Legislature(1997 - 1998)
02/17/1998 08:12 AM House STA
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 105 - ETHICS/LOBBYING/CAMPAIGN FINANCE Number 0588 CHAIR JAMES announced the next order of business is CSSB 105(FIN) AM, "An Act relating to legislative and executive branch ethics; relating to campaign finances for candidates for state office; relating to the conduct and regulation of lobbyists with respect to public officials; relating to the filing of disclosures by certain state employees and officials; making a conforming amendment to the definition of 'public official' for employment security statutes; and providing for an effective date." Number 0621 REPRESENTATIVE HODGINS said at the last meeting there was a motion to remove Section 8, page 8. JOE DONAHUE, Member of the Legislative Ethics Committee Office, said he is available to answer questions or clarify the committee's position via teleconference. SUZIE BARNETT, Professional Assistant to the Legislative Ethics Committee, said she is also available to answer questions or clarify the committee's position via teleconference. Number 0680 REPRESENTATIVE HODGINS said he made the motion to delete Section 8, at the last State Affairs Committee meeting after lengthy discussion. Sec. 8. AS 24.45 is amended by adding a new section to read: Sec. 24.45.165. Spouses and cohabitant of legislators. (a) A spouse of or a person cohabiting with a legislator may not engage in lobbying the executive branch of state government or the legislature during the legislator's term of office. (b) In this section, (1) engage in lobbying" means to act as a lobbyist; (2) person cohabiting with" means a person who is cohabiting with another person in a conjugal relationship that is not a legal marriage. REPRESENTATIVE ELTON said sometime the perception of conflict is as disastrous as the conflict itself and that Section 8 is more of a perceptual section than a reality section. He asked Representative Hodgins to expand on why Section 8 may not be appropriate. He believed that allowing spouses, or close associations of legislators to lobby does raise a public perception problem. REPRESENTATIVE HODGINS replied the disclosures that we do, we do have a close relationship disclosure that we would make. As long as that is disclosed to the public, he didn't have a problem with removal of Section 8. He said if we didn't have the forms that we filled out, and they were due yesterday, on close relationship the he would say, "Yes, Section 8 definitely needs to be in there." But he thinks the public is safeguarded. REPRESENTATIVE ELTON stated he agrees with Representative Hodgins with Subparagraph 1, but he was not sure that the disclosure forms covers somebody in number 2, which is a person cohabiting with. Number 0791 REPRESENTATIVE VEZEY said his objection to the proposed amendment [meant to say Section 8] is that we have a great disparity in the definition of "lobbyist." He indicated everyone in the legislature knows that most lobbying done on the legislature is by public officials, who are by definition exempt from lobbying restrictions. He said, "If we pass this, this is just another creation of another chasm between the private sector and the public sector. We're saying it's okay for a legislator to be married to a public official who has a very strong vested interest in public policy, but they can't be married to a private sector person who has a vested interest in public policy. And I have great difficulty with that." CHAIR JAMES asked Representative Vezey what side he was arguing on. REPRESENTATIVE VEZEY replied the he is opposed to Section 8, and is in favor of the proposed amendment. CHAIR JAMES stated what she is frustrated with SB 105 and the issue of ethics is that, in order to impose what the public or whoever else determines is ethical or unethical, you have to clamp down so far that you eliminate any possible perception of ethic violations. You make it almost unworkable for people to be doing this job. For example, she said, "Some of the responsibilities that we have, there are a lot of really good people out there that would be good legislators and they absolutely refuse to put themselves on the line for it." Number 0867 CHAIR JAMES said she believed they are going too far. She said it's the same thing she says about the "open meetings," which she is supportive of. But the problem she has with designing the rules of open meetings is that in order to keep two people from talking about something they shouldn't be taking about, you make a rule that says they can't be together without somebody else watching - to put it really extensively. Chair James believes that's what they are doing in this particular case. CHAIR JAMES said she has mixed feelings on this issue because there is a perception that if you are living with a person, that person shouldn't be a lobbyist. There is reality to that, but there is what is called disclosure. She stressed she didn't like this bill, and quite frankly probably won't vote for it. She explained it delineates what you can do to eliminate the perception that you're not doing something right. She believes what they're trying to do is to make people do impossible things. Chair James noted she agrees with Representative