Legislature(1997 - 1998)
04/04/1998 10:08 AM House STA
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* 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 0012 CHAIR JAMES announced the committee will be taking up SB 105. She asked if the proposed committee substitute for SB 105, 0-LS0074\L, Cramer, 4/2/98, is available in the Anchorage Legislative Information Office. Number 0016 BEN BROWN, Legislative Administrative Assistant to Senator Tim Kelly, Alaska State Legislature, replied he faxed the 60 pages to Suzie Barnett. He indicated he was sure Ms. Barnett shared it with Patty Bielawski, Special Assistant, Office of the Commissioner, Department of Natural Resources. CHAIR JAMES asked if anyone, other than Anchorage, was on line. Number 0018 SUZIE BARNETT, Professional Assistant Legislative Ethics Committee, informed Chair James they were in the process of duplicating it. CHAIR JAMES asked Ms. Barnett if Representative Berkowitz arrives would she please let her know. CHAIR JAMES noted they have been working on SB 105 for six or seven weeks in the subcommittee. She reported that issues came up that they weren't either willing to, or couldn't agree on, so those are brought forward as amendments. She asked Mr. Brown if he had a list of the changes that were made. MR. BROWN responded he has a sectional analysis that gets about halfway through the bill, Legal Services is overworked and can't do sectionals for bills of this size themselves, he got as far as he could. He said, "But I realized (indisc. ) after a certain point that if I tried to do a sectional on the Personnel Board stuff, which we did not change in the committee substitute, because of the amendment that changes it substantially. It would have been kind of a bit of a misdirected effort to analyze all these changes." Number 0034 CHAIR JAMES stated you're right. She believes, when they get through the Personnel Board, the pages will be much fewer. She explained, in the Executive Ethics area, there were changes made in the Senate to this bill which would have bypassed the ethics manager's - (indisc.) call him that - in the Department of Law and put all the ethics concerns through the Personnel Board. She indicated the subcommittee addressed that issue and found it to be not physically feasible for the Personnel Board to do that job without more staff. CHAIR JAMES continued, "We didn't have any real evidence that what we had going currently wasn't working and we have made it, however, in - I believe that will be in the amendments that makes everything go to the Personnel Board and makes it so that they've got their nose in everything. But they won't be in the decision-making process - in all of them in some cases, but not all of them. Those will be showing up as amendments." Number 0046 MR. BROWN pointed out it's actually one amendment, it's Amendment L.1. [0-LS0074\L.1] which has seven pages, but most of what it does is delete changes. He explained the references to the Attorney General that have been changed in the bill to the Personnel Board, this amendment goes through and changes all but five or six of those references back to the Attorney General. CHAIR JAMES asked Mr. Brown what would be the best way to go through the proposed committee substitute. MR. BROWN replied by adopting the proposed committee substitute and walk through it briskly and then consider the amendments. He indicated some of it was going to be familiar and that the Legislative Ethics isn't that controversial. Mr. Brown reported the changes that were made, a lot of them were in terminology. Number 0059 REPRESENTATIVE IVAN IVAN made a motion to move proposed CSHB 105, Version L, 4/2/98, as a working document. Number 0061 REPRESENTATIVE JOE RYAN objected for purposes of discussion. He asked to have the proposed committee substitute explained. He said if it seems to solve the problem then he'll withdraw his objection. MR. BROWN explained the bill started out at the request of the Ethics Committee to make several changes to the Legislative Ethics Code. Upon passage through the Senate, it was expanded to include major changes to the Executive Branch Ethics Code, generally to look like our code by adding a lot of the language and requirements. Campaign finance reform provisions were added, some of which have been superseded by the passage of other legislation. MR. BROWN stated the House State Affairs Committee reviewed it, and (indisc.) what parts can be taken out. There is a host of housekeeping changes to the Legislative Ethics Code which may not go as far as those who think it's a bad law to begin with but would like to see them go but at the same time are necessary to clean up the statute. Examples would include posting a (indisc.) campaign sign in your office is technically illegal. The parking permit from the City and Borough of Juneau is arguably an illegal benefit or gift. Number 0076 MR. BROWN indicated the Subcommittee for SB 105 is to consider some of the things outside the legislative framework that was brought forward by various legislators and the Personnel Board to make sure the effort to (indisc.) up the executive branch Act - didn't do so in a way that actually weakened their statute. REPRESENTATIVE RYAN asked, in your amendments, have you addressed SB 275 which passed the House on April 1 (relating to fund raising by the governor, lieutenant governor and candidates). MR. BROWN replied yes, Amendment L.5 makes sure the provisions of law, as ensconced in SB 275 - which again differentiates between the state legislature and governor and lieutenant governor -- the approach taken by this bill at one point was to create a new definition of "state office" and ban activity for candidates for state office during the session, as you know, that met with a lot of opposition and the upshot was that now if you're running for governor you can raise money during the session even if you're a legislator, if you're running for the legislature you can't. He indicated this amendment needs to be adopted to make the Ethics Act conform with the changes the legislature has already made in the campaign finance statute (SB 275). Number 0096 REPRESENTATIVE RYAN withdrew his objection. CHAIR JAMES noted CSSB 105, Version L, 4/2/98, was before the committee. MR. BROWN referred to Section 1. He indicated they might not have seen it before, it came at the recommendation of the drafter (Terry Cramer), she noticed there was no reference to disclosing information about one's campaign treasurer if you're running for judicial retention. (c) Each candidate for state office or for retention as a justice or judge shall file the name and address of the campaign treasurer with the commission, or submit, in writing, the name and address of the campaign treasurer to the director of filing with the commission, no later than 15 days after the date of filing the declaration of candidacy or the nominating petition... Number 0102 REPRESENTATIVE KIM ELTON asked what about a group, or organization that may form against a candidate for retention, would they also be required to... MR. BROWN interjected as a political group they would. The problem is, and this came up before, "What if I don't file a letter and I raise money," it would be possible for a group - that was opposed to a judge being retained - to probably try to do it outside the scope of the law. But there's only so much you can do by writing the law. He indicated there's only been a few contested judicial retention elections over the years. REPRESENTATIVE RYAN remarked it's a rubber-stamp process. He indicated he had no idea that these people had treasurers and couldn't care less and doubted seriously if the majority of the public is concerned. He said the campaign finance law just causes us to spend a lot of money for no useful purpose other than the newspapers and opponents trying to dig-up a small infraction so they could make a big deal out of it during reelection. He concluded, "We're employing people who could be doing something useful and productive with their lives - to go through all this foolishness - then it's a Star Chamber sort of thing, and I think the whole thing should be dumped personally, if it were up to me I'd vote that way in heartbeat and I'll say that in front of television and radio." Number 0119 CHAIR JAMES said she could agree with most everything he said, however, they must address the bill. She shared that she consistently votes no on the retention of judges and has run into a lot of other people who do the same - there are more "no's" now then there ever used to be. Judges do have campaigns to hold their slots because she has seen them do that. She said she doesn't know if they pay for it out of their own pockets. It seems strange for a judge to be running a campaign or for somebody to be running a campaign against him. There certainly is an opportunity for it to be there and she thinks it should be reported. Number 0134 BROOKE MILES, Administrator, Regulation of Lobbying, Public Offices Commission, came before the committee. She said judges are prohibited by their ethical code from engaging in campaigning. Occasionally, such as cited with the Rabinowitz case, groups form to oppose retention and then, usually when that happens, another group forms to support retention. Those groups are required to file registration concerning their treasurer right away, before making any expenditures. CHAIR JAMES reiterated, "Based on what