Legislature(2007 - 2008)CAPITOL 120
02/08/2008 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB307 | |
| HB281 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 307 | TELECONFERENCED | |
| += | HB 237 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 281 | TELECONFERENCED | |
HB 281 - CAMPAIGN FINANCE COMPLAINTS 2:22:29 PM CHAIR RAMRAS announced that the final order of business would be HOUSE BILL NO. 281, "An Act extending the statute of limitations for the filing of complaints with the Alaska Public Offices Commission involving state election campaigns." [Before the committee was CSHB 281(STA).] REPRESENTATIVE LYNN, speaking as one of the bill's joint prime sponsors, said that HB 281 adds another brick to the foundation of [public] trust, and that he would like to see it reported from committee. He mentioned that he does have a conflict of interest in that as a legislator he could at some point end up violating the bill's provisions, but he is willing to take that chance because he feels building up the foundation of trust between the people of Alaska and the state's elected officials is more important than any individual legislator. He remarked that recent history clearly indicates the need for an increase in the period of time [during which a complaint may be filed] from one [and two years] to five years, and for requiring that certain records be kept for six years. He acknowledged, however, that the bill shouldn't cast too large a net regarding who must retain records, and so he would be willing to have Section 1 deleted via an amendment. He relayed that he would also be amenable to an amendment that would change who may file a complaint, from a "registered voter", to a "person". He concluded by saying that HB 281 is a proactive bill that will give the Alaska Public Offices Commission (APOC) the essential tools needed to protect the public trust. CHAIR RAMRAS noted that members' packets contain a proposed amendment [labeled 25-LS1115\K.3, Finley/Bullard, 2/8/08] that would change "registered voter" to "person". CHAIR RAMRAS, in response to a question, explained that he was considering offering a conceptual amendment that would delete Section 1 of the bill so that businesses wouldn't have the burden of retaining records for political candidates. He mentioned that he is also interested in deleting the language on page 2, lines 12-13, because he feels that when he has completed his public service as an elected official, he does not want to find himself in violation of the law simply because he didn't keep certain records for six years [after his last election]. 2:29:41 PM BROOKE MILES, Director, Alaska Public Offices Commission (APOC), Department of Administration (DOA), offered that HB 281 provides the APOC some important tools. At the top of the APOC's wish list regarding legislation, she relayed, was to have the statute of limitations pertaining to campaign disclosure [complaints] expanded from one year. She also indicated that the three other provisions of law that fall under the purview of the APOC either have no specific statute of limitations or differing ones. Although the APOC had originally requested an expansion of the statute of limitations to four years, it is amenable to the five years proposed by the bill, since some terms for statewide office are four years and there is an 18-month campaigning period. She offered her understanding that lobbyists, who also fall under the purview of the APOC, currently have a four-year statute of limitations. The bill also includes a provision regarding the retention of records, because it is difficult to conduct an investigation without access to those records. She explained that the APOC is in favor of having Section 1 of the bill removed, thereby allowing the existing AS 1513.040(f) to remain as is because it has proven to be a useful tool. MS. MILES relayed that the APOC is concerned about the bill's current proposal to change who can file a complaint, from a "person", to a "registered voter". Alaska's existing lobbying laws limit who may file a complaint to a "qualified voter", but the other laws regarding filing complaints specify that complaints must be filed by "a person", thus allowing anyone, including groups or parties, to file a complaint. If "person" is changed to "registered voter" as the bill is currently proposing, it would preclude political parties and certain groups that consider themselves watchdogs over Alaska's political process from filing complaints. And although some legislators have expressed fear that someone can currently file a complaint while hiding his/her identity behind a group or party, the APOC has never had a "secret" or "sneaky" person file a complaint because complaints are required to be sworn statements and thus anonymous complaints aren't allowed. The APOC, therefore, requests that the statutes regarding who may file a complaint be allowed to remain as is, using the broader term "person" as opposed to the proposed term "registered voter". REPRESENTATIVE SAMUELS opined that a party or "so-called watchdog group" shouldn't be allowed to file a complaint because that enables an individual to hide behind the party or group; only individuals should be allowed to file complaints. MS. MILES pointed out that although under current law a group or party may file a complaint, it is still an individual within that organization who signs the sworn statement. REPRESENTATIVE SAMUELS remarked that if that's the case, then he doesn't see the advantage of allowing groups or parties to file a complaint. Furthermore, he opined, if a person thinks that wrongdoing has occurred, he/she should be willing to file a complaint as an individual. 