Vezey's analysis and concluded by saying, "We shouldn't tell people who they can be married to either." For that reason, she is in support of the deletion of Section 8. She mentioned it doesn't fix the bill, but it might help it a little bit. REPRESENTATIVE ELTON said, in response to some of Chair James' comments, there is a significant difference between a public official on salary testifying on behalf of a public agency. He believes there is a big difference between that person, if that person is described as a lobbyist, than there is between a lobbyist who has a private client with a negotiated lobbying contract that could amount to a significant amount of dollars and is not a public agency. There is a distinction between the two. CHAIR JAMES said she didn't have a problem, if that representative or that senator, stands up and discloses the conflict they might have because their lobbyist spouse, or spousal equivalent, is lobbying for a particular group and make it so the public is aware. She said the test is, if they don't like it they'll remove him or her. She it seems to her that the public ought to be in charge. REPRESENTATIVE VEZEY asked Representative Elton to explain the difference between a person trying to represent the private sector before the legislature and a person trying to represent the public sector. Number 1048 REPRESENTATIVE ELTON pointed out, one is working for a public agency on behalf of theoretically all Alaskans. The other would be working on behalf of some narrower interest groups. He said if we accept the premise that working in government, you're working on behalf of all Alaskans that would be the difference. REPRESENTATIVE BERKOWITZ said, "The size of this net is pretty peculiar, and if we're trying to limit the impact of lobbying on legislators why are we limiting it to spouses or spousal equivalents. It seems to me that if legislators are susceptible to persuasion it's likely to come from friends or other members of the family. And the size of this net, I don't think catches everybody. And I'm not sure you can design a net that catches all kinds of lobbying." Representative Berkowitz said the size of the net should be addressed at some point. CHAIR JAMES responded the net doesn't work. Number 1125 BEN BROWN, Legislative Administrative Assistant to Senator Tim Kelly, Alaska State Legislature, came before the committee. He said Section 8 is a policy call and informed the committee that the Ethics Committee didn't feel comfortable banning spousal lobbying, they felt more comfortable in putting a disclosure requirement in. BEN BROWN responded to Representative Hodgin's assertion that disclosure requirements in existing law are adequate. He said, "I don't think they are, the one that we put in for legislative staff, in Section 23 of the bill requires disclosure of new lobbying associations within 48 hours." Sec. 23. AS 24.60.070 is amended by adding a new subsection to read: (d) When making a disclosure under (a) of this section concerning a relationship with a lobbyist to whom the legislative employee is married or who is the legislative employee's spousal equivalent, the legislative employee shall also disclose the name and address of each employer of the lobbyist and the total monetary value received from the lobbyist's employer. The legislative employee shall report changes in the employer of the spouse or spousal equivalent within 48 hours after the change. In this subsection, "employer of the lobbyist" means the person from whom the lobbyist received amounts or things of value for engaging in lobbying on behalf of the person. MR. BROWN continued, "During the course of a session, the current disclosure form that has to be filled out by the 15 of February, well now that it's in, if your spouse or spousal equivalent went and picked up 15 new lobbying contracts between now and the end of session no one would know about that until next February. So that's why I don't think the current -- it's very good and well to take out the ban but I think you need to put in a disclosure requirement similar to what's in 23 [Section 23] to (indisc.) Similar public policy. It's a policy call." Number 1173 REPRESENTATIVE HODGINS asked if that disclosure policy was in this bill. MR. BROWN replied, "For legislative employee spouses and spousal equivalents, in Section 23, we made the change when the Senate took away the right for legislators spouses and spousal equivalents to lobby. So if you want to take this out, it would probably be prudent to put in a heightened disclose requirement for the legislator's spouses and spousal equivalents. In fact, Amendment K.17, which I distributed to you with a memorandum ... , puts in a contingency provision for doing that as we discussed last week. So if this ban were found unconstitutional that would happen. So if you want to go ahead and cut that one off at knees you can take out Section 8 and put in a disclosure requirement that is similar." Mr. Brown believes it will give the information to the public in a more timely fashion that the current system would. Number 1228 CHAIR JAMES stressed they cannot deal with the disclosure and the proposed amendment at the same time. She indicated she agrees with Mr. Brown that disclosure is the way