you've just said, then it isn't a candidate for state office or for retention of a justice, a judge would only be a group then, never be the judge of themselves." MS. MILES said that's correct. CHAIR JAMES stated this language might not work. MR. BROWN said he believes what the drafter wanted to do, was to make it a responsibility of the beneficiary of that group's activity. Number 0147 REPRESENTATIVE ELTON said what you're doing is making the beneficiary actually become part of the campaign by forcing the beneficiary to work with the group. MR. BROWN replied he thinks it would be disingenuous to believe that the beneficiary would not be working the group at all. CHAIR JAMES said they need to change the procedure, to go through the bill, if you have concerns write them down and address them later. Number 0161 REPRESENTATIVE ETHAN BERKOWITZ came on teleconference. He stated he's been listening for awhile and indicated it's about as entertaining as the subcommittee. Number 0167 MR. BROWN referred to Sections 2 through 5. He said, "As the subcommittee was working on this bill, the issue of whether or not the governor should raise money during session was being bandied about in the form of another piece of legislation which ultimately did pass in a form that permits the governor and legislators seeking the governor's 'house' to raise money during session. And that allows the 90 day exemption on the ban for legislative candidates if there's a special election. So Sections 2 through 5 of the committee substitute really are not germane anymore. ... Amendment L.5 is going to really go through and delete quite a bit of this, if it's the will of this body to conform with the changes made when SB 275 passed." MR. BROWN continued. The CS's approach is to ban fund-raising during session for legislators and for gubernatorial candidates but to allow fund-raising in an almost equivalent time period in the preceding year so that you could, as long as you declared your candidacy or (indisc.) papers to raise money, raise money from the first of June in the preceding year. But then you have to stop at the beginning of session. The benefit there being that you have disclosed everything you raised within a month by the 15 of February so people knew what (indisc.) you raised - which they're not going to know when your raising money during session, there won't be that public information. Number 0186 UNIDENTIFIED SPEAKER asked Mr. Brown if he described the amendment or did he describe the committee substitute. MR. BROWN replied he described the CS. The amendment deletes the CS's provisions that are in conflict with SB 275. Amendment 5 will conform to those provisions. Number 0189 REPRESENTATIVE ELTON indicated one of the changes does reinstitute the possibility of raising funds in the previous year to the election. MR. BROWN responded yes, but does ban it during session. REPRESENTATIVE ELTON noted it's banned right now. MR. BROWN replied (indisc. - speaking too fast) candidates (indisc.) SB 275 goes into effect. Number 0192 REPRESENTATIVE ELTON asked are we talking about statewide and state offices. MR. BROWN replied exactly, that is a difference, that would be right. This would allow legislators to raise money in that prior period as well. 0194 CHAIR JAMES stated which is a change from existing law, which now they're precluded in the off-year. MR. BROWN replied right. An option between the two would be to only allow gubernatorial candidates to raise money in the preceding year, not legislative candidates. CHAIR JAMES explained if we restricted the governor from fund- raising during a legislative session, and any legislator that was running for governor during a legislative session, it's a small window to raise money for a statewide election - which takes a lot more money than a legislative election does. It seems like that was clamping things down too tight. Since the decision was made with SB 275 that the governor is not restricted from raising funds during the legislative session - he can only raise funds in the year of the election, and anyone who's running for governor, who is in the legislature can also then raise money. Then we probably don't need to go back to the period in the off-election year to allow fund-raising. She indicated it's still a small window for the legislature - that's a decision we'll have to make. Number 0212 REPRESENTATIVE RYAN remarked the period is too weak. For example, he experienced that this year - he sent back as much as he was able to keep because of the late-coming. So it's counterproductive if you're trying to raise money. Representative Ryan said, "This is the first I've heard of this period from July, or something, on the previous year. It sounds like a little more reasonable way for people to do it." MR. BROWN referred to Section 6. He said they changed the name of the "legislative expense" account to "public office expense term" account (under the campaign finance law where you have to get rid of your unused assets within 90 days within the election). So now it can't be confused with your LAA (Legislative Affairs Agency) account. That is important because only the disclosure of what happens to the funds in this account is to Alaska Public Offices Commission (APOC)... MR. BROWN referred to Section 7. He said it just changes the name on the statute so it's referred to correctly (public office expense term account). MR. BROWN said Section 8 restricts what you can do with money in a public office expense term reserve account that you haven't put into your public office expense term account at the end of your term in office. (As amended by the Senate, you could have rolled those funds over into the next campaign, which would be a loophole). We've closed that loophole, if you put money into a public office expense term reserve and don't put it into your public office expense term account you'd have to give it to charity or repay the contributor at the end of your term. Number 0229 CHAIR JAMES asked him to repeat that again. MR. BROWN reiterated, "You've got money (indisc.) and you run for office, you use your assets up -- you can do a whole host of things under 116 [AS 15.13.116], there's ten of them. One of them is creating an account that your going to use for legislative purposes while your in office (or municipal is another option). To prevent negative tax consequences, you can create a public office expense term reserve and then transfer them in there. You have to transfer five thousand dollars for each year of your term (indisc.) on an annual basis. And the problem was, with the creation of the reserve account, and if I created the reserve -- if I put twenty thousand dollars into it, never transferred any of it into my actual public office expense term account over the course of my term of office, the way that the bill is currently written, I could take all twenty thousand dollars and dump it into my next campaign at the end of four years. This is not the intent of the voters in passing campaign finance reform. Section 8 of the bill closes that loophole, and any money that was sitting in my public office expense term reserve at the end of my term can only be used for charitable donations or to repay contributors." Number 0237 REPRESENTATIVE RYAN asked if he missed something in the last couple years, when did the voters pass campaign finance reform. CHAIR JAMES replied the voters didn't pass it, but they demanded that we do it. REPRESENTATIVE RYAN stated to put it on the ballot. MR. BROWN went on to Section 9. He noted that it will probably be deleted as well (by Amendment L.5). He indicated we don't have a definition of "state office" in the campaign finance statute as we are differentiating between governor and legislator. REPRESENTATIVE BERKOWITZ asked to be faxed Amendment L.5. CHAIR JAMES indicated the comment on Section 9 is self-explanatory, the amendment is going to get rid of it. Number 0248 MR. BROWN continued on to Section 10. He said this is the one that raised a lot eyebrows when it was first before the full committee. It's a conforming amendment. He referred to the memorandum from Terry Cramer [February 13, 1998]. He said she explains why we need to make a conforming amendment to the employment security statute to prevent anyone, who is currently ineligible for unemployment benefits, to remain eligible. By changing the definition of "public official" as defined in AS 39.50.200(a), which is the public official financial disclosure statute, we potentially triggered unwarranted unemployment insurance benefits for some of the upper level executive branch employees. REPRESENTATIVE ELTON stated, to protect us, that keeps us status quo. MR. BROWN replied exactly. Number 0257 MR. BROWN moved onto Section 11. He reported it adds a reference to the Ethics Committee to the provisions of AS 24.25 which governs the issuance of subpoenas - under one part of the Ethics Code the Ethics Committee has the right to issue subpoenas but under another part all subpoenas issued by committees have to be turned into by the presiding officer. Mr. Brown said, "The committee thinks that was an oversight when the statute was passed and they would like to see themselves exempted from the concurrence of the president or the speaker. The problem with concurrence being if the president or the speaker or one of her staff is the subject to the complaint, it would be a conflict of interest..." REPRESENTATIVE RYAN said