2:39:43 PM MS. MILES said that from the APOC's point of view, allowing groups or parties to file complaints depoliticizes the complaint process. She then relayed that the APOC is also concerned about the proposed new language to AS 15.13.380(b) on page 2, lines 24-26 - "The time limitations of this subsection do not bar proceedings against a person who intentionally prevents discovery of a violation of this chapter."; although the APOC knows that this language is meant to say that the statute of limitations doesn't apply to those who knowingly impede discovery, the inclusion of this language could raise legal issues. Another of the APOC's concerns pertains to Section 6, which proposes a new subsection to AS 24.45.131 and says in part, "(d) If a member of the commission or a member of its staff files a complaint, that member of the commission or member of its staff may not participate in any proceeding of the commission relating to the complaint." She offered that the APOC has found this provision to be unworkable. First of all, a commission member would never file a complaint, though he/she may ask staff to review facts to determine whether staff should initiate a complaint. The language in Section 6 would preclude staff from filing complaints. MS. MILES, in response to a question, indicated that different commission members have in the past recused themselves from participating in a particular complaint [because of a conflict of interest]. REPRESENTATIVE COGHILL noted that Section 9 contains similar language, and asked whether it would be better to remove Sections 6 and 9 and thereby stay with the existing procedure. MS. MILES clarified that the APOC would prefer that Sections 6, 9, and 10 be deleted [because of that language]. REPRESENTATIVE COGHILL, noting that commission members currently have authority to levy fines, said he doesn't want commission members to be the drivers of the complaints, the discoverers of all pertinent information, and the leviers of the fines. He therefore expressed favor with the concept of deleting those sections. He surmised that the aforementioned language wound up being added simply because it exists in the statutes pertaining to the Select Committee on Legislative Ethics. He expressed a preference for having a committee substitute (CS) brought before the committee that would address the concerns regarding Sections 6, 9, and 10. CHAIR RAMRAS indicated that he doesn't want to make changes to statute just for appearances sake, and that he would prefer to have a CS that only addresses specific problems with current statute. 2:47:47 PM REPRESENTATIVE LYNN pointed out the intent of HB 281 is to give the APOC and the Select Committee on Legislative Ethics the tools they need to do the job they've been created to do. MS. MILES posited that the language on page 2, lines [21-23], [which is part of existing AS 15.13.380(b),] addresses [Representative Coghill's] concern regarding commission members' activities during the complaint process, and relayed that the APOC is comfortable with that language, which reads, "If a member of the commission has filed the complaint, that member may not participate as a commissioner in any proceeding of the commission with respect to the complaint". She indicated a preference for not having a similar restriction placed on APOC staff. 2:49:28 PM SHIRLEY R. DEAN, Commissioner, Alaska Public Offices Commission (APOC), Department of Administration (DOA), concurred, and relayed that as far as she is aware, no commissioner of the APOC has ever filed a complaint. She characterized the proposed expansions of the period of time during which a complaint may be filed and the period of time that records must be kept as benefiting the people of Alaska and [APOC commissioners]. REPRESENTATIVE DOOGAN asked whether APOC staff, if made aware of a possible violation, can both file a complaint and then investigate it. MS. MILES said that under current law staff can do so as long as the [complaint] is filed within one year. MS. DEAN added that if a possible violation doesn't fall under the purview of the APOC, the APOC would refer it on to the appropriate entity. REPRESENTATIVE DOOGAN surmised that at issue is the length of the statute of limitations regarding when complaints can be filed. MS. MILES concurred. 