to go. The proposed amendment deletes lines 5 through 12, on page 8, (which is the entire section). Chair James asked for a roll call vote. Representatives Hodgins, Ivan, Vezey, James and Berkowitz voted for the amendment. Representative Elton voted against it. Therefore, the amendment passed by a vote of 5 to 1. CHAIR JAMES mentioned they have a number of amendments and asked Mr. Brown to address them. Number 1357 MR. BROWN referred to the first batch of amendments, they were accompanied by a memorandum dated February 5. He said the batch has five amendments. The first being KA.36. CHAIR JAMES asked for an at ease in order to locate that amendment. TAPE 98-19, SIDE A Number 0012 CHAIR JAMES indicated she did not have the February 5 packet. She asked Mr. Brown to start with KA.11. MR. BROWN said amendment KA.11 is an attempt to address a problem and the specificity of the Legislative Ethics Code governing the use of public resources by legislators for partisan purposes. He mentioned there was a somewhat well publicized case of a legislator using his office, staff and state stationary to send out a mailing that was sent to only members of one political party. He said, "It was done expose-facto to a political activity so it thanked the persons that received the letters from participating in the activity so it wasn't a call to action (in advertising terminology), but it was in the eyes of the Ethic's Committee a partisan purpose that he sent the letter out for." Number 0120 REPRESENTATIVE HODGINS said he wished Mr. Brown would say, when he discussed that case, that he had received the office allowance. That he was taking the office allowance to Legislative Audit which is a lot different from if he'd received that lump sum - then he could do what he was doing. MR. BROWN said to clarify, that the legislators receive a six thousand dollar annual allowance that they can either take as personal income, and therefore have no restrictions on the use or expenditure of. Or they can have it accounted for, through reimbursable receipts a submission process through the Legislative Affairs Accounting Office. He explained, if they choose the reimbursable receipts process then there are restrictions on what the money can be spent on. It has to be related to legislative purposes. MR. BROWN said, "At the same time, if he had taken the money as personal income, he still would not have been able to use the state laser printer or staff time in the eyes of the committee, if what he did was wrong, and I'm not trying to make a judgement on that I'm just saying it was a gray area, the committee came down on the side of saying, 'This is too partisan for our liking.' And so, Amendment KA.11 attempts to put in language that governs the use of public resources for things that are arguably partisan." He read: A legislator or legislative employee may only use public funds, facilities, equipment, services or other assets or resources in a matter that involves partisan politics if the public purpose of the activity outweighs the partisan political purpose. Number 0241 REPRESENTATIVE BERKOWITZ asked what does that mean. MR. BROWN replied he thinks legislative activity, from time to time will unavoidably carry a bit of partisan air about it. He explained that it's simply trying to establish a balancing test whereby if you look at a specific action, or use of state resources, and you want to say, "Well, it seems to be a little partisan because it is trumpeting the party line but at the same time it trumpets the party line in such a way as to affect a public policy goal, which is why the person ran for office in the first place." He reiterated it's an attempt to establish a means of balancing partisan versus a public purpose. It specifically refers to the example of mailings to members of only one political party giving that an assumed political partisan purpose that can be outweighed. Number 0320 REPRESENTATIVE BERKOWITZ said he understands what Mr. Brown is trying to do, but there's just no way that you can write letters to one party and have that not be a partisan activity. He stressed it's just not feasible, it is clearly part of electioneering, it's clearly, in his mind, outside the bounds of what's allowed. REPRESENTATIVE BERKOWITZ said, "When you talked about that instance as being a gray area, there was nothing gray about it in my mind, it was black and white and that was in the black, it was wrong. To sit here after the fact and try to excuse that kind of behavior, and then trying to make an exception for it with this amendment, I think it sends the wrong signal to everyone out there. The signal your sending is that, if a legislator sends letters to members of his own party alone, that somehow that can be acceptable with state funds, that's just not possible in my mind. That's clearly partisan, it's clearly outside the bounds of what we should be ethically allowed to do." Number 0411 MR. BROWN said this amendment is to clarify what was apparently not as clear as it should have been. He indicated he drafted this in conjunction with the drafter whose worked on most of the legislative ethics bill, and in conjunction with the legislative ethics committee staff. Mr. Brown indicated they did not react to it with as much