this blows me away, these fellows who are appointed by the court are going to have subpoena power. He personally objected to this. REPRESENTATIVE ELTON stated this just clarifies the powers that they already have. Number 0271 MR. BROWN said Section 12 deals with the disclosure of legislative employee spousal or spousal equivalent relationship. This adds to the required information that must be disclosed by a lobbyist to APOC, whether they are married to a legislator or legislative employee or public official. At Terry Cramer's recommendation, she also cited the definition of spousal equivalent from the public official disclosure statute at the top of page 11 of the committee substitute: [Beginning on page 10, line 30]. (7) the identification of a legislator, legislative employee, or public official to whom the lobbyist is married or who is the spousal equivalent of the lobbyist; in this paragraph, "spousal equivalent" has the meaning given in AS 39.50.030(g). MR. BROWN said if the ban on spousal lobbying goes back in, then the word "legislator" on the bottom of page 10 will need to be deleted. REPRESENTATIVE BERKOWITZ asked is AS 39.50.030(g) new language, because 39.50.030 is not a definitional section of the statutes. MR. BROWN replied it's not a new definition to the committee substitute, but it's a new definition for the bill because the bill added spousal equivalency to what has to be disclosed under AS 39.50. CHAIR JAMES said what Representative Berkowitz is asking is that it says it has the meaning given under AS 39.50.030(g), [page 11, line 2]. MR. BROWN replied not just in the committee substitute that has been there since last year he believes. By adding a new subsection to AS 39.50.030 subsections (d), (e), (f) and (g) actually, all of those put the lobbying disclosure requirement into the public official disclosure Act. Number 0289 REPRESENTATIVE BERKOWITZ said, "I'm not going to spread any gasoline on this inferno, but that whole issue - what constitutes a marriage is somewhat an issue these days." REPRESENTATIVE ELTON stressed it is, essentially with using that language, if the constitutional amendment passes there will never be a prohibition that applies to a same-sex partner because you no longer have the meaning that's given - if the only legal definition of a marriage is between members of different sexes, this prohibition would not apply to a same-sex partner. CHAIR JAMES said no it would not apply to same-sex, it isn't intended to in here. MR. BROWN remarked if anything, that would... CHAIR JAMES interjected it's not intended in here to be applying to same-sex relationships. It's intended to have a man and a woman relationship who are not married, that's what that means. She indicated whether we change the constitution or not, and if the constitution amendment passes, it will not change this. Number 0299 REPRESENTATIVE ELTON said he's not sure he agrees with that. The courts have issued a definition that the legislature is now trying to change. CHAIR JAMES said she understands that but her point is, "If it is the final decision - is that same-sex people can be married here, then it still applied here. If it's changed that no, they can't it still applies, it just applies to different people, the same as marriage does." MR. BROWN said a lobbyist engaged in a same-sex relationship wouldn't have to disclose, where a lobbyist engaged in a different sexual relationship would. CHAIR JAMES stated you're right. She indicated she wanted to move on. Number 0305 MR. BROWN brought up Section 13. He said this modifies the definition of "public official" to make sure that we're not looping in any new disclosure requirements for judicial officers or appointed municipal officers and also upper-level employees who are required to disclose. This will require substantial financial disclosure from legislative staff and this is a definitional change to conform with that. [Section 13 AS 24.45.171 is amended to read]: (12) "public official" or "public officer" means (A) a public official as defined in AS 39.50.200(a) but does not include a judicial officer or an elected or appointed municipal officer: (B) [,] a member of the legislature; [,] or (C) and upper-level employee REPRESENTATIVE RYAN said it does not include an "elected or appointed municipal officer." He stressed an elected municipal officer is a "public official." CHAIR JAMES responded in this particular case, they're not intending it to be a municipal officer. She pointed out they are only talking about state-elected officials. (This is at the state- level only). Number 0318 REPRESENTATIVE ELTON asked if there was a definition for an "upper- level employee." MR. BROWN REPLIED yes "upper-level employee" is defined in the disclosure statute because that's where we're forcing all the range 19s and up is basically what it is right now. The bill has not changed remarkably in terms of the legislative staff disclosure. REPRESENTATIVE ELTON asked if it is the equivalent of a range 19, or is it range 19. MR. BROWN replied "I honestly think the CS actually may have an inconsistency in terms of the dollar amount, it's got both." He indicated he knew it was going to get resistance in the Finance Committee. It's not really resolved at this point. Number 0328 MR. BROWN addressed Section 14. He said this amends it several ways, the restrictions on legislative and legislative employee behavior under the Ethics Code. Subsection (2), page 11, use of public funds, this is language that is attempting to prevent the problem of state resources being used for partisan purposes. (2) use of public funds, facilities, equipment, services, or another government asset or resource for a nonlegislative purpose, for involvement in or support of or opposition to partisan political activity, or for the private benefit of either the legislator, legislative employee, or another person; this paragraph does not prohibit REPRESENTATIVE RYAN asked what the circumstance was that was so outrageous that we have to codify it. CHAIR JAMES replied Jerry Sanders sent out a thank-you to the people who attended the straw-poll that they had for the president in 1996. He used his staff and computer and paid the postage out of his legislative account as opposed to paying it himself. MR. BROWN referred to subsection (2) (A), page 11, line 23: limited use of state property and resources for personal purposes if the use does not interfere with the performance of public duties and either the cost or value related to the use is nominal or the legislator or legislative employee reimburses the state for the cost of the use; MR. BROWN pointed out the use still cannot interfere with the performance of public duties, that's one standard. This still doesn't allow for reimbursement for activity that does interfere with the performance of public duties. Number 0352 REPRESENTATIVE RYAN asked has the court of law ruled on the six thousand dollars we get for office expense is part of some kind of public money, or did the Ethics Committee make this determination. MR. BROWN said he thinks Legislative Council did in response to ambiguity about the status of those funds. Number 0358 CHAIR JAMES explained you can take it as an accountable plan or a nonaccountable plan in which case you pay taxes on it. The difference between an accountable plan and nonaccountable plan are simply to comply to the Internal Revenue Service (IRS) code. The IRS code says that if you have an account with your employer that pays certain things - or reimburses you for certain expenses, that are valid deductible expenses for your occupation then you don't have to report them to IRS because your employer is doing the sieving for you. And they're being sure what you pay is a valid expense. If you don't want them to do that - the other problem about it is if you do it that way then it's public and anybody can see how you spent that money. If you don't want them to see how you spent the money, you want to take the money - they just take the taxes off the top, then you can spend it for anything you want. But you have to report the money that you got to IRS as income and deduct all those things that are valid expenses. CHAIR JAMES concluded they may not all be valid, you may want to spend it for other things. That's the only difference between the two, otherwise, it is your money. If you don't spend it all, they'll give it to you, take the taxes out and give you a refund. REPRESENTATIVE RYAN said, "I was trying to figure out what various groups have made determinations of what and how money that I earn in this occupation is to be spent, because personally, it's none of your bloody business what I do with money I earn." CHAIR JAMES reiterated his options. MR. BROWN remarked if no one took the accountable allowance plan, we would probably save money in paper and record keeping - that would put the burden on you the legislature. All that paper going back and forth, all the bills being paid by Legislative Affairs Agency. It must serve some (indisc.) purpose because we're paying them to do it. He believes it would probably be easier if they didn't do it that way. MR. BROWN referred to subsection (C), page 11. He said it's ok to use a telephone nominally, you're not going to get in trouble for using the fax the same way. (C) telephone or facsimile use that does not carry a special charge; MR. BROWN said "We did not add the word e-Mail because e-Mail use never carries