2:52:51 PM JANET DeYOUNG, Chief Assistant Attorney General - Statewide Section Supervisor, Labor and State Affairs Section, Civil Division (Anchorage), Department of Law (DOL), in response to a question, said that the current penalties for a violation of the programs administered by the APOC range from $10 per day to $50 per day depending on the specific program. Although the APOC has discretion to take various factors into account when assessing a penalty, the penalty structure is pretty much the same for each program regardless of the violation. REPRESENTATIVE COGHILL asked what would be a reason for filing a civil action under [the laws being addressed by the bill]. MS. DeYOUNG, to illustrate an example, relayed that she'd participated in an action that was brought by a citizen under the legislative financial disclosure law, and that particular case was a challenge to an election on the basis that the conflict of interest statement was inaccurate. REPRESENTATIVE COGHILL surmised, then, that there are two courses of action available: one pertains to the ability of the APOC to levy a penalty, and the other pertains to the ability of a person to bring a civil suit. Extending the time period that records should be kept speaks to both types of action. REPRESENTATIVE SAMUELS asked how soon the APOC must act after a complaint is filed. MS. DeYOUNG said that under current law - a combination of regulation and statute - there is a specific time period during which the matter must come before the APOC. Also, either the complaint filer or the respondent can request expedited attention, which [if granted] requires that action occur within 60 days. REPRESENTATIVE SAMUELS surmised, then, that if the APOC doesn't act on a complaint within 60 days, it can't then go forward with the complaint. MS. DeYOUNG clarified that the 60-day deadline only pertains to the expedited process. Furthermore, extensions can be granted for those complaints that are not going through an expedited process. She offered as example situations involving special sessions and legislative immunity from compulsory process. That legislative immunity always goes into effect any time the legislature is in session, and, to some extent, limits the APOC's ability to conduct investigations and hold hearings. In response to a question, she concurred that in such instances, once the special session is over, the APOC can continue with the complaint process. 2:59:12 PM JOYCE ANDERSON, Ethics Committee Administrator, Select Committee on Legislative Ethics, Alaska State Legislature, offered that the complaint process of the Select Committee on Legislative Ethics is a little bit different than that of the APOC. She noted that HB 281 is proposing to change the statute of limitations regarding when a complaint may be filed with the Select Committee on Legislative Ethics to five years. Ms. Anderson said she would echo Ms. Miles's comments regarding any "person" filing a complaint versus only a "registered voter". Furthermore, although the Legislative Ethics Act has always stipulated that any "person" can file a complaint, with the term "person" including individuals and organizations, Ms. Anderson said that she isn't aware of any complaint ever having been filed with the Select Committee on Legislative Ethics that was filed by anyone other than an individual person. CHAIR RAMRAS, after ascertaining that no one else wished to testify, closed public testimony on HB 281. 3:02:12 PM REPRESENTATIVE HOLMES made a motion to adopt Amendment 1, labeled 25-LS1115\K.3, Finley/Bullard, 2/8/08, which read: Page 2, line 18: Delete "registered voter [PERSON]" Insert "person" Page 3, lines 14 - 15: Delete "registered [QUALIFIED] voter" Insert "person [QUALIFIED VOTER]" Page 3, line 24: Delete "registered voter" Insert "person" Page 4, line 17: Delete "registered voter" Insert "person" Page 4, line 27: Delete "registered voter" Insert "person" Page 5, lines 6 - 7: Delete "registered [QUALIFIED] Alaska voter" Insert "person [QUALIFIED ALASKA VOTER]" REPRESENTATIVE SAMUELS objected, and said he agrees with the goal of depoliticizing the complaint process, but disagrees that [allowing organizations and parties to file complaints] will accomplish that goal. MS. MILES said that the APOC feels that allowing organizations and political parties to file complaints would make the complaint process less "Jane versus Joe." She suggested that perhaps using the term "individual" would alleviate members' concerns with the terms "person" and "registered voter", but mentioned that she's not yet had a chance to discuss this suggestion with APOC commissioners. REPRESENTATIVE SAMUELS said he doesn't have a problem with allowing someone who is not a registered voter to file a complaint. However, he remarked, it seems that replacing "person" with "individual" would have the same effect as replacing "person" with "registered voter" with regard to the APOC's view that using the term "person" depoliticizes the complaint process. MS. MILES, on the issue of who has filed complaints with the APOC, offered her understanding that Representative Lynn's staff has prepared some statistics which might prove helpful to the committee. 