEN DAUGHERTY, Assistant Attorney General, Alaska Department of Law (DOL), stated that the DOL has proposed an amendment that would address a few technical issues. He said: We believe that the intent of the bill is to allow a board member to participate in a matter before the board after disclosure despite having a personal or financial interest in a matter before the board, not as a broad exemption from the Ethics Act. And in order to accomplish this and make sure that the board members can in fact participate, we need to add some additional language to the bill. 9:40:19 AM MR. DAUGHERTY continued: There are two problems with the original language [of HB 241]. First, there is an express exemption provided from AS 39.52.120(b)(3); that's the provision regarding use of state time, property, equipment, and facilities. But there is no exemption for (b)(4), which is the taking or withholding of official action in order to affect a matter in which the public officer has a personal or financial interest. And in fact, most controversies involving the board would involve (b)(3), not (b)(4). So we think that an express revision regarding (b)(4) is needed. And we have suggested language to that effect.... 9:41:21 AM MR. DAUGHERTY stated that the second issue of concern to DOL is the last sentence on page 2, lines 9-10, which reads, "AS 39.52.240 does not apply to matters related to this subsection." He said that AS 39.52.240 is a section that allows the board to ask for advisory opinions. He stated that DOL thinks that cutting off the board's access to advisory opinions is very problematic. He continued: The ethics act will still be applicable. There are some specific exemptions and they will be able to vote despite a personal or financial interest, but there are a number of other areas of the ethics act that will still be applicable, such as those dealing with improper guests, [AS 39.52.130]; improper use and disclosure of information, [AS 39.52.140]; improper representation, [AS 39.52.160]; declaration of potential violations, [AS 39.52.220] - although there will be a partial exemption provided for that by this bill - and other sections of [AS 39.52.120], such as those dealing with seeking other employment or contracts, accepting or receiving or soliciting compensation for official duties, coercion of subordinates for political purposes. Those issues may still arise from time to time, and in fact, the provisions regarding gifts frequently arises with the board. And we think that it's important to preserve the board's ability to seek advisory opinions when issues arise, even concerning issues that they have received an exemption for under this bill. The board may still want an opinion from the [DOL] just to provide them with some assurance that what they're doing is right, and so ... when concerns are expressed to them they can pass it off on the [DOL] rather than having to deal with constituents who are angry about their participation. MR. DAUGHERTY concluded that DOL would like to see that sentence removed from the bill. 9:43:55 AM MR. DAUGHERTY clarified that Amendment 1, labeled 24G-1, 4/8/2005, (1:15 PM), would say: Page 2, lines 9-10 Delete "AS 39.52.240 does not apply to matters related to this subsection." Insert "Participation in a matter before the board after disclosure is not considered to be taking or withholding official action in order to affect a matter in which the public officer has a personal or financial interest under (b)(4) of this section." 9:45:16 AM REPRESENTATIVE WILSON moved to adopt Amendment 1, labeled 24G-1, 4/8/2005, (1:15PM). There being no objection, Amendment 1 was adopted. 9:45:44 AM PAUL SHADURA, Kenai Peninsula Fishing Association (KPFA), testified in support of HB 241. He said that the bill is crucial to allowing the Board of Fisheries to deliberate important issues without political interference. He pointed out: Current board policy requires that all adopted proposals must have four votes of the board in order to pass. No debate, argument, or information is allowed by an individual who are conflicted out. No system for defining conflict is in policy except that the chair would rule on a conflicted issue for the individual if requested or contested. This is very awkward and allows for definition with subjective reasoning. Our experience with board members since statehood is that decisions by the board requires much personal knowledge by every board member that is available. It is expertise that prompts individuals to volunteer their services to the people of the state. MR. SHADURA continued: Current interpretation of conflict seems to define commercial fishing as having more of a benefit to individual board members than commercial guiding, yet definition in statutes that address this legislative conduct states that even nonmonetary or benefits to an individual can also be implied as a conflict. This bill allows the affected users in the state a fair and equal voice to represent the issues openly, thoroughly, and fairly. ... It is our ardent belief that a good board is one that takes into consideration all available information and discusses it from all aspects of the problem, and that this allows for more temperate and long term decision making, something the current [Board of Fisheries] does not incorporate at present. 