a special charge..." CHAIR JAMES stated, "But there is the point we did discuss which is probably pretty important to put on the record now, is that whether or not E-mail is accessible to the public in your E-mail, and I think we kind of decided that it was, so knowing that, I would suggest that people don't do any personal E-mail." Number 0388 REPRESENTATIVE RYAN said he has a personal computer, which he owns - he paid for out of his pocket, he also has a private "IPO" account which he pays for. The only thing he uses is he shares his fax line to access his account. ... He said, "My personal stuff is my personal stuff." CHAIR JAMES remarked she has the same situation, but is absolutely sure that she is not putting anything she doesn't want anybody to see on her computer. [Subsection (D) remarks were not recorded due to tape ending]: the legislative council, notwithstanding AS 24.05.190, from designating a public facility for use by legislators and legislative employees for health or fitness purposes; when the council designates a facility to be used by legislators and legislative employees for health or fitness purposes, it shall adopt guidelines governing access to and use of the facility; the guidelines may establish times in which use of the facility is limited to specific groups; or MS. BARNETT noted they only received Amendment 1 and Amendment 2. TAPE 98-46, SIDE B Number 0001 MR. BROWN moved onto subsection (E) [page 12]. He said this is a provision that is mirrored on (E) on page 13. This is a special level of protection for legislators in their private offices - it's not for staff. There may be times when you use your office in the capital, as long as that doesn't interfere with your public duties and there's no cost, other than minimal wear and tear - you can have the lights on and sit at the desk. You would probably reimburse if there is a cost for paper or some other small charge, you're pretty much allowed to do what you want to do in there. He indicated this was in response to a concern by a member who thought - the way the code is currently written, if you were in your office every night, after hours, not talking to your staff, doing stuff, someone can say you shouldn't be doing that. Subsection (E) reads: (E) a legislator from using the legislator's private office in the capital city during a legislative session, and for the five days immediately before and the five days immediately after a legislative session, for nongovernmental purposes if the use does not interfere with the performance of public duties and if there is no cost to the state for the use of the space and equipment, other than utility costs and minimal wear and tear, or the legislator promptly reimburses the state for the cost; an office is considered a legislator's private office under this subparagraph if it is the primary space in the capital city reserved for use by the legislator, whether or not it is shared with others; Number 0013 CHAIR JAMES remarked you can't do it in offices in your district, just when you're in the capital. MR. BROWN replied the presumption being that, if you're a professional, you probably have a plant set up for that where you're from, you can't bring that plant with you to Juneau. Number 0017 CHAIR JAMES said that's not absolutely true. In Fairbanks for example - and I don't know whom all you have in Anchorage who doesn't live in Anchorage, at the Anchorage Legislative Information Office, when Senator Lincoln and Representative Nicholia come to Fairbanks, if they have any personal things to do, they're going to have to do it from their office or out on the street... TAPE 98-47, SIDE A Number 0001 CHAIR JAMES continued, she said everybody thinks about things in their own terms and not about what other people's terms are. She wanted to be sure that they haven't aced them out in any way. MR. BROWN indicated he originally drafted it to apply to interim offices, but the Ethics Committee staff wasn't really comfortable with that. CHAIR JAMES stressed she didn't think anybody would do that in an interim office unless they were someone who didn't live in the town where their interim office was. As long as they reimburse for phone calls, or if they used the Xerox copier, or whatever and kept track of that personal use, it doesn't seem to be a problem. Number 0008 CHAIR JAMES said she could see that they might even want to meet with somebody in their office that isn't legislative related. There are some people who have an office in Anchorage, and people come from various places out in the rural areas. She suggested they think about that before they are finished to see if they covered those people sufficiently. Number 0014 REPRESENTATIVE BERKOWITZ indicated he had a question but deferred to Representative Ryan because he might get to his point. Number 0016 REPRESENTATIVE RYAN said he is getting more and more offended as he goes through this document. Somebody on the Ethics Committee presupposes a citizen legislator - has twenty-four thousand dollars a year they pay us - at some outrageous amount of money that we can just live in a lap of luxury, and that we're really up to no good and we're trying to connive every possible way we can to do something that's going to harm somebody and we're going to write this stuff so we caulk every crack in the floor there possibly is so that God knows what a person's suppose to do by the time they get through trying to dance to this tune. He indicated he hasn't seen in his life a document that is more ridiculous than this thing. CHAIR JAMES said, "You and Representative Berkowitz probably have a lot in common here." She asked Representative Berkowitz if he had a question. REPRESENTATIVE BERKOWITZ replied not anymore. [This response caused an uproar of laughter]. Number 0024 REPRESENTATIVE ELTON asked if this particular section, or part of this section, creates attention with the earlier language in this section that bans the use of things in the office for partisan benefit. MR. BROWN replied the earlier section doesn't, he asked Representative Elton if he was looking at subsection (5) (E), the bottom of page 12 and the top of page 13. He said that's where we say, "use or authorize the use of state funds for the purpose of political fund raising or campaigning" this paragraph does not prohibit a legislator from using "a legislator's private office in the capital city." He indicated that same exemption is there - perhaps it creates attention, but he didn't think it creates an insurmountable one. Mr. Brown stated this paragraph doesn't prohibit, and that's where the (a), (b), (c), (d) all comes down from, so this is an exemption to that ban that is put out in (2) AS 24.60.(indisc.) we say you can't, then we go down and say but, but, but, but. Number 0034 REPRESENTATIVE ELTON emphasized the ban controls, but doesn't. MR. BROWN replied but there are limits to its control, the idea being that it is suppose to be (indisc.) as possible. To just allow for what people are reasonably going to do, not anything they shouldn't do. CHAIR JAMES indicated she was trying to figure out where the instructions are that have this litany of things, telling us that we can or can't do. She referred to page 9, line 13 (D) [work draft 0-LS0074\L page 13, line 9 (D)]. She read the following: (D) storing or maintaining, consistent with (b) of this section, election campaign records in a legislator's office; or CHAIR JAMES asked is that saying they can or can't do that. MR. BROWN replied does not prohibit. He reiterated it does not prohibit storing or maintaining, consistent with subsection (b. Number 0051 MS. BARNETT read subsection (b) to the committee: (b) A legislative employee may not on government time assist in political party or candidate activities campaigning or fund-raising. A legislator may not require an employee to perform an act in violation of this subsection. MR. BROWN explained even though you can keep your campaign records there, you can't have your staff using them to raise money. Number 0057 MS. BARNETT stated the intent of this subsection, or that reference, is just to allow you to have all your APOC records that actually - you need to sometimes bring up-to-date or refile things during session. This is a reference to your APOC filing. Number 0063 MR. BROWN addressed Section 15. He said this deals with using state-funded publications to (indisc.) if you will. He pointed out it doesn't apply to the office account - this prohibition on using state funds that (indisc.) a mailing 90 days before an election, which one of the candidates... Number 0068 REPRESENTATIVE BERKOWITZ said before they get too far down the road, he proposed a suggestion that might alleviate the concern for a lot of the Bush legislators in the prior section, instead of "capital city," how about "in a place other than the legislator's primary residence." CHAIR JAMES indicated she would write that down and when they get back to amendments they will address that. MR. BROWN said Section 15 is meant to prevent the use of leadership or committee funds for political mass mailings 90 days before an election. It also specifies that it's not just state elections that you shouldn't be doing this for. It says running for telephone cooperative or anything. He stressed it doesn't apply to your office account. (2) a mass mailing is considered to be political if it is from or about a legislator, legislative employee, or another