Legislature(1997 - 1998)
04/07/1998 08:06 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 0003 CHAIR JAMES announced 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," was up before the committee and confirmed Suzie Barnett was available via teleconference. Number 0005 BEN BROWN, Legislative Administrative Assistant to Senator Kelly, Alaska State Legislature came before the committee. He indicated they would pick up where they left off on Version LS0074\L, 4/2/98, Section 28, page 19. Number 0010 CHAIR JAMES introduced Representative Jerry Sanders as a new member of the House State Affairs Standing Committee. Number 0013 MR. BROWN explained Section 28 increases the amount that one can take in a gift annually, AS 24.60.080(a) currently has a limit of $100, the ethics committee recommended increasing it to $250 because $100 isn't a substantial enough level. MR. BROWN stated during session, it's not legal to take anything from lobbyists except for food and beverage for immediate consumption. That's what they have been enforcing. This actually puts it into statute in a real explicit manner. (a) Except as otherwise provided in this section, a [A] legislator or legislative employee may not solicit, accept, or receive, directly or indirectly, a gift worth $250 [$100] or more, whether in the form of money, services, a loan, travel, entertainment, hospitality, promise, or other form, or gifts from the same person worth less than $250 [$100] that in a calendar year aggregate to $250 [$100] or more in value. Except for food or beverage for immediate consumption, a legislator or legislative employee [, AND] may not solicit, accept, or receive during a legislative session a gift with any monetary value from a lobbyist or a person acting on behalf of a lobbyist. Number 0031 REPRESENTATIVE KIM ELTON mentioned he is scheduled to solicit on behalf of KT00 radio for their fund-raising drive tomorrow morning. He asked Ms. Barnett what happens if a lobbyist calls in and donates to KTOO. Number 0036 SUZIE BARNETT, Professional Assistant, Legislative Ethics Committee, testified via teleconference. She replied there's an advisory opinion that came out before you began serving on the ethics committee that allows for solicitation for charitable organizations so long as they meet certain conditions, including "501 c" status, or recognized as local and ongoing charitable organization. She concluded that she will provide that information to him and reiterated that it is fine for him to do that, but he personally could not accept a gift. Number 0044 MR. BROWN said Section 29 are some exemptions to the ban on receiving gifts, notwithstanding (a) of this section, it's not a violation of this section for a legislator or legislative employee to accept - this allows you to stay at someone's house and have that be hospitality. He said the bill would put in a restriction on the exemption that a vacation home outside the state is not considered a residence, so you can't go to someone's condo in Hawaii and say, "Oh, I was just staying overnight at their house." That's a gift of value under the code if it's outside the state. (A) with incidental transportation at the residence of a person; however, a vacation home located outside the state is not considered a residence for the purposes of this subparagraph; or MR. BROWN stated Section 29 will also permit the receipt of discounts, if you were traveling, you could save the state money, but not be perceived for being unethically given a gift. (B) when on official state business, but only if receipt of the discount benefits the state; Number 0052 MR. BROWN referred to page 20, lines 17 through 26 of Section 29. He said this allows legislative session discounts on behalf of the capital city. (7) a discount for all or part of a legislative session, including time immediately preceding or following the session, or other gift to welcome a legislator or legislative employee who is employed on the personal staff of a legislator or by a standing or special committee to the capital city or in recognition of the beginning of a legislative session if the gift or discount is available generally to all legislators and the personal staff of legislators and staff of standing and special committees; this paragraph does not apply to legislative employees who are employed by the Legislative Affairs Agency, the office of the chief clerk, the office of the senate secretary, the legislative budget and audit committee, or the office of the ombudsman. Number 0060 MR. BROWN stated Section 30 deals with disclosure of the value of gifts. The dollar amount has been raised from $100 to $250 for conforming purposes and the deadline has been brought forward two months. The idea there being that the earlier the public knows about the receipt of these gifts, the higher the public policy is served. (d) A legislator or legislative employee who accepts a gift under (c)(4) [OR (6)] of this section shall disclose the gift if it has a value of $250 [$100] or more; the [. THE] disclosure must include the name and occupation of the person making the gift, [AND] the approximate value of the gift, and [. A GIFT UNDER (c)(4) OF THIS SECTION REQUIRED TO BE DISCLOSED UNDER THIS SECTION] shall be disclosed to the committee within 30 days after [OF] the receipt of the gift. Except as provided in (i) of this section, a gift [TO THE COMMITTEE. GIFTS] under (c)(6) of this section that has a value of $250 or more shall be disclosed to the committee annually on or before February 15 [APRIL 15] of the following calendar year; the [AND THE] disclosure needs to include only a description of the gift and the identity of the donor [THE VALUE ONLY IF THE VALUE OF THE GIFT EXCEEDS $250]. MR. BROWN said originally these disclosures were made to Alaska Public Offices Commission (APOC) in addition to the ethics committee and in order to reduce paperwork and unnecessary red tape, the committee is going to be the recipient of the reports and in turn will forward them to APOC so that they are available to the public. The committee shall forward to the Alaska Public Offices Commission copies of the disclosure concerning gifts under (c)(4) of this section that it receives from legislative employees who are required to file financial disclosure statements under AS 24.60.200 and from legislators. MR. BROWN asked Ms. Barnett if she had a "web page" for publishing disclosures other than the Journal. MS. BARNETT replied no, but they do keep a list available and when people ask they provide it. MR. BROWN reported APOC on the other hand, has a user friendly format where most everything filed with the commission is available on the web. Number 0072 REPRESENTATIVE JOE RYAN asked about the fiscal note. MR. BROWN reported the fiscal notes have not been revised since many of the changes were made. He said, "The most expensive part of the bill was the ramping up of the Executive Branch Ethics Act and transference of a lot of the duties from the Department of Law to the Personnel Board. Now that the proposal that we're looking at, is not going to transfer anywhere near as much of that responsibility, or work, I think the fiscal note will shrink precipitously. The same thing for the APOC fiscal note, now that we've reduced a number of people in the executive branch who are going to be filing public official disclosure forms, I'm hoping to see that fiscal note shrink. ... To really answer your question, they were quite large. The fiscal note, since this bill passed the Senate and came over, it was in the order of a quarter million dollars a year from the Personnel Board, seventy thousand dollars a year from APOC, zeros from Law, LAA [Legislative Affairs Agency] and from..." UNIDENTIFIED SPEAKER interjected, "Let's let Law handle it all then." Number 0086 MR. BROWN moved onto Section 31. He indicated this is what Ms. Barnett calls the "low-budget campaign" section of the bill. It specifies that a small amount of a contribution that has to be reported under the Campaign Finance Act doesn't have to be considered a gift under this section. (e) A political contribution [THAT IