Legislature(2007 - 2008)BARNES 124
03/21/2007 08:30 AM House FISHERIES
| Audio | Topic |
|---|---|
| Start | |
| HB186 | |
| HB15 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HJR 14 | TELECONFERENCED | |
| += | HB 186 | TELECONFERENCED | |
| += | HB 15 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 15-BOARD OF FISHERIES CONFLICTS OF INTEREST 8:53:57 AM CHAIR SEATON announced that the final order of business would be HOUSE BILL NO. 15, "An Act relating to participation in matters before the Board of Fisheries by members of the board; and providing for an effective date." CHAIR SEATON directed attention to the spreadsheet in the committee packet that details the boards and commissions that have reported recusals due to conflicts. This spreadsheet provides the aforementioned information from 2003-2006. The three recusals in the Board of Fisheries (BOF) occupied 42 regulatory proposals, which is very different than other boards in which the recusal is often only related to one particular item. He pointed out that in 2006 there were 3 recusals that covered 103 regulatory proposals, but that doesn't include instances in which an individual didn't participate by leaving the room. Chair Seaton drew particular attention to the May 7, 2003, memo from the Boards Support Section of the Alaska Department of Fish & Game (ADF&G), which relates that one person is recused on many different proposals. He then noted that a representative for the State Medical Board is on line if the committee is interested in hearing its process regarding recusals and conflicts of interest. 8:58:07 AM LESLIE GALLANT, Executive Administrator, State Medical Board, Division of Corporations, Businesses, and Professional Licensing, Department of Commerce, Community, & Economic Development (DCCED), began by clarifying that she does not sit on the board, but rather is an employee of the state. She explained that the majority of the cases in which a member of the State Medical Board would recuse himself/herself involve actions against individuals. Due to the small size of the physician population in Alaska, it's reasonable for the board member to know the individual coming before the board or have knowledge about the case itself. In that case the board member reveals the relationship or how he/she came to possess the knowledge and makes a determination as to whether he/she can be fair and impartial considering the case. If the board member's involvement is extensive, the board member would recuse himself/herself prior to the discussion of the matter and the member leaves the room. 9:00:59 AM CHAIR SEATON pointed out that the State Medical Board has regulatory authority as well as an adjudicatory authority, whereas the Board of Fisheries only has regulatory authority. Therefore, he requested that Ms. Gallant address the regulatory aspect of the State Medical Board. MS. GALLANT explained that if the board member has a vested interest in a matter before the State Medical Board, he/she must disclose that. For example, when the board considered a regulation to require a physician selling products from his/her office to disclose his/her financial interest in the sale of such products, one of the board members sold products from his office and was determined not to be the most impartial individual to determine whether the regulation should pass. The board member and the chair, who is also the ethics officer for the board, discuss whether the board member can make a fair and impartial decision on the matter and determine jointly whether the board member should recuse. 9:03:30 AM CHAIR SEATON posed a scenario in which the State Medical Board is considering a regulation involving surgery, and asked if a board member who performs surgery and who has another family member who performs surgery in the state would be recused from the discussion of the regulation regarding surgery. MS. GALLANT replied no, adding that the board wants to include those with such expertise in order to define the standard of care. 9:05:07 AM REPRESENTATIVE LEDOUX related her understanding, though, that when the board deals with a matter from which the board member's vote would directly impact his/her financial interest, that board member wouldn't be allowed to participate. MS. GALLANT clarified that there isn't a statute or regulation that prohibits the participation. However, as mentioned earlier, the board chair and the board member with an interest determine whether recusal is necessary. 9:07:21 AM CHAIR SEATON related his understanding that under the State Medical Board, members with extended family who practice medicine doesn't necessarily cause the board member to be recused. MS. GALLANT said she wasn't aware of any such case. In fact, there are parents and children who are in medical practice together. The expectation is that those who hold a professional license adhere to the ethics of the profession until proven otherwise. 9:08:33 AM REPRESENTATIVE JOHNSON inquired as to whether the State Medical Board deals with Certificate of Need program. MS. GALLANT replied no, and added that falls under the Health Facilities and Licensing Office, Department of Health. REPRESENTATIVE JOHNSON related his understanding that physicians go through a semester or two of ethics training. MS. GALLANT responded, "Not necessarily, no." 9:09:45 AM REPRESENTATIVE EDGMON inquired as to the disclosure requirements for the State Medical Board. MS. GALLANT specified that there are no written disclosure requirements. She recalled that in 1994 the State Medical Board adopted a policy by which those on the State Medical Board cannot also be an officer or member of the grievance committee, physician health committee, or complaint committee in a professional organization, such as the Alaska State Medical Association. 9:11:28 AM JIM MARCOTTE, Executive Director, Board of Fisheries, Boards Support Section, Alaska Department of Fish & Game, related that he has provided the committee with an updated spreadsheet to the "Summary of Board of Fisheries Vote Abstentions (2001-2006)" that contains the last three board meetings. The aforementioned was prepared after review of the quarterly ethics disclosure reports that are filed with the Department of Law (DOL). For any given BOF meeting there may be 50-100 proposals on the agenda. Prior to the meeting, the board members review the agenda items and identify any that are a potential conflict. At the beginning of the meeting, the board members offer their ethics disclosure statement and identify involvement in the fishery or other issues before the board. The chair will invite board member questions or discussion to clarify and then make a ruling regarding participation or being conflicted out on specific proposals. After the ruling, the full board has the option to challenge or override the chair's ruling. The aforementioned typically happens maybe once a year. Each year, a board member will have a conflict with approximately 10 percent of the proposals. Some years, the total number of proposals on which a board member will have a conflict ranges from approximately 3 percent to as high as 20 percent. Counting the members' recusals by the votes not cast amounts to about 1.5 percent of the board member votes. Typically, the most proposals that any one member will have a conflict with are, on average, 15 percent. 9:15:30 AM MR. MARCOTTE, drawing upon his review of the board, stated that it's rare when more than one board member is conflicted on a proposal. Due to the broad geographic representation of the BOF's membership, it's rare that two members would have similar interests on the same fishing topics. Of the 48 regulatory meetings in the last 6 years, 22 of those, 45 percent, had recusals by board members. He related that neither the BOF nor ADF&G have taken a position on HB 15. With regard to the question at a prior hearing regarding the necessity of a fiscal note on the requirement to perform a review if there's a sunset clause. He relayed, "We looked at that and thought that 'no' that would not be a fiscal note that that would be very easy to compile; we'd have the data through our normal tracking system." 9:17:05 AM CHAIR SEATON surmised then that Section 4 doesn't generate the need for a fiscal note. MR. MARCOTTE replied no. 9:17:29 AM REPRESENTATIVE JOHNSON asked if when a board member recuses himself/herself, it precludes that board member from discussing the issues and answering questions from the other board members. MR. MARCOTTE specified that a recused board member leaves the table when the proposal with which there's a conflict is before the board. That board member can sit in the general audience and thus not take part in the board's deliberations or voting on the particular proposal. In further response to Representative Johnson, Mr. Marcotte stated that a recused board member has the option of testifying as a member of the public. However, that's not usually the case, he noted. He confirmed that a board member has testified as a member of the public, but he didn't recall whether it was upon request of the board or upon the board member's own initiative. 9:19:36 AM REPRESENTATIVE LEDOUX inquired as to whether having the board member leave the table is specified in statute or regulation or is a tradition of the board. MR. MARCOTTE deferred to DOL. 9:20:08 AM REPRESENTATIVE EDGMON requested further explanation with regard to a board member's family interest and the perceived financial benefit of a board member. MR. MARCOTTE specified that family interest refers to the immediate family of children, parents, and spouses not the extended family of aunts, uncles, et cetera. In response to Representative LeDoux, Mr. Marcotte confirmed that immediate family would include grown children living outside of the family unit. 9:21:02 AM REPRESENTATIVE HOLMES related her understanding that the applicable definition is found in AS 39.52.960(11), as follows: (11) "immediate family member" means (A) the spouse of the person; (B) another person cohabiting with the person in a conjugal relationship that is not a legal marriage; (C) a child, including a stepchild and an adoptive child, of the person; (D) a parent, sibling, grandparent, aunt, or uncle of the person; and (E) a parent or sibling of the person's spouse; REPRESENTATIVE HOLMES then questioned whether the BOF is reading the statute a bit more narrowly and not conflicting board members who have say a brother-in-law who has a conflict. MR. MARCOTTE noted his agreement that the statute referenced by DOL as providing guidance at BOF meetings is AS 39.52.960(11). 