person who is a candidate for election or reelection to the legislature or another federal, state, or municipal office or to the board of an electric or telephone cooperative. Number 0079 REPRESENTATIVE RYAN asked if we're talking about leadership funds are we talking about money that was privately raised. MR. BROWN replied no, we're talking about funds available to the Rules Committee Chairman, the Speaker, or the President or any presiding officer. CHAIR JAMES jokingly said the State Affairs Chairman doesn't have any. Number 0085 MR. BROWN said Section 16 specifies that the ban on putting political material about public buildings includes fund-raising notices. But, loops in the exemption that, if it's a sign for election that's been concluded (indisc.) for nostalgic purposes it's all right. REPRESENTATIVE RYAN asked, "Are you saying - during the last municipal election in Fairbanks, there was a ruling from ... that someone puts up a sign, that's a contribution." MR. BROWN reported this has nothing to do with that, the commission overturned the staff opinion on that. He reiterated this has to do with putting up signs in state buildings and it's to prevent legislators and legislative employees from having a notice that they're going to have a fund-raiser on their desk in their legislative office. But it exempts you, if you have a sign from your last race that you had mounted and framed, that's art. Number 0099 MR. BROWN explained Section 17. He said disclosure is required by the Ethics Code - currently there's no deadline in this subsection (indisc.) to be made. There's also a dual requirement, for example you might be appointed by the presiding officer to a panel that requires board membership disclosure, even though the appointment is published in the Journal, you still would have to report it to the committee and it would be published in the Journal again. This prevents redundant disclosure. CHAIR JAMES asked what journal are we talking about. MR. BROWN replied the House and Senate Legislative Journal. Number 0107 MR. BROWN stated Section 18 deals with the conflict of interest it changes what is in current statute, a prohibition on taking legislative, administrative or (indisc.) political action, to disclosing it. Currently it's a practice to disclose a conflict in committee or on the floor and ask that you don't have to vote and be told that you do most often. But there isn't really a provision to disclose a conflict when you have a bill drafted, or when you get a legal opinion on something, or when you even perhaps call (indisc.) on regulations, or whatever. This basically deletes an unenforceable prohibition and replaces it with an enforceable and livable disclosure requirement. You still would have to disclose orally in committee or on the floor, but if it's something you're doing that doesn't allow for oral disclosure, you have seven days to write a note to the committee saying, "I drafted a bill which may..." CHAIR JAMES said she can't believe this. REPRESENTATIVE RYAN said give me a break. Number 0118 REPRESENTATIVE BERKOWITZ informed the State Affairs Committee members that Ms. Barnett left the Anchorage LIO. MR. BROWN reiterated currently it's technically prohibited to that you take actions that you have an interest in without disclosing them. But there's no mechanism for disclosure for actions that taken in the informal context of telephoning and requesting a bill to be drafted or calling and saying, "I think these regulations are horrible." The committee's solution to that, which really hasn't met with much conflict or much resistance up to this point, is that you just have to disclose it orally on the floor or in committee, but if you do something that invokes the conflict of interest in a place you can't get up and say you're doing it, you just jot a note to the Ethics Committee saying, "By the way, I had a bill drafted that could substantially benefit me financially, I assume you would put in the disclosure, that's not why I did it." It's the committee's idea and I hope that Ms. Barnett will come back and speak to us. CHAIR JAMES asked where did we get the technically prohibited. MR. BROWN replied that was the committee's interpretation that led to that. He said, "This is something that was in the bill both times as it was introduced at the request of the Ethics Committee." REPRESENTATIVE RYAN asked what section and chapter he was referring to. MR. BROWN responded Section 18, it amends AS 24.60.030(g). CHAIR JAMES directed the committee to circle that section and indicated they would come back to it. Number 0133 MR. BROWN said Section 19 relates to government time, this would add a new section which is in response to some questions in ethics cases that have been heard over the last few years that this has a nebulous standard of when people [legislative staff] are working or not working and it makes it hard to decide whether or not they were working when they did what they did. This (indisc.) the committee will consider a work schedule as set by the immediate supervisor -- that has the effect of encouraging legislators or supervisory legislative aids to set work schedules for others in the office. He concluded, "When you draw lines, that just makes it easier to know whether you're inside or out them. I think it's uncommon, I don't think most offices have a weekly calendar where they've been -- people popping in and out." (h) In this section, when determining whether an employee is considered to be performing a task on government time, the committee shall consider the employee's work schedule as set by the employee's immediate supervisor. An employee who engages in political campaign activities other than incidental campaign activities as described in this subsection during the employee's work day shall take leave for the period of campaigning. Political campaign activities while on government time are permissible if the activities are part of the normal legislative duties of the employee, including answering telephone calls and handling incoming correspondence. Number 0144 REPRESENTATIVE RYAN said, "My staff can't do this, that and this period, because if I'm out on the campaign trail and I'm going to speak at a luncheon or a constituent group and I have a staff member come along to remind me of things and to carry things which are part of their duty, and then someone files an ethics complaint against me for having my staff with me when I was campaigning I don't want to hear it. That is nothing but a net full of holes for these guys in the Ethics Committee to sit there all day long and take potshots at you and I don't want to hear it. My staff can do this or can't do that, anything other than that is helping me campaign and they're prohibited from doing it ... I don't use legislative staff to campaign and I can live with that. But this wide-open deal here where no matter what anybody does - and we're setting hours, holy mackerel, you're going to be getting complaints until you can't see straight, you're not going to be able to do anything. Ben [Brown], this is ridiculous, we're talking about -- we have to assume that human beings have some kind of moral ethical standards. This document assumes you have absolutely nothing that you leave a slime trail when you go along the ground. I'm not going to support this thing for five seconds and I'm not about to give any group of people appointed by the chief justice, whoever does this kind of power over my life. Who in the ... are these people that they are so morally - sitting so high that they cannot possibly be doing anything wrong and they can sit on all this kind of judgement on you. It's bologna." Number 0158 REPRESENTATIVE ELTON said he can understand the frustration of Representative Ryan. He pointed out this is a clarifying section, the Ethics Committee already has jurisdiction over - if a complaint is filed. He believes that the question is not whether or not this section is appropriate or not, it clarifies the role of the Ethics Committee. He indicated Representative Ryan's frustration maybe with the role of the Ethics Committee. CHAIR JAMES said she understands Representative Ryan's concern. Do we want to put that in that the supervisor - in other words, does this require her to have to have a work schedule for her employees? She said she is not going to be taking the time nor ask her staff (whose in charge of her staff) to have a work schedule particularly when they're in session. Staff work so many hours anyway that she can allow them to go out and do personal things during the middle of the day. Chair James doesn't believe requiring them to figure out what the work schedule is the answer. MR. BROWN replied it doesn't require you to, it encourages you to. Your work schedule could be, "My staff works eight hours a day." CHAIR JAMES stressed her staff works whenever she wants them to. Number 0187 MR. BROWN remarked the idea is that you're setting some standards as opposed to not discussing it at all. He believes that is what this intended to encourage, not 9:00 a.m. to 5:00 p.m., not only an hour for lunch - it has to be between noon and one, it can be whatever you want - you can put a comp. [compensation] time into effect... CHAIR JAMES said she has to write this down then. MR. BROWN replied if you don't write it down, they're saying when a complaint comes up, there's not going to be an (indisc.) standard for them measure what is alleged against. That's