destain, or perhaps contempt. He suggested, if there was more clearer or effective language to propose as a substitute, by all means please. REPRESENTATIVE BERKOWITZ asked what is the inspiration for this amendment. MR. BROWN replied he believes it is to prevent future misunderstandings of the code when it comes to using public resources of partisan purposes. REPRESENTATIVE BERKOWITZ asked who concocted the idea behind this amendment. Number 0551 MR. BROWN said, "I don't know that there was the concoction of an idea in the process of its being drafted, I was aware from having watched the legislative ethics process over the course of the last few years of the problem, and the committee was aware of several desires on the part of other legislators to address the problem. And frankly, I did come up with this idea which was put into this language by the drafter and if it's entirely inadequate, that's not a problem. But, at the same time I think it's hard to say that there's no language that could go into the statute that would make things clearer. If you think that anything that goes to members of one political party is unrelentingly partisan, they by merely removing that last sentence of this amendment, we affect the policy (indisc.) that you seem to espouse, I believe. Perhaps amending the amendment would solve your problem." CHAIR JAMES indicated she agrees with Representative Berkowitz. Number 0624 REPRESENTATIVE HODGINS stated this would cover mailings, telephones, faxes, any facilities the state has. He asked, "So if I call somebody, and it turns out to be a Republican, then I need to get on the phone and call a democratic or else I'm in violation." MR. BROWN replied the only specific siting is a group mailing. The ban on the use of resources applies to all state resources, however, a phone - if you called 15 Republicans in the course of one day and didn't call any Democrats, and you called each of the 15 Republicans (and it was a long-distance call), and you called them all to ask them to go to a meeting, I think that would be the sort activity this amendment sought to ban. CHAIR JAMES asked for order. She then asked Mr. Brown if it would be simpler to say, "That legislators cannot do a mass mailing or group mailing that is political in nature because it is designed to go to one political party with using state resources." Chair James indicated it was questionable in her mind what they can and can't do with their campaign funds because they might not have any, because they can't keep it. They have tightened the rope so tightly, that it's going to make it almost impossible for people to do their jobs without worrying every step they take or that they are doing something wrong. She concluded prompt disclosure of these issues be the issue and let the public decide whether or not that's right or wrong. Number 0810 CHAIR JAMES asked if it would be better to deny a partisan mailing. MR. BROWN responded that it is possible to use unused campaign assets for legislative mailings in the course of ones holding office. He said they are called "legislative office accounts" and explained they are going to change the name as not to confuse them with the Legislative Affairs Agency's administered office account (which is in another proposed amendment they have). MR. BROWN reiterated it is possible to do that, and that is disclosed through Alaska Public Offices Commission (APOC), the public office expense term accounts (which he is seeking to have them called), those are subject to annual disclosure to APOC. Mr. Brown explained, "So if you spent that money on a mailing to members of one party it would be all right. The problem comes in - are you going to do that yourself at home, with campaign volunteers, or are you going to have your staff do it on your state laser printer." Number 0865 CHAIR JAMES said of course you're not going to have your staff do it. The fact that you're not going to mail it from the legislature, you're going to mail it from home using a campaign account that you would be using, not your personal account. She stated they need to make it specifically clear what you can and can't do, she also thinks it is too wordy. Number 0923 SUZIE BARNETT, Legislative Ethics Committee, said if they were to separate out production and mailing for partisan purposes, she could see many members of the committee feeling very comfortable with prohibiting partisan production and mailings. She indicated there could easily be a public purpose involved with a partisan activity, for example she is often asked, "Is it okay if I go speak to the Young Republicans or Young Democrats, I've been asked to speak on my new health care plan." Any number of topics that are totally related to a partisan activity, and there are many times when public purpose outweighs the partisan portion of the activity. Ms. Barnett concluded, "So, I'm not giving you a committee perspective on the up or down on mailings, but there are times when there is a public purpose, I think you're on the right track." CHAIR JAMES agreed. Number 1010 REPRESENTATIVE ELTON believes they are making a fairly simple issue very complicated. He thinks most of them realize, as a result of past circumstances, what is or isn't allowed. Or at least realize when