9:23:26 AM STEVEN DAUGHERTY, Assistant Attorney General, Natural Resources Section, Civil Division (Anchorage), Department of Law (DOL), in response to Representative LeDoux's earlier question, referred to the following definition in the Executive Branch Ethics Act, AS 39.52.960(14), as follows: (14) "official action" means advice, participation, or assistance, including, for example, a recommendation, decision, approval, disapproval, vote, or other similar action, including inaction, by a public officer; MR. DAUGHERTY suggested that the committee consider the aforementioned definition in conjunction with the prohibition specified in AS 39.52.120(4), as follows: (4) take or withhold official action in order to affect a matter in which the public officer has a personal or financial interest; MR. DAUGHERTY specified that a board member with a [personal or financial interest in a matter before the board] who participates in deliberations, even if he/she doesn't vote, is in violation of the statute. 9:24:23 AM REPRESENTATIVE LEDOUX surmised then that even participating as a member of the general public would be in violation of the statute. MR. DAUGHERTY related his disagreement, adding that when the board member is participating as a member of the general public, he/she isn't acting in an official capacity. 9:25:04 AM REPRESENTATIVE HOLMES referred to the following language in AS 39.52.220(a), which read: If the supervisor or a majority of the members voting determine that a violation will exist if the member continues to participate, the member shall refrain from voting, deliberating, or participating in the matter. REPRESENTATIVE HOLMES characterized that language as well as the definition, under AS 39.52.960(11) [text provided previously], of immediate family member as fairly broad. She asked if a board member would have to recuse himself/herself if, for instance, his/her brother-in-law or sister-in-law in another town has some financial or personal interest in the matter before the board. 9:26:24 AM MR. DAUGHERTY pointed out that the statutory definition applies regardless of where the family member lives so long as the family member falls within the statutory definition of immediate family member. In further response to Representative Holmes, Mr. Daugherty confirmed that AS 39.52.960(11) is the correct statute. However, he related his understanding that terms brother-in-law and sister-in-law aren't used in the statute, although he acknowledged that it does refer to the sibling of the person's spouse. In response to Chair Seaton, Mr. Daugherty confirmed that [AS 39.52.960(11)] does include aunts and uncles. 9:28:33 AM REPRESENTATIVE JOHNSON asked if any other boards provide board members with the ability to not recuse themselves after declaring a conflict, other than the legislature. 9:28:50 AM LANCE NELSON, Senior Assistant Attorney General, Natural Resources Section, Civil Division (Anchorage), Department of Law (DOL), related that there are different standards in the federal arenas. For instance, the standard for allowing participation in spite of conflicts is a lot lower for the North Pacific Fishery Management Council (NPFMC). 9:29:12 AM REPRESENTATIVE JOHNSON asked, "In that we can actually have some effect on as the legislature?" MR. NELSON responded that he isn't aware of any, as far as state agencies. REPRESENTATIVE JOHNSON surmised then that passage of this legislation would result in the BOF being the only board in the state that allows [participation even when a member has a conflict]. MR. NELSON said he believes that's the case. However, he reminded the committee that the role of the BOF is fairly unique as it's only a regulation-making body not an adjudicatory body. 9:30:01 AM CHAIR SEATON pointed out that the State Medical Board is covered by the same statute that covers the BOF. However, when the State Medical Board is making regulations for surgery, it doesn't recuse a board member whose son, for example, is involved in surgery. He asked if Mr. Nelson would enforce such a recusal. MR. NELSON said it would depend upon the factual circumstances. He commented that these situations are difficult judgment calls to make. The BOF consistently errs on the conservative and careful side in order to avoid even the appearance of conflict. With regard to the State Medical Board, when it's making regulations that apply to most doctors in the state, it could be argued that [board members] are a member of such a large class, under the statutory authority, that he/she could continue to vote. The aforementioned happens in the sport fishing arena as a BOF member may have an area in which he/she likes to and does sport fish. Although that BOF member has a personal interest at stake in that sport fishery area, that board member is usually one of many participating in the fishery and thus recusal wouldn't be required. CHAIR SEATON opined that it seems the State Medical Board is doing exactly what is being attempted through HB 15, which is to have those with the expertise on the board and participating in creating regulations. MR. NELSON remarked that the [actions of the State Medical Board] make a good argument for HB 15. 