Legislature(2013 - 2014)CAPITOL 120
03/28/2014 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB235 | |
| HB205 | |
| SB64 | |
| HB282 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 205 | TELECONFERENCED | |
| += | SB 64 | TELECONFERENCED | |
| + | HB 282 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 235 | TELECONFERENCED | |
HB 235-CONFIDENTIALITY OF APOC COMPLAINTS
CHAIR KELLER announced that the first order of business would be
HOUSE BILL NO. 235, "An Act requiring the Alaska Public Offices
Commission to maintain the confidentiality of certain
proceedings, documents, and information."
1:11:19 PM
REPRESENTATIVE BOB LYNN moved to adopt the Committee Substitute
(CS) for HB 235, Version 28-LS1130\Y, Bullard, 3/27/14 as the
working document.
REPRESENTATIVE GRUENBERG objected.
1:12:03 PM
REPRESENTATIVE PETE HIGGINS, Alaska State Legislature, turned
the discussion over to his staff.
THOMAS STUDLER, Staff, Representative Pete Higgins, Alaska State
Legislature, noted an addition to the title of HB 235 regarding
sanctions for those who file false or frivolous complaints [to
the Alaska Public Offices Commission (APOC)]. A new paragraph
was added to Section 1 to say that the proceedings relating to
an investigation are confidential until it is determined that a
violation has occurred. In Section 2, he said the following was
added:
Except to the extent that the confidentiality
provisions are waived by the subject, the complainant
shall keep confidential the fact that they have filed
a complaint under this section, as well as the
contents of the complaints filed. If the complainant
violates any provision of the confidentiality, the
commission shall immediately dismiss the complaint;
however, the dismissal of the complaint does not
affect the right of the commission or any other person
to initiate a complaint based on the same factual
information.
1:13:35 PM
MR. STUDLER said that a new subsection was added in Section 3 to
allow for appealing the APOC decision to the Superior Court by
either the complainant or the respondent within 30 days of the
decision. He added that Section 4 was amended by adding that
the complaint and all documents relating to the investigation
are confidential until it has been determined that a violation
has occurred. "We went on by adding a new [subsection], (m),"
to further define that within 30 days after accepting the
complaint, the commission shall determine whether the facts
substantiate an allegation and whether there is credible
evidence for further investigation and proceedings. The
commission may delegate this duty to make that determination to
an employee/investigator of the commission to expedite the
process, he said.
1:14:40 PM
MR. STUDLER turned to Section 5, which says that the commission
needs to make a determination, based on the facts before it,
whether the allegation has merit. "One of the things that we
added in here is that ... if you make a false claim ... the
commission shall dismiss the complaint and order the complainant
to reimburse the respondent for his costs and court costs." The
respondent is to reimburse APOC as well, he said. Additionally,
APOC may decline to consider any further complaints filed by
that particular individual. The CS also includes [subsection
(o)] as follows:
The sanctions authorized in this section are not
exclusive and do not preclude any other remedies or
rights of action the respondent may have against the
complainant.
MR. STUDLER stated that the updates are to protect the process
of APOC so that when complaints are brought forward, they are in
good faith and have merit.
1:16:32 PM
REPRESENTATIVE LYNN asked about a complaint with multiple
allegations and one is deemed to be frivolous.
MR. STUDLER said he believes that the allegations with merit
would go forward.
1:17:37 PM
REPRESENTATIVE LYNN asked how APOC would be reimbursed.
MR. STUDLER answered that if the person files allegations and
some were substantiated and others were not, he believes the
commission would have to look at the clear and convincing
evidence of whether the allegations were filed in bad faith.
Since some of the allegations were upheld, "I would have to say
that would not be in bad faith, because there was merit to those
cases." He added that he did not want to speak for the
commission.
1:18:32 PM
REPRESENTATIVE LYNN said he would like to have that clarified.
PAUL DAUPHINAIS, Executive Director, Alaska Public Offices
Commission, Alaska Department of Administration, said he is not
authorized to speak for the commission, and "we try not to deal
with hypotheticals."
1:19:25 PM
REPRESENTATIVE GABRIELLE LEDOUX asked about a complaint being
dismissed and the complainant decides to file an appeal with the
Superior Court, "then are all records of the Superior Court
sealed?" Normally things are openly filed with the Superior
Court, she explained. If the idea is to have information
confidential until there has been a decision that an APOC rule
has been violated, "what are you going to do with the Superior
Court?"
1:20:21 PM
MR. STUDLER said he will get back on that.
REPRESENTATIVE NEAL FOSTER noted the changes in Section 4, where
all documents relating to an investigation are confidential
until it is determined that a violation has occurred. "If no
violation occurs, is there any provision that maybe the
documents do become open, but maybe not for, say, a period of
six months?"
MR. STUDLER said "we" had not thought about that. He said he
would have to respond later.
1:21:35 PM
REPRESENTATIVE HIGGINS said he sees no reason why an allegation
without merit should become public. The purpose of HB 235 is to
ensure that only violations with merit become public. "You're
thinking that for historical reasons you want to put it in
there, but as an individual and a citizen of the state, I don't
see where that would be." He said he cannot speak for the
commission on that issue because he really has not thought about
it.
1:22:38 PM
REPRESENTATIVE LYNN asked if the exonerated defendant can
request that the allegation become public in order to expose
what a "rotten" person the complainant is.
REPRESENTATIVE HIGGINS said, yes, there is a provision allowing
the defendant to waive confidentiality.
1:23:14 PM
REPRESENTATIVE FOSTER said he totally understands that side, but
he thought that people might want to know what happened, and the
file could become open "sometime down the road" for the sake of
transparency. He noted that he did not feel strongly one way or
another.
REPRESENTATIVE GRUENBERG said he spoke with Mr. Studler about
the bill extensively. This is the only APOC bill the committee
is likely to see this year, he stated, and he has a couple of
concerns. This year's APOC report made one suggestion for a
legislative change. He noted that the legislators used to have
to do a post-election 10-day report. The APOC report suggested
reinstituting that obligation, which requires legislators to
review their contributions and expenditures that occurred in a
flurry a few days before the election. "As it is now, there is
no post-election report for months, and so huge $100,000 fines
accrue, and if we did a simple report to recap that 10 days
after, that would probably catch a lot of these things and bring
those potential fines back into line."
1:25:44 PM
REPRESENTATIVE GRUENBERG noted that the statute, AS
15.13.390(a), states that if a person violates the law by not
having a properly completed and certified report, like if
something is missing or if the report is late, there is a civil
penalty of not more than $500 per day. He said APOC has a
regulation, 2AAC50.855, which states that the amount of the
penalty must be determined by multiplying the daily maximum by
the number of the days the report was late or incomplete. "It
changes a maximum into a benchmark and results in huge unfair
fines," he stated. "It is terrifically unjust, and what they
have to do now is apply mitigators that really don't apply-just
to bring this back into line."
REPRESENTATIVE LANCE PRUITT asked if Representative Gruenberg is
indicating that there should be a report a week or two after the
election instead of the one due on February 15.
1:28:22 PM
REPRESENTATIVE GRUENBERG said it would not eliminate the year-
end report; it would be in addition to it. Legislators once had
to do it and "we simply repealed it because it was extra work."
The result has been people getting hit with huge fines because
they messed up in some manner, and the mistake was not caught
for three months because people do not look at the reports until
they do their next one. By reinstituted the above-mentioned
report, people will triple check, which will eliminate the fines
except for the 10-day period.
CHAIR KELLER announced that HB 235 was set aside.
1:31:20 PM