3:05:44 PM MIKE SICA, Staff to Representative Bob Lynn, Alaska State Legislature, on behalf of Representative Lynn, one of the joint prime sponsors of HB 281, relayed that research of the APOC's files indicates that complaints have been filed by the Democratic Party, the Republican Party, the Republican Moderate Party, the Alaska Independent Party, various districts' political organizations, the Alaska Public Interest Research Group (AkPIRG), the Anchorage Education Association, the "Cook Inlet Driftnet Association," the Alaska Support Industry Alliance, and the "Denali Citizens Against Taxes." He also noted that in researching other states' statutes regarding who can file a similar complaint, he couldn't find even one state that restricted filing to a "registered voter" or a "qualified voter". REPRESENTATIVE SAMUELS questioned whether other states define "person" to include a corporate entity. MR. SICA indicated that he'd not researched that point. REPRESENTATIVE HOLMES offered her understanding that in legal usage, the word "person" generally includes groups and corporations. CHAIR RAMRAS, in response to a comment, surmised that the question seems to be whether using "person" in Alaska law provides an individual trying to manipulate the complaint process too much anonymity. REPRESENTATIVE LYNN pointed out that even in instances where a complaint is filed by an organization, it is still an individual that signs the complaint. He said he assumes that before a group files a complaint, it has met and agreed to file the complaint. CHAIR RAMRAS argued that that might not be true in all cases, particularly given the structure of some groups. REPRESENTATIVE DOOGAN said he finds it difficult to conceive of a situation in which an accusation against someone engaged in political activity can be depoliticized. He opined, therefore, that the legislature shouldn't be doing anything to limit the class of people who can file a complaint, particularly since there has not been any compelling reason offered for doing so. 3:09:55 PM REPRESENTATIVE HOLMES said that given that even if it's a group that's filing a complaint, it's an individual who has to sign the complaint form, and so the respondent would have the name of that person. She surmised that it would be helpful for the respondent to know that a complaint is coming from a group as opposed to just a single person. REPRESENTATIVE SAMUELS expressed concern that an individual wanting to file a complaint could simply create an organization and then use the name of that organization to label the respondent of the complaint and make him/her look bad in the media. REPRESENTATIVE DOOGAN said that one reason a group might decide to file a complaint is so that the cost of proceeding with the compliant will be borne by the group rather than just an individual. CHAIR RAMRAS asked how much time and expense is involved in filing a compliant. MS. MILES said it depends on the complexity of the complaint. For example, some complainants have come forth with significant documentation, which takes time and money to compile, and some complainants come forth after obtaining legal advice, which usually comes at some cost. REPRESENTATIVE COGHILL, referring to Amendment 1, noted that the change proposed to page 5, lines 6-7, of the bill pertains to proposed AS 39.50.100 - Enforcement by private citizens - and to bringing a civil action. He indicated that he would prefer, therefore, that that provision remain as is in the bill and not be expanded to include groups or parties. 3:15:52 PM REPRESENTATIVE COGHILL made a motion to amend Amendment 1 to remove the change proposed to page 5, lines 6-7, of the bill. REPRESENTATIVE HOLMES objected. MS. MILES explained that the civil actions referenced in proposed AS 39.50.100 would be addressed by the courts, not the APOC. MS. DeYOUNG added that typically the Alaska Court System (ACS) does not restrict plaintiffs in a civil action, and that there might be constitutional issues raised by providing limitations on access to the courts. REPRESENTATIVE COGHILL asked whether the existing language of AS 39.50.100 has been problematic. MS. DeYOUNG said that the one civil action she is aware of was brought by two individuals and presumably they were qualified Alaska voters, and so she has not seen the existing language challenged. REPRESENTATIVE DOOGAN asked whether, if he were to file a complaint and the APOC chose not to act on it, he could then bring a civil action in order to force the APOC to act. MS. DeYOUNG said the action referenced in AS 39.50.100 is a direct action brought by a citizen, and would result in a proceeding in superior court. However, if a complaint is filed with the APOC but the complainant is not satisfied with the APOC's action, there is an appeal process available - that would be an appeal into court. REPRESENTATIVE HOLMES noted that lawsuits are often brought by companies and groups, and thus she would prefer to leave the language of Amendment 1 as is. 3:19:11 PM A roll call vote was taken. Representatives Samuels, Dahlstrom, Coghill, and Ramras voted in favor of the amendment to Amendment 1. Representatives Lynn, Holmes, and Doogan voted against it. Therefore, the amendment to Amendment 1 was adopted by a vote of 4-3. REPRESENTATIVE SAMUELS maintained his objection to Amendment 1, as amended. 