9:33:48 AM REPRESENTATIVE EDGMON related his understanding that the goal of the BOF is to act as a lay board. He asked if there's a subtlety between a citizen-lead board and a lay board. MR. NELSON answered that it depends upon one's view. Usually when one thinks of a lay board for fisheries management, it would consist of individuals who aren't necessarily fisheries managers or biologists. The BOF is basically making decisions regarding the conservation and development of fisheries. He suggested that an expert in the aforementioned area wouldn't necessarily be the fishermen but rather biologists or individuals trained in the management of the fishery resources. To that extent, a commercial fisherman or sport fishing guide would be the lay person although he/she may have practical experience. The statute establishing the board says: "The governor shall appoint each member on the basis of interest in public affairs, good judgment, knowledge, and ability in the field of action of the board, and with a view to providing diversity of interest and points of view in the membership." Therefore, he opined that most governors appoint fishermen or others associated with the fisheries in order to fulfill the responsibility of "ability in the field of action of the board." He further opined that it's a balance between the desires to have a lay board versus fishery management experts. He surmised that when the legislature confirms the members of the board it helps make the judgment call as to the qualities of the board. REPRESENTATIVE EDGMON related his observation that it's a bit ironic that a board member may be selected based on his/her expertise or involvement, but then has to recuse himself/herself and not participate in the discussion. 9:38:14 AM REPRESENTATIVE LEDOUX recalled hearing testimony last week that the mandatory recusals were more strict for the commercial fisherman than for those board members with a financial interest in the lodges. MR. NELSON said he wouldn't say that owners of sport fish lodges are treated with a different standard, although their interest may be narrower and thus tend to create fewer conflicts. Sometimes the benefit or detriment to sport fish lodge owners posed by a certain regulatory proposal is more difficult to define and less direct than a commercial fishing permit holder. Although there may be a perception of such, he said he wasn't aware of any specific decision by the BOF to provide significant differential treatment. REPRESENTATIVE LEDOUX requested an example in which there could've been the perception that a lodge owner with a "far out" interest received favor in a particular matter. MR. NELSON commented that a lodge owner hasn't sat on the BOF for some time, save Mr. Heyano who may have some interest in sport fish guiding operations. He deferred to Mr. Daugherty. MR. DAUGHERTY stated that he isn't aware of such a [situation or perception]. MR. NELSON added that in the past there have BOF members/chairs who have owned lodges and have been conflicted out on proposals that address their specific area. 9:41:37 AM REPRESENTATIVE HOLMES inquired as to the standard for conflicts used by the North Pacific Fishery Management Council (NPFMC). MR. NELSON said he is unable to speak to the question, although he noted that it's a lower standard by which members [of NPFMC] are rarely conflicted out. MR. DAUGHERTY said he is also unable to speak to the question. CHAIR SEATON offered his understanding that the member would have to own 15 percent of the fishery under consideration. However, under the federal guidelines [members of NPFMC] are basically considered exempt from all conflicts of interest. 9:43:30 AM REPRESENTATIVE WILSON asked if anyone owns 15 percent of a fishery. CHAIR SEATON recalled one instance in which the long line cod fishery was at the point of being that concentrated. He highlighted that he didn't want to confuse the matter as it's a federal issue not a state issue. REPRESENTATIVE LEDOUX remarked that before the implementation of allocations/individual fishing quotas no one owned 15 percent of anything. Therefore, she questioned how the federal government determined who owned 15 percent of a right that didn't exist. CHAIR SEATON clarified that if there was a fleet of 10 vessels and an individual or a corporation owned 3 of the 10, that would be the basis for saying that individual or corporation had a certain amount of control of the fishery. 9:45:19 AM REPRESENTATIVE EDGMON indicated that the [best] example to compare to the BOF is NPFMC. 9:46:58 AM REPRESENTATIVE LEDOUX offered that she is uncomfortable with HB 15. She then related that she doesn't want to turn BOF into NPFMC. She emphasized that it's difficult for even the best- intentioned individual to make a decision that's totally devoid of financial benefits for that individual. She acknowledged the importance of having those [on a board] who know the subjects before the board. However, she opined that it's discomforting to go against the ethics movement in the legislature. Therefore, she suggested the possibility of allowing [board members with a conflict/financial interest] to participate in discussions, but not vote. REPRESENTATIVE EDGMON pointed out that if the aforementioned was the case for the legislature, many members would be sitting in the audience unable to vote. He recognized that those in the legislature are elected officials rather than appointed as is the case for boards. REPRESENTATIVE LEDOUX interjected that she would like to see that happen [for the legislature]. 9:49:55 AM CHAIR SEATON announced that HB 15 would be held for further committee discussion.
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