all this is trying to do, it's trying to point out that whenever you say, "Well, I do what the policy (indisc.) and my staff abides by it," it's going to be easier for you to defend yourself against a complaint. ... If you don't have rules and somebody is accusing you of breaking them, then you have to prove to us what the rules were that you weren't breaking. Number 0193 MR. BROWN pointed out the last two sentences refer to political activities. This isn't meant to affect organization of social functions this is really meant to get to making sure people aren't doing a little bit of campaigning. CHAIR JAMES said she doesn't think that they need to have documentation of work time. As long as they work their hours that they need to work she did see why it made any difference when they do it. Number 0199 MS. BARNETT said, "Just to clarify a little bit, there is no requirement for a written document, when people call and ask me for informal advice concerning campaign activities because they want to participate in campaigns and they are legislative employees, this is when I recommend to them that they put something in writing so that if they happen to go to a campaign activity between - not during a lunch hour necessarily, but at 3:00 in the afternoon, that's probably going to illicit a complaint from the other camp. They're going to see a legislative employee at a political event during the middle of a normal workday. If in fact you, at the office, had something in writing or an agreement then the committee can come to you, as the supervisor - as the boss and say, 'Was this approved time off and did they work their full time?' It doesn't necessarily have to be in writing but at least there would be, as Ben [Brown] said, you would pay attention for those activities. It could be in writing or it could be an agreement that every afternoon between 3:00 and 4:00 the employee gets to leave." She believes it's expanding language versus limiting language. CHAIR JAMES said as a good example is every Friday at noon is a Republican luncheon and one of her staff attends with her (but, that's the day she's not working). She asked, "What do I have to do, write them an excuse and say you're excused from 11:30 to 1:30 or 2:00 to the Republican lunch and you'll make up your time..." Chair James noted her staff works more than the required hours, she said she didn't know why she would have to do that. MS. BARNETT said Representative Berkowitz just said he doesn't allow his staff to go to Republican luncheons. In response she said, "This is actually the goal in any of this language in this section is to protect the legislators. When you have staff at campaign functions, and I can tell you after four years of being on this job, the other camp will call me, they will ask whether your staff was on leave or not. So what this is saying is not that you have to have something in writing but be prepared to be able to show or tell us, if a complaint is filed, that they were on leave. What you just said to me Representative James, you would be able to obviously write a note saying, 'Yes, my staff takes a long lunch, but they go to community council meetings every Thursday night and so this is how it's worked out.' It would just be an agreement that you have. So, anything you told me, I didn't have a problem with." Number 0233 REPRESENTATIVE RYAN noted the Employee Handbook tells employees that they are on call seven days a week, twenty-four hours a day and they serve at the pleasure of the legislature who hired them to assist that legislator in the job that he or she does. REPRESENTATIVE RYAN said during the off - noncampaign season, which in this respect I can say is really that's not an appropriate term because if you're a legislator you're probably campaigning every day of the year for two years. ... He asked, "How do I know if I am out during some time when there is a campaign being run - and I'm a declared candidate and I need my staff to be with me to assist me in certain things, I'm open for a shot anytime that I've got my staff helping me campaign. If my staff is, during government time, at a fund-raiser in the middle of the afternoon, yes, that's obvious. But there are too many subtleties, there are too many other times where you're going places, you're talking with constituents, and you're doing the sort of things you do as a legislator that you require your staff to be with you. And it's going to be - the other side's going to take the shot anyway. That and one other thing, the basic premise of an English common law in America jurisprudence is you are innocent until such time you are proven guilty when you're accused of some kind of criminal activity. And I don't assume that this is a civil case, that the ethics has, I assume that this has some kind of criminal nature so why do I have to come before this body and prove (indisc.). They're making the choice let them prove that I did it." Number 0250 CHAIR JAMES asked Ms. Barnett what the next step is after receiving a list of complaints. MS. BARNETT replied if a complaint is filed with the Ethics Committee their first step is just to make sure they have jurisdiction over the allegations. If they have jurisdiction and the complaint is properly filed and properly notarized, then their next step is to adopt a resolution defining the scope of investigation and at that point then they would initiate an investigation and Ms. Barnett would come to you, you would have already seen the complaint, and talk to you and your staff and put together an investigative report and come back before the committee. Number 0259 CHAIR JAMES asked in your investigative report, if there's no written documentation to prove that it was "innocent," would you assume it was "guilty." MS. BARNETT replied no, no there would not be that assumption. She said, "I can tell you one thing is that I think that the committee - you can imagine, again this is your committee, but that they do need to have - try and have some lines and again this is protective. ... This is more of a recommendation that when somebody reads through this law they see this and they think if I've got my staff out campaigning, I really should document their time - they should document their time. That's probably best I can say about this, but it's up to you folks." Number 0266 MR. BROWN said the bottom line in writing is turn in leave slips. CHAIR JAMES asked are you talking about a leave slip to take time off without pay. MR. BROWN responded no, paid leave or whatever, you can do leave without pay or paid leave. Number 0271 REPRESENTATIVE BERKOWITZ said he thinks they're creating a "tempest in a teapot." If someone complained about a staffer doing unauthorized work during a lunch hour or something - Ms. Barnett would call up and you'd say, "Well, yes but Patrick was working all weekend and he just took an hour to do something here and there." That pretty much would be the end of the story. MS. BARNETT pointed out there are two levels, one on an "informal basis" that scenario could occur. If in fact someone filed a "formal complaint" we would formally go through that same process and the end of the story would be - that statement from the representative would go forward to the committee and the committee would make a judgement at that time. She deferred the question to him since he serves on the committee. Number 0279 REPRESENTATIVE ELTON responded he probably can't answer it any better than Ms. Barnett who has been doing this for four years now. He said he thinks one of the things that they're getting trapped in here is they're looking at this as what are the prohibitions. He believes one of the best services of the Ethics Committee is helping people figure out what's allowed. Most of the work of the Ethics Committee never gets to the committee, most of the work of the Ethics Committee is done by Mr. Barnett who fields all kinds of phone calls and is giving guidance - some of that guidance is based upon what's written in the Ethics Code, some of that guidance is based upon what the Ethics Committee has found over its ten year history. A lot of the work of the Ethics Committee and the Ethics staff isn't to try and figure out how to zing people and how to get them, most of the effort is dealing with people to let them know what's allowed and what's not allowed. That's why when you have these provisions in the Ethics Code, that are somewhat muddy, or somewhat unspecific, it hinders that effort in letting people know what's allowed. Representative Elton didn't think anybody wants to say to Representative Ryan's staff, you can't do this. Number 0295 REPRESENTATIVE RYAN said he understood what Representative Elton was saying and appreciates that. He indicated his problem is all the stuff that they codify he has two choices, he can go to civil litigation or he can file a criminal complaint. He said, "This is a horse of a different color, I had some people appointed by this guy across the street that our (indisc.) behind them, but tell me how I have to conduct myself, and I don't find that is part of the American system." CHAIR JAMES remarked it's not totally true what you're saying. What we're doing is we're authorizing them, so were the legislature, they work for us and we in this document are telling them what their rules are. What we're determining here is not what they're going to do by what we're going to tell them to do. CHAIR JAMES asked Ms. Barnett