they need to ask a question of the Ethics Committee. Representative Elton said he believes this amendment creates a lot of fog because it says you can't do it unless you can show substantial evidence that a public purpose for the mailing exists. That complicates things, he doesn't believe this amendment is necessary. REPRESENTATIVE ELTON asked Mr. Brown who do you present the substantial evidence to and do you do it previously to the mailing or after the mailing. MR. BROWN replied, "You, I think would have the option since it doesn't specify. I think the actual presentation of substantial evidence to defend you from a charge that you violated the Ethics Code, would come in the course of a formal investigation. Hopefully it wouldn't get that far. You would probably be wise to go ahead and start presenting your substantial evidence when you call Suzie [Barnett] up on the phone and say, 'Can I do this, or if I were thinking about doing this, could I do this.' If it's really substantial and you really believe it's going to get you off this hook. I certainly don't see any problem in deleting the last sentence of the amendment if that is collectively wisdom of the House State Affairs Committee is that it makes the ban on partisan activity more affective." Mr. Brown asked Ms. Barnett how the new subsection (i) would read without the last sentence. CHAIR JAMES indicated she didn't have a real problem with the decision that the whether or not is a public purpose or a partisan purpose. If there is any question the people could call the Ethics Committee and ask for advice. But this specific one, she thinks it needs to be written that the production and mailing of partisan material are prohibited. Number 1163 MS. BARNETT stated she doesn't have the amendment in front of her but believes they are on the right track. She suggested they check in on Mr. Donahue for a committee perspective. CHAIR JAMES read the following amendment: A legislator or legislative employee may only use public funds, facilities, equipment, services, or other assets or resources in a matter that involves partisan politics if the public purpose of the activity outweighs the partisan political purpose. A group mailing, addressed to members of only one political party is presumed to have a partisan political purpose. The legislator or legislative employee may overcome that presumption with substantial evidence that the public purpose of the mailing outweighs the partisan political purpose. MS. BARNETT asked it was her goal to delete that entire subsection. CHAIR JAMES replied yes. Her suggestion is, to make it perfectly clear, the producing and mailing of political party are prohibited. MS. BARNETT said she believes that was what Ethics Committee was intending in their past decision and it was the House decision that later came back and said, "Well it looks a little different to us." Number 1252 MR. DONAHUE explained he was not speaking for the entire Ethics Committee. He noted the committee originally had no problem, but now they would because of the House's decision to reverse it. Mr. Donahue believes there may well be a need for an amendment so that the [ethics] committee has a clearer idea of the legislature's intent in regard to the use of state resources for partisan political purposes. MR. DONAHUE indicated it still doesn't define what are or aren't partisan political purposes. He said the second half of that was intended apparently to say that mailing was one of those kinds of partisan political purposes for which the amendment was there. He said there may be other kinds, and there could still be mailings that somehow weren't bad. The committee would have to take a careful look because of the decisions they made and the House's reversal. He concluded there is a need for some clarity and this is going toward it, but he is not sure it's there. Number 1324 CHAIR JAMES asked Mr. Brown what he thought about coming back with better language. MR. BROWN said he would be glad to. CHAIR JAMES asked for a motion to either table it or turn it down. She asked what was the will of the committee. Number 1369 REPRESENTATIVE BERKOWITZ pointed out that the amendment hasn't been moved, they can just turn the page. CHAIR JAMES thanked Representative Berkowitz for pointing that out. She indicated there was ten more minutes. MR. BROWN stated Amendment KA.17 is now redundant. Having passed Representative Hodgins' amendment to delete Section 8 of the bill, putting in contingency language for the ban on spousal lobbying no longer makes sense. He let them know he will be preparing an amendment that puts a disclosure requirement in for legislative spouses. Number 1412 MR. BROWN stated the proposed Amendment KA.18 is an attempt to standardize terminology. The bill as currently written, puts in a requirement that legislative employees compensated at range 19 or higher, submit legislative financial disclosure forms on an annual basis (similar to those currently submitted by legislators and legislative directors, etcetera). As that expands the disclosure requirement to include staff, he explained Amendment KA.18 replaces all those references with "upper level employee" and that is defined for the purposes of the entire code in AS 24.60: As a person