Legislature(2019 - 2020)GRUENBERG 120

03/07/2019 10:00 AM FISHERIES

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10:00:44 AM Start
10:01:14 AM Confirmation Hearing(s): Commissioner, Alaska Department of Fish and Game
10:40:11 AM HB35
11:08:38 AM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Consideration of Governor's Appointees: TELECONFERENCED
Commissioner Designee Doug Vincent-Lang, Dept.
of Fish & Game
-- Public Testimony --
Heard & Held
         HB  35-CONFLICT OF INTEREST: BD FISHERIES/GAME                                                                     
10:40:11 AM                                                                                                                   
CHAIR STUTES announced that the  final order of business would be                                                               
HOUSE BILL NO.  35, "An Act relating to  participation in matters                                                               
before  the Board  of  Fisheries and  the Board  of  Game by  the                                                               
members of the respective boards;  and providing for an effective                                                               
10:40:37 AM                                                                                                                   
REPRESENTATIVE  EDGMON  moved  to adopt  the  proposed  committee                                                               
substitute  (CS), Version  31-LS0297\M, Bullard,  3/4/19, as  the                                                               
working document.                                                                                                               
CHAIR STUTES objected for purposes of discussion.                                                                               
MATT GRUENING, Staff, Representative  Louise Stutes, Alaska State                                                               
Legislature, on  behalf of Representative Stutes,  prime sponsor,                                                               
explained the  changes to  HB 35  under Version M.   He  said the                                                               
language in the  original bill on page 3, lines  7-15, is deleted                                                               
under Version  M and no new  language was added.   Previously the                                                               
bill had redefined "immediate family  member" for the purposes of                                                               
these two boards.   This definition was in the  bill the last two                                                               
years  and there  was  no  opposition to  that,  and most  people                                                               
seemed  to be  in  support  of the  change.    However, what  the                                                               
sponsor is really trying to do with  this bill is make it so that                                                               
members can deliberate  but not vote and the  sponsor didn't want                                                               
to make  an exception  for just  these two  boards.   The sponsor                                                               
therefore chose to delete that language.                                                                                        
10:42:33 AM                                                                                                                   
REPRESENTATIVE KOPP  asked whether Version M  would allow members                                                               
of these  boards with a  conflict of  interest to vote  on issues                                                               
before the boards.                                                                                                              
MR. GRUENING replied they would not  be allowed to vote but would                                                               
be  allowed to  deliberate with  the  board.   He explained  that                                                               
under current practice  when a conflict is declared,  a member is                                                               
not allowed to  deliberate and is required to step  down from the                                                               
podium and sit in the audience  until the issue is resolved.  The                                                               
member is not allowed to offer  input on the matter on the public                                                               
record and that is the issue.   Version M would change it so that                                                               
a member [with a conflict] can deliberate but cannot vote.                                                                      
10:43:18 AM                                                                                                                   
CHAIR STUTES requested the context of the bill be presented.                                                                    
MR. GRUENING explained that HB 35  would change the way the Board                                                               
of Fisheries  and the  Board of Game  function by  allowing board                                                               
members  to deliberate  on subjects  for which  the members  have                                                               
declared a  conflict of personal or  financial interest according                                                               
to AS 39.52,  the Executive Branch Ethics Act.   Members of these                                                               
boards are  selected based  on their  knowledge and  abilities in                                                               
the  field of  action  of the  board, with  a  view to  providing                                                               
diversity in interests  and points of view in  membership.  Title                                                               
39 prohibits a member from  taking or withholding official action                                                               
in order  to affect a matter  in which the member  has a conflict                                                               
of personal  or financial interest.   Official action  is defined                                                               
as "Advice,  participation or assistance", which  could include a                                                               
recommendation,  decision,  approval  or  disapproval,  vote,  or                                                               
other similar action, including  inaction, by the public officer.                                                               
Currently, when a  conflict is determined, the  board member must                                                               
step down  and cannot participate.   Under HB 35 [Version  M] the                                                               
board member would be allowed to deliberate but not vote.                                                                       
10:44:35 AM                                                                                                                   
CHAIR STUTES  removed her  objection to the  motion to  adopt the                                                               
proposed CS.   There  being no further  objection, Version  M was                                                               
before the committee.                                                                                                           
10:44:58 AM                                                                                                                   
MR.  GRUENING  explained  the bill  would  allow  the  conflicted                                                               
member to offer  his/her input.  The conflicted  member would not                                                               
be allowed to be part of  the vote of the board regarding whether                                                               
the member  has a conflict  of interest.  Currently  the decision                                                               
on a  possible conflict  of interest  is up to  the chair  of the                                                               
board  to decide.   If  board members  disagree with  the chair's                                                               
ruling, a majority  of voting members including  the chair decide                                                               
whether a  conflict exists.   The member whose  possible conflict                                                               
is being voted  upon, is not allowed to participate  in the vote.                                                               
This  process is  consistent with  current practice.   This  bill                                                               
would enable  each of  the boards to  benefit from  the knowledge                                                               
and points of view of all a board's members.                                                                                    
MR  GRUENING pointed  out that  Board of  Fisheries and  Board of                                                               
Game  issues  tend  to be  complex  and  require  knowledge-based                                                               
solutions.  Board  members often have family  or direct financial                                                               
or personal  interests which  are tied  to the  complex knowledge                                                               
the  member would  need  in order  to  understand the  sometimes-                                                               
nuanced discussions of the board.   Members are selected based on                                                               
their knowledge of the field.   Their knowledge would benefit the                                                               
board  discussions and  be  on the  record even  if  they have  a                                                               
personal conflict of interest, but  they should not be allowed to                                                               
vote on an issue if a conflict exists.                                                                                          
10:46:39 AM                                                                                                                   
MR. GRUENING said a concern  regarding how the process is working                                                               
with  these   boards  is  that  off-the-record   discussions  are                                                               
occurring between board members.   The off-the-record discussions                                                               
are  not part  of  the public  record;  the proposed  legislation                                                               
would enable those discussions to occur  on the record.  He said,                                                               
"As a life-long  commercial fisherman, I can't tell  you how many                                                               
times I have heard or  seen really extremely qualified candidates                                                               
say  they don't  want  to  put their  name  in for  consideration                                                               
because they  know they would be  conflicted out of a  lot of the                                                               
proposals  of  which  they  have knowledge  on."    The  proposed                                                               
legislation would allow the member  with the conflict of interest                                                               
to impart  his/her knowledge before recusing  him/herself for the                                                               
vote.   This  should lead  to more  informed decisions,  stronger                                                               
resource management statewide, and  align the process with intent                                                               
regarding  boards benefitting  from  the  members  knowledge  and                                                               
diversity  of viewpoints.   Mr.  Gruening stated  that Version  M                                                               
would allow for board members of  the Board of Game and the Board                                                               
of Fisheries to  deliberate if they have a  conflict of interest,                                                               
but they could not vote on the subject.                                                                                         
MR. GRUENING  walked through the changes  in Version M.   He drew                                                               
attention  to the  language on  page  1, line  12, which  states,                                                               
"except as provided in AS 39.52.220(c)".   He stated that this is                                                               
said again  on page 2, lines  25-26, and that section  is created                                                               
on  Section 3  of the  bill, which  basically says  that for  the                                                               
Board of Fisheries and the Board  of Game only, board members are                                                               
allowed to  deliberate but  not vote.   The  only real  change to                                                               
statute  is in  Section  3 and  the other  two  changes are  just                                                               
references to the section that is created.                                                                                      
10:49:37 AM                                                                                                                   
REPRESENTATIVE VANCE  asked what course of  action is [currently]                                                               
available if  the member  does not recuse  him/herself or  cite a                                                               
conflict of interest but others feel that there is a conflict.                                                                  
MR. GRUENING replied that under AS.  39.52 there is a process for                                                               
complaints to  be filed with  the Attorney General.   He deferred                                                               
to  [Assistant Attorney  General] Bradley  Meyen for  a more  in-                                                               
depth explanation.                                                                                                              
10:50:42 AM                                                                                                                   
BRADLEY  MEYEN,   Senior  Assistant  Attorney   General,  Natural                                                               
Resources Section, Civil Division  (Anchorage), Department of Law                                                               
(DOL), responded  to Representative Vance's question.   He stated                                                               
that  two provisions  could apply:   AS  39.52.230 for  reporting                                                               
violations  and AS  39.52.310 for  complaints.   He confirmed  it                                                               
does  go through  an Attorney  General  process.   While he  does                                                               
Board  of Fisheries  issues,  there is  a  separate section  that                                                               
deals with  appeals of ethics.   He  said a process  is outlined,                                                               
and it is rather detailed.                                                                                                      
10:51:27 AM                                                                                                                   
REPRESENTATIVE VANCE  referred to Section  3 of HB  35, regarding                                                               
"financial interest  relating to the involvement  of the member".                                                               
She noted  that a  similar bill,  HB 44,  cites a  minimum dollar                                                               
amount.  She  asked whether that issue had  been considered under                                                               
HB 35 as a threshold for a conflict to be declared.                                                                             
MR.  GRUENING  answered  that the  Executive  Branch  Ethics  Act                                                               
states  less  than  $5,000  is  considered  insignificant,  while                                                               
anything $5,000  or above  would be  considered significant.   He                                                               
offered his  understanding that AS 39.52.120(1)(d)  provides that                                                               
a  stock  or  ownership  interest   in  a  business  is  presumed                                                               
insignificant if the value or  stock of other ownership interest,                                                               
including an  option to purchase  an ownership interest,  is less                                                               
the $5,000.                                                                                                                     
REPRESENTATIVE  VANCE  said  she  brings this  issue  up  because                                                               
different   bills  have   different   thresholds  for   financial                                                               
conflicts of interest.  She  asked whether Mr. Gruening knows why                                                               
the inconsistency exists.                                                                                                       
MR. GRUENING  replied he was  not sure of the  legislative intent                                                               
regarding the financial differences.                                                                                            
10:53:34 AM                                                                                                                   
REPRESENTATIVE KOPP drew  attention to the language  in Version M                                                               
[beginning on  page 2, line  31, through  page 3, line  4], which                                                               
     (c) If a member of the  Board of Fisheries or the Board                                                                    
     of  Game discloses  a  personal  or financial  interest                                                                    
     relating  to  the  involvement of  the  member,  or  an                                                                    
     immediate family  member of that member,  in a business                                                                    
     or  organization relating  to fish  or game  resources,                                                                    
     the  member is  not disqualified  from deliberating  or                                                                    
     participating in the matter.                                                                                               
REPRESENTATIVE  KOPP said  that makes  sense because  people with                                                               
industry, fishery, or  game knowledge are serving  on the boards.                                                               
He then referred to the continuing  language [on page 3, lines 4-                                                               
6], of Version M, which read:                                                                                                   
     If the supervisor  or a majority of the  members of the                                                                    
     respective  board determine  that the  member's further                                                                    
     involvement will result in a  violation of AS 39.52.110                                                                    
     -  39.52.190, the  board  member may  not  vote on  the                                                                    
REPRESENTATIVE  KOPP  opined that  that  is  good, because  those                                                               
[statutes]  address  violations,  including  improper  influence,                                                               
misuse  of official  public position  outside of  employment, and                                                               
improper representation.  He continued:                                                                                         
     What I'm having a hard  time understanding is it sounds                                                                    
     like if it doesn't fall  under that, we're still saying                                                                    
     they can't  vote if they  have a personal  or financial                                                                    
     interest.     Because  you  can  have   a  personal  or                                                                    
     financial interest but  not be in violation  ... per se                                                                    
     of how the statute says that that arrives to a misuse.                                                                     
REPRESENTATIVE  KOPP said  the legislature  tries  to ensure  the                                                               
board is  balanced so that the  voices are balanced on  the board                                                               
and to  ensure balanced outcomes.   He questioned  whether taking                                                               
away the ability to vote would throw the balance of the board.                                                                  
10:57:26 AM                                                                                                                   
MR.  GRUENING responded  that, currently,  board  members with  a                                                               
conflict  of  interest  cannot  vote.    The  language  regarding                                                               
"further  involvement   will  result   in  a   violation"  simply                                                               
describes the process  that currently takes place.   The proposed                                                               
change would allow a conflicted  board member to deliberate.  The                                                               
voting  balance  of  the  board was  considered,  but  there  was                                                               
concern regarding the possibility of  a member abusing the system                                                               
for  financial  gain.    The  sponsor  and  community  felt  like                                                               
allowing a conflicted member to vote was a step too far.                                                                        
10:58:57 AM                                                                                                                   
REPRESENTATIVE PRUITT  asked,   hy  would we  do this  with these                                                               
two boards and not others?                                                                                                      
MR.  GRUENING answered  that he  was only  aware of  this problem                                                               
with  the two  boards.   User groups  have brought  this specific                                                               
issue forward since changes/revisions to  the Ethics Act in 1988.                                                               
There  was concern  that  in  the attempt  to  fix  the Board  of                                                               
Fisheries and Board of Game,  similar changes to other boards may                                                               
result in unforeseen repercussions.                                                                                             
CHAIR  STUTES  noted that  all  the  boards and  commissions  are                                                               
different.  The Board of Fisheries  and Board of Game are some of                                                               
the few allocative boards.                                                                                                      
MR. GRUENING added  there are professional boards  that have more                                                               
members to cover  the knowledge gaps if one of  the members had a                                                               
conflict of  interest.  The Board  of Fisheries and the  Board of                                                               
Game  only a  single member  may  have knowledge  of the  subject                                                               
being discussed.                                                                                                                
11:01:37 AM                                                                                                                   
REPRESENTATIVE PRUITT  discussed his concern  that if HB  35 were                                                               
to pass, other  boards and commissions could  come forward asking                                                               
for similar regulation.                                                                                                         
MR.  GRUENING  said  he doesn't  foresee  the  mentioned  changes                                                               
occurring but agreed it would be possible.                                                                                      
REPRESENTATIVE PRUITT said  it makes reasonable sense  to allow a                                                               
[conflicted]  board member  to  participate  in discussion  share                                                               
expertise.   He said  his real  concern is  that it  appears that                                                               
currently  the conversations  are occurring  "behind the  scenes"                                                               
and  board members  may not  only  bring their  expertise to  the                                                               
conversations  but   might  be  advocating  for   something  that                                                               
personally benefits  them.  He  suggested adding language  to the                                                               
bill that would not allow a  board member to advocate publicly or                                                               
privately for something that would benefit him/her.                                                                             
MR. GRUENING  stated he thought  the Representative Pruitt  has a                                                               
fair point  and he would  look to the will  of the chair  and the                                                               
committee  regarding  whether  that  is a  change  they  wish  to                                                               
11:04:19 AM                                                                                                                   
REPRESENTATIVE  VANCE  voiced  her  concerns about  the  duty  to                                                               
create consistency  within the  boards.   She suggested  that the                                                               
committee investigate what could be  done to preemptively do what                                                               
is right  for the  public before problems  arise.   She explained                                                               
that  was   her  reason  for   bringing  up  the   dollar  amount                                                               
differences for  conflict of interests  as a legislator  versus a                                                               
board.   She said her concern  is that the public  would not want                                                               
to have  to look  up all the  differences between  the government                                                               
entities  regarding  the  various   standards  for  conflicts  of                                                               
interest.   She expressed her  desire to  keep in mind  the other                                                               
boards and commissions and their future concerns.                                                                               
11:06:32 AM                                                                                                                   
CHAIR STUTES shared  with the committee that HB 35  is the result                                                               
of  requests  by  user  groups.   She  explained  that  it  is  a                                                               
difficult situation  when someone is  on the board who  is unable                                                               
to  share  his  or  her   expertise.    Through  the  years  this                                                               
legislation has  been worked  on, there have  not been  any other                                                               
reports from boards or commission that had similar problems.                                                                    
MR.  GRUENING  noted  he  has  two  additional  letters  for  the                                                               
legislators  packets:   One from the Resident  Hunters of Alaska,                                                               
in  opposition,   and  the  other   from  the   United  Southeast                                                               
Gillnetters Association in support.                                                                                             
11:07:51 AM                                                                                                                   
CHAIR STUTES stated the bill is  one she has been working on with                                                               
the United  Fishermen of  Alaska for  many years.   She  said she                                                               
believes the bill will lead  to more informed decisions, a higher                                                               
quality   of  applicant,   and   improved   public  process   and                                                               
transparency for both boards.                                                                                                   
[HB 35 was held over.]                                                                                                          

Document Name Date/Time Subjects
CSHB 35(FSH) Work Draft ver M 03.04.19.pdf HFSH 3/7/2019 10:00:00 AM
HB 35
HB 35 Explanation of Changes Ver A to M 03.05.19.pdf HFSH 3/7/2019 10:00:00 AM
HB 35
HB 35 Fiscal Note-DAS 03.01.19.pdf HFSH 3/7/2019 10:00:00 AM
HB 35
HB 35 Informational Document BOF-BOG History and Process 03.06.19.pdf HFSH 3/7/2019 10:00:00 AM
HRES 3/29/2019 1:00:00 PM
HB 35
HB 35 Informational Document-ADF&G BOF Ethics Process Overview and Recusals 3.6.19.pdf HFSH 3/7/2019 10:00:00 AM
HB 35
HB 35 Sponsor Statement 03.05.19.pdf HFSH 3/7/2019 10:00:00 AM
HB 35
HB 35 Suporting Document SEAFA 03.02.19.pdf HFSH 3/7/2019 10:00:00 AM
HRES 3/29/2019 1:00:00 PM
HB 35
HB 35 Supporting Document UFA 03.06.19.pdf HFSH 3/7/2019 10:00:00 AM
HRES 3/29/2019 1:00:00 PM
HB 35
HB 35 Supporting Documents (Combined) 30th Legislature 03.03.19.pdf HFSH 3/7/2019 10:00:00 AM
HB 35
HB 35 ver A 02.22.19.PDF HFSH 3/7/2019 10:00:00 AM
HB 35
Doug Vincent-Lang DFG_Redacted.pdf HFSH 3/7/2019 10:00:00 AM
Confirmation Hearing Doug-Vincent Lang
HB 35 Letter of Support USAG 03.07.19.pdf HFSH 3/7/2019 10:00:00 AM
HB 35