if staff is working on a campaign on a Saturday, when they could be doing regular business on Saturday is a question. Number 0309 MS. BARNETT replied, "No, I don't think it's a question. Representative James, I do understand how they are expected to work any hour, any day, but 7.5 hours per day has to be devoted to legislative business, how you work that out - it can easily be worked out. ... They put in 7.5 hours Monday through Friday, it's now Saturday, they get to do what they want." CHAIR JAMES pointed out there may be a week as an example that they haven't put in 7.5 hours a day for five days and they will be making it up. She stated she doesn't intend to dock them for not working for 7.5 hours for five days. MS. BARNETT reported, unfortunately you are now into a personnel issue because they actually do have to do that, it's when we go above that 7.5. You're outside of ethics you're into personnel comp. [compensation] time - those issues, and we don't touch those issues. We make the assumption that there's 37.5 hours worked in a week. MR. BROWN said Section 20 makes conforming amendments to the Legislative Ethics law governing fund-raising during a session. Fund-raising is banned during a session, or did for everyone, except for the governor in the campaign finance statute. Legislators are banned from raising money during a session as an ethics matter. This section of the bill puts in the 90 day exemption which is needed to prevent special session or special election from not being able to have adequate fund-raising capacity. MR. BROWN indicated when they take up Amendment L.5 they will probably go through and change the references to state office to state legislature which will prevent it being an ethical violation of a sitting legislator running for governor raising money during a session. Number 0335 CHAIR JAMES said if we were in a special session in July and August, and the primary election in August, this exemption allows us because it's within 90 days of an election that we can fund- raise during the special session. MR. BROWN replied yes, you've already got accelerated reporting going on to a commission. REPRESENTATIVE RYAN noted the governor might call a special session in an election year. You having to go to a special session, and your opponent is allowed to raise money in the campaign and you're stuck. CHAIR JAMES replied that's not going to happen as long as it's within 90 day from the election. The same thing is true after the primary. Number 0346 REPRESENTATIVE BERKOWITZ referred to line 27, [subsection (2)], "accepting money from an event held," he asked why that language is in there. He indicated money doesn't always come from an event. however, this paragraph does not prohibit a legislator from accepting money from an event held during the 90 days immediately preceding an election in which the legislator is a candidate for state office; or CHAIR JAMES replied anybody gives you any money it's an event, right. REPRESENTATIVE BERKOWITZ responded, "I celebrate, but it's not necessarily an event." Number 0351 CHAIR JAMES pointed out subsection (1) says you can "solicit or accept a contribution or a promise or a pledge," and if there's an event during that 90 days you can keep that too because it may be some of your campaign people are out there having an event while you're busy in the legislature. Number 0355 REPRESENTATIVE ELTON said he thinks the purpose for this language, and for subparagraph (2), is essentially - if the Democratic Party is holding an event or if some other group is holding an event and money is raised at that event, then it's into your campaign. Subparagraph (1) covers the solicitation and the acceptance of a campaign contribution that wouldn't be from an event. Number 0361 REPRESENTATIVE IVAN asked Mr. Brown to summarize Section 20. MR. BROWN stated it makes two changes. The first change the committee wanted - currently if the House was gavelled out but the Senate was in session, you could have a fund-raiser as a representative, which is not really the intent of banning session fund-raising. So this makes it that either house is in session, the ban is in effect, you can't raise money during session. It also allows you to raise money or take money from an event if it's 90 days before the election you're a candidate in. The reason is it wouldn't be fair to have the governor be able to call a special session - and you'll have a fund-raiser planned and will have to cancel. It's not fair to limit people's rights, that's when they need the money most acutely right before the election. Number 0370 CHAIR JAMES said under the recent campaign finance reform about 90 days before the primary, without a special session, is all the time you have to raise the money. MR. BROWN referred to Section 21. He said, "This allows the Ethics Committee to defer consideration of a complaint that deals with human rights issues to the - until the Human Rights Commission has had a chance to look at it. It's pretty simple. It prevents dual (indisc.)." CHAIR JAMES stressed, "I'll tell you what that's going to do, we just had that bill in this committee and it takes them 12 to 18 months to get to looking at something. I don't think we want to be able to defer any decision by the Ethics [Committee] until they finish that." MR. BROWN replied they may, they don't have to, they may. He asked Ms. Barnett how many complaints has she had that allege only violations of human rights. MS. BARNETT replied normally we don't go into this, but none. Number 0380 CHAIR JAMES asked then why do we need it. MS. BARNETT pointed out the purpose of this is just to say when it's a human rights issue it should go first to the Human Rights Commission who deals with their code all the time. Then it can come back to us. She stated it's a logical step. Number 0387 MR. BROWN referred to Section 22. He said this deals with contracts and leases, it takes out some of the restrictions that existed before and puts in new restrictions. It increases the annual amount of the lease that requires disclosure of $5,000. It doesn't require that things be only let through competitive bidding because there are some things that are just as good as competitive bidding in the State Procurement Code. He indicated that was too restrictive a reference to the kind of contracts that could be permitted. And it adds the requirement that family member contracts have to be disclosed. He mentioned it's something the committee wanted and it's a compromise in their eyes, it gives a little, it takes a little. Number 0395 MR. BROWN explained Section 23 adds a new subsection that clarifies that there are certain state (indisc.) benefit programs that aren't subject to disclosure and that the Ethics Committee publishes a list and that just makes it clear that you don't have to disclose it (indisc.) program. It also clarifies that a grant - the result in a contract is a contract. He asked Ms. Barnett if that was right. (c) This section does not apply to a contract or lease issued under a state program or loan that is subject to AS 24.60.050. A grant that results in a contract but that is not subject to AS.60.050 is subject to this section. MS. BARNETT replied correct. CHAIR JAMES remarked a grant that results in a contract is also subject to this. Number 0401 REPRESENTATIVE RYAN offered an observation. He said almost all the money that goes out to do anything in Alaska comes from the state because of the oil money and the various taxes that are collected. We are citizen legislators, we have to make a living we can't survive on 24... TAPE 98-48 Number 0001 REPRESENTATIVE RYAN continued. He said her profession does not allow her to trot out her list of clients off to APOC because these people have a right of privacy, they can't do that. What are we going to do, narrow this pool down to people who panhandle on the corner to make a living? This is what we're generally doing, we're taking all kinds of professional people and everybody else and excluding because they can't. He indicated lawyers, physicians and psychiatrists are not going to trot out their list of clients - so here we come down the line until we get to a bunch of people who have no one with whom they're doing any business of any consequence that they can come and tell you. This is what the net result of this is. Representative Ryan asked is this the type of individual you want to serve in this body. CHAIR JAMES asked Mr. Brown if he could respond to that. Number 0009 MR. BROWN replied you either prohibit or disclose are the two options in this type of law and we're trying to go the disclosure route. This particular section is allowing larger amounts of money to go undisclosed, it's specifying certain programs - never trigger the disclosure requirement because they're available to everyone (which saves paperwork and time and money for everyone). If you (indisc.) know that your family member is getting a contract over $5,000 the public has the right to have that disclosed. He stated he can't think of many contracts, or leases, that invoke us into the confidentiality requirement as medical professional relationships or legal professional relationships. Mr. Brown believes that's a different matter, that's a matter for whether or not legislative financial disclosure or public official disclosure should include that level of detail. He believes the commission makes allowance for that. You don't need to know every person who went to see Doctor (indisc.) and he's a psychiatrist in any given year do you. Number 0020 MS. MILES pointed out the conflict of interest law that requires disclosure of a clients name does have a exemption for psychiatrists, for medical doctors and certain (indisc.