3:20:06 PM A roll call vote was taken. Representatives Lynn, Holmes, Doogan, Coghill, and Ramras voted in favor of Amendment 1, as amended. Representatives Dahlstrom and Samuels voted against it. Therefore, Amendment 1, as amended, was adopted by a vote of 5-2. CHAIR RAMRAS asked the committee to next consider the APOC's recommendation regarding the deletion of [certain sections]. REPRESENTATIVE COGHILL surmised that the issue is whether a staff member could file a complaint and then continue to participate in that complaint process, whereas if a commissioner files a complaint, he/she must then recuse himself/herself from the proceeding. MS. MILES concurred. She indicated that the problematic language is, "or a member of its staff" in Section 6 of the bill. REPRESENTATIVE COGHILL surmised that a conceptual amendment could address that point, noting that some of the sections containing that problematic language also contain the proposed increase to the period of time in which complaints may be filed. REPRESENTATIVE COGHILL made a motion to adopt Conceptual Amendment 2, to remove from Sections 6, 7, 9, and 10 references to the APOC's staff members. REPRESENTATIVE DOOGAN objected. He said he is not certain that Conceptual Amendment 2 would alleviate the APOC's concerns. MS. MILES, in response to comments, clarified that the commissioners act as adjudicators and therefore should not be filing a complaint and then continuing to be involved with the proceeding pertaining to that complaint. 3:24:11 PM REPRESENTATIVE DOOGAN offered his belief that Conceptual Amendment 2 as previously stated wouldn't allow for that, and suggested a revision. REPRESENTATIVE COGHILL offered his understanding that staff members should be able to file a complaint and then participate in any forthcoming proceeding. REPRESENTATIVE COGHILL then withdrew Conceptual Amendment 2. MS. MILES said that the APOC is amenable to restricting a commissioner from filing a complaint and then participating in the complaint process, but doesn't wish to similarly limit staff members, because there have been times, during the normal course of business, when staff have been responsible for filing a complaint if no other person has done so, and staff should be allowed to then participate in the complaint process. CHAIR RAMRAS said he is not sure he supports the changes proposed to HB 281, and cautioned against being too reactive to current events. 3:29:26 PM REPRESENTATIVE LYNN opined that it bodes well for the legislature to be reactive to recent circumstances. REPRESENTATIVE COGHILL expressed favor with expanding the time period during which complaints may be filed. He also relayed that it was a staff member that discovered his violation of [a filing deadline]. REPRESENTATIVE SAMUELS observed that he should have objected to the withdrawal of Conceptual Amendment 2, because it appeared to address the APOC's point that staff should be able to file a complaint [and participate in the complaint process] because that's their job. He said he is thinking that the elimination of Sections 6, 9, and 10 would make the bill better. REPRESENTATIVE COGHILL pointed out, though, that simply deleting the aforementioned sections would also effect changes to the proposed longer time period for filing a complaint. REPRESENTATIVE DOOGAN said he supports extending that time period. In response to a comment, he said he would like to have more time to consider the bill. REPRESENTATIVE COGHILL indicated that he would be willing to work with the sponsor to address the APOC's concerns. 3:34:06 PM REPRESENTATIVE LYNN made a motion to adopt Conceptual Amendment 3, to delete Section 1 from HB 281 and renumber the remaining sections accordingly. There being no objection, Conceptual Amendment 3 was adopted. CHAIR RAMRAS mentioned that he still has a concern regarding Section 2 - the section addressing the preservation of records. MS. MILES said that the APOC supports the preservation of records for a period of six years under the campaign disclosure statute because it will assist the APOC in conducting investigations; six years will cover the proposed five-year period during which a complaint may be filed plus one year. [CSHB 281(STA), as amended, was held over.]
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