compensated at range 19 or higher who is required to file one of these disclosure forms. Number 1485 REPRESENTATIVE IVAN made a motion to move Amendment KA.18. CHAIR JAMES asked if there were any comments. REPRESENTATIVE ELTON asked someone to explain the value of advise from somebody who is lower than a range 19. He stated he doesn't understand the distinction. He said for example he looks at the people in his office and he doesn't determine whether or not he listens to them based on what their salary range is. Representative Elton said he thinks that's true of most legislators. CHAIR JAMES said that is a good question. MR. BROWN replied that disclosure requirement is an example of having to draw a line somewhere. He mentioned the Senate made that level of compensation last year, if it was higher than range 21 it would exempt all legislative staff. Number 1569 MR. BROWN indicated it's not so much a matter of their advice to them as a legislator, but their capacity to independently affect policy and therefore the public's need to know that their independently affecting policy. There's always going to be a certain arbitrariness to saying that range 19s and higher are affecting public policy more than the lower ranges. He said if it was the wisdom of this committee to increase that to 20 or to lower it to 15, it will have a fiscal impact and certainly on the employees of this branch. CHAIR JAMES mentioned this was another thing that bothers her. For example if you had a range 19 and range 17 or 16, you could change their ranges so they don't have to do the reporting. She also indicated there is no restriction of how long staff works, like term limits. Chair James concluded Amendment KA.18 is simple, and they are not dealing with whether or not this ought to be in the bill or not. On that reason, she said she does not have a problem with the amendment, however, she does have a problem with the area that is being amended. Number 1660 MR. BROWN said once we've standardized the language on what range level it is, it will be that much easier to do because it will be in one place in the bill as opposed to throughout the bill. He recommended KA.18 be adopted. CHAIR JAMES stated based on the fact that it is language simplification, but it doesn't fix the problems she has with the bill. REPRESENTATIVE BERKOWITZ said the whole purpose of SB 105 is to increase public confidence in the process. He asked do you agree. MR. BROWN replied to increase public process and the confidence and ensure the highest level of (indisc.) government in Alaska, he believes is the language in the cabinet findings. REPRESENTATIVE BERKOWITZ said those are fine lofty sentiments. He asked why is good government conditioned of being a range 19 or above. MR. BROWN responded it's for you to decide at what level you want disclosure to kick in. Number 1724 REPRESENTATIVE IVAN asked what is the current range that require disclosure for staff. MR. BROWN replied they include the director of the Legislative Affairs Agency, the legislative auditor, the legislative fiscal analyst, and the director of Leg. Legal [Legal and Research Services]. He mentioned the bill expands the number of legislative staffs who are disclosing this information. MS. BARNETT said to clarify this, under this type of comprehensive disclosure, all legislative employees must disclose under the close economic association, etcetera. MR. BROWN pointed out the only employees who don't have to disclose are Print Shop employees and some mail room employees. Everyone else has to file the item by item disclosures. REPRESENTATIVE IVAN said he was eager to make the process easier but he was beginning to doubt his own amendment. He considered withdrawing it. He asked if they were just starting another layer of disclosure. MR. BROWN replied it already puts the layer in there. This amendment does not add a layer of disclosure, it standardizes the terminology in the layer of disclosure that is already in the bill. Number 1824 REPRESENTATIVE BERKOWITZ stressed one of the concerns he has is that staffers deserve some protection for their privacy. If you already have to make disclosures about close economic association, and association with lobbyists, or such, how does this enhance any public awareness and how do you balance that public awareness against the personal privacy concerns of the staff. CHAIR JAMES said that wasn't a question for this amendment because all this amendment specifically does is make it simpler to say that. MR. BROWN said he didn't know if they thought it was appropriate that the executive director of the Legislative Affairs Agency has to share that information with the public, maybe that's a violation of her right to privacy under the Alaska Constitution. If that's the case, maybe make it only legislators who disclose, that's a policy call. CHAIR JAMES asked, "Do we have any information anywhere that says how many public looks at these things and who this public is." MR. BROWN replied he is not aware of statistics of that nature. He deferred that question to Ms. Barnett. CHAIR JAMES asked if there was any objection to Amendment KA.18, hearing none, the amendment passed. [[CSSB 105(FIN)AM WAS HELD IN COMMITTEE]
| Document Name | Date/Time | Subjects |
|---|