- noise) client. CHAIR JAMES asked about attorneys and accountants. REPRESENTATIVE BERKOWITZ responded attorneys have to disclose and he found that very troubling because people can come to him with confidentiality and he has to breach that confidentiality for what he finds is minimal state interest. CHAIR JAMES said, as an accountant, she doesn't release the names of whom she works for. She indicated she did make a list when she first filed to run for office (it was a much smaller list because she sold her larger business). There are so many reports, one report is over $100 and another is over a $1,000, because she has a corporation that is the property management, she has to list her tenants that pay over $1,000 and has to report that. Chair James remarked it's a nuisance. Number 0037 REPRESENTATIVE BERKOWITZ suggested an amendment that allowed, if there is proprietary or privileged information connected with the relationship, that relationship need not be disclosed except in the most general terms. MR. BROWN believes the commission would probably be more comfortable if it would be disclosed and maintained confidentially. REPRESENTATIVE BERKOWITZ explained his problem as an attorney is he has an ethical obligation to advocate zealously on behalf of his clients and to protect their concerns. When they raise a concern, if he had a client that said, "My name should not be disclosed," he's boxed in. He doesn't believe he should be required to divulge the name of a third party who has no connection to the state. If he generally says he's an attorney and he has clients that ought to suffice. MR. BROWN noted they wouldn't be able to cover that section of the bill today due to time. He stated they can look at that in AS 39.50, specification of what has to be disclosed. Number 0052 CHAIR JAMES mentioned both in campaign finance reform and in legislative ethics we narrow the field of who can do this job, and that certainly is not in the best interest of the public. With campaign finance, unless you're an incumbent or unless you have a lot of your own money, it's just not going to be possible for you to do it, she thinks that was a big mistake. On ethics as well, she believes they could limit the requirement to disclose, if there is a special relationship between you and that person, but just because you're their accountant, attorney, or their professional in any way - and they paid you money for that - it's just a business relationship it seems this shouldn't have to be disclosed. CHAIR JAMES continued. She said down the road it might be necessary for you to put the type of cases you handled will be affected by this piece of legislation, (as was mentioned before) you can do that on the floor, in committee and you also have to do it in writing if you ask for a bill to be filed or in an amendment she suspects. On what Representative Ryan was saying, there has to be a presumption that we all have a conflict of interest. What it amounts to is you have to put your life as an open book, and even if you do there's no guarantee that people aren't going to pick on you anyway, even after you've told them everything. She wants to make sure they give the tools to the Ethics Committee that it makes it easier for them to do their job in protecting us not destroying us. From her perspective she believes they should err on the part of substantiating that we're not being unethical and that their goal shouldn't be to find out that we are but that we are not and that's a message we need to get to the public. However, when we put another line in the statute it's one more thing we have to do, the more you put in the more things are going to get missed and then somebody's going to be in trouble for missing something. Number 0097 MR. BROWN moved to Section 24. He said this enables the Ethics Committee to refrain from publishing details of a (indisc.) disclosure that otherwise would be public information. This is in response to a payment made by the Violent Crime Compensation Board to someone covered under the code, perhaps a legislator, and they decided that wasn't going to serve a public interest it was going to harm that person's right to privacy being a victim of a crime more than it was going to benefit the public's right to know that he or she got a compensatory payment. A legislator or legislative employee who believes that disclosure of participation in a program would be an invasion of the participant's right to privacy under the state constitution may request the committee to keep the disclosure confidential. If the committee finds that publication would constitute an invasion of privacy, the committee shall publish only the fact that a person has participated in the program and the amount of benefit that the unnamed person received. The committee shall maintain the disclosure of the name of the person as confidential and may only use the disclosure in a proceeding under AS 24.60.170. If the disclosure becomes part of the record of a proceeding under AS 26.60.170, the disclosure may be made public as provided in that section. MR. BROWN stated this new language is almost the same thing they could put into the public official and legislative financial disclosure statutes relating to APOC. Number 0110 REPRESENTATIVE BERKOWITZ stressed the right to privacy doesn't flow wholly from the state constitution's expressed section, Section 22, there are also federal constitutional interpretations that show a right to privacy and those interpretations could also flow through other parts of the state constitution as well as through statutory interpretation. He suggested they remove this section which limits the right to privacy from the state constitution. MR. BROWN asked just refer to the participants right to privacy. REPRESENTATIVE BERKOWITZ replied yes. Number 0117 MR. BROWN referred to Section 25. He said this specifies that in protective orders issued by the committee you are going to get in trouble if you violate it. This has to do with protecting people who are joint subjects of a complaint, for example, "I can't violate the other subject's right to privacy for whatever my motivation might be, that I'm angry, that we got in trouble, that I think it was his or her fault more than mine, that I'm so bitter I have nothing to loose." He noted there is no reason he should jeopardize that person's right to privacy under ethics proceedings, so this enables the committee to issue protective orders for that purpose. (b) A legislator or legislative employee who is the subject of a complaint under AS 24.60.170 violates this section if the legislator or legislative employee violates a protective order issued under AS 24.60.170(i). REPRESENTATIVE RYAN asked if they were talking about his right to employ or not employ any of his staff. MR. BROWN replied this has nothing to do with employment, it has to do with talking about an ethics investigation. Number 0128 MR. BROWN said Section 26 adds a reference to the deadline, which has been moved to the 15 of February elsewhere in the bill (AS 24.60.105). He indicated that's probably something they're going to revisit in the next committee of referral because there are those who think that's too early for everything to be produced on an annual basis. (b) A legislator or legislative employee required to make a disclosure under this section shall make a disclosure by the date set under AS 24.60.105 of the legislator's or legislative employee's close economic associations then in existence. Number 0133 MR. BROWN reported Section 27 relates to spousal and lobbyist disclosure. He said since the ban on spousal lobbying was taken out of the bill, this adds a new subsection which requires spouses of legislators or legislative employees or their spousal equivalents to disclose lobbying relationships. And if a new client gets picked up you have 48 hours to notify about the new client. (d) When making a disclosure under (a) of this section concerning a relationship with a lobbyist to whom the legislator or legislative employee is married or who is the legislator's or legislative employee's spousal equivalent, the legislator or legislative employee shall also disclose the name and address of each employer of the lobbyist and the total monetary value received by the lobbyist from the lobbyist's employer. The legislator or legislative employee shall report changes in the employer of the spouse or spousal equivalent with 48 hours after the change. In this subsection, "employer of the lobbyist" means the person from whom the lobbyist received amounts or things in value for engaging in lobbying on behalf of the person. MR. BROWN said this will be amended if they put the ban back in by taking out the reference to legislators because if they're banned they can't disclose this. REPRESENTATIVE RYAN asked, "If I were to have my staff send a letter out to everybody in my district that held a fishing license and congratulate them on doing something, would I have a problem." MS. BARNETT replied no, this does not relate to partisan activities. CHAIR JAMES indicated SB 105 will be brought up again on Tuesday.
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