9:48:57 AM ROLAND MAW, Executive Director, United Cook Inlet Drift Association (UCIDA), stated that he is a commercial fisherman and he supports HB 241. He commented, "These fisheries are getting very complicated and I think require some of the best discussion and analysis and participation that we can bring to that as citizens, and removing any barriers that would prevent that participation and that discussion, I think, is a positive thing...." 9:50:16 AM CARL CROME, stated that he has been a fisherman for 40 years, and is a seiner, a gillnetter, and a troller. He said: Me and mine are very unhappy with our people getting conflicted out at the board meetings. It's already lopsided in the sport fish favor, and when our people are ... conflicted out it makes us very unhappy. I don't have to remind you that we're the largest employer in the state, that we pay more taxes than any industry except the oil companies, and I suppose we have a lot more votes than any other too. ... Our people need to stay in there. Because somebody knows something is not a good reason to conflict them out. And we feel this is very unfair. 9:51:39 AM DON FOX, Secretary, Kodiak Fish and Game Advisory Committee, noted that he represents the advisory committee to Board of Fisheries. He also stated that he is a commercial fisherman. He testified in support of HB 241. He remarked: The governor appoints these people because they have this expertise in these areas, and they're not even allowed to deliberate or vote, and ... I think what applies to the legislature should apply to the [Board of Fisheries]. These people need to put their knowledge and expertise to use. 9:52:29 AM ART NELSON, Chair, Board of Fisheries, testified in support of HB 241. He said the he'd like to comment on two general areas where the conflict of interest regulations have been problematic for the board. He said: The first one is the difficulties that it presents oftentimes with the operation of the board and our functioning and our deliberations. As the chairman of the board, I'm kind of responsible to be the ethics supervisor for all the members, and so of course before each meeting I go around to the various members, particularly those that may have conflicts arising with the different meetings we have ahead of us and ... those conflicts can be either financial or personal in nature, and can be interpreted very broadly. ... Oftentimes even if there's going to be a perceived conflict that we are advised to be conservative in that and ... it's no offense meant to the [DOL]; it's their job to be conservative and make our decisions be not only legally valid but defensible in court. ... The board spends upwards of 40 or sometimes more days per year in our regulatory meeting, and the last thing I want to have happen is ... having an extensive regulation that took a lot of time to put together be struck down because we failed to follow the letter of the ethics rules. MR. NELSON continued: What's also problematic ... is the potential for losing a board member due to a conflict of interest. We're a seven-member board, and regardless of how many board members are present and participating. So whether there's absences and/or conflicts, we always still have to have four votes to carry any motion. And so especially if it's compounded with an absence by another board member, a lot of times it becomes very difficult for us to take regulatory action. MR. NELSON noted that some well-qualified people are not even interested in being on the board because they know they wouldn't be allowed to vote on important matters. 9:56:43 AM JERRY McCUNE, Lobbyist, United Fisherman of Alaska (UFA), noted that UFA submitted a letter in support of HB 241 which is in the committee packet. He reiterated that voting proceedings are difficult for the board if some of the board members are conflicted out. He also opined that it is unfair that commercial fishermen are conflicted out more often that lodge owners. 9:57:25 AM REPRESENTATIVE HARRIS commented: Why would you want to be on the Board of Fisheries ... if you didn't have an interest in the subject matter being displayed in front of you? And obviously if you're someone representing commercial fishing, for instance,... you're probably appointed to bring that point of view to the board. And if you're not allowed to vote on the [issue] when it comes up, what good are you? REPRESENTATIVE HARRIS compared the situation to being in the legislature; representatives are elected to bring their personal viewpoints to the discussion. CO-CHAIR LEDOUX commented that she had received a lot of written testimony from her constituents in Kodiak in favor of the bill. 9:59:45 AM REPRESENTATIVE ELKINS moved to report HB 241 as amended out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 241(FSH) was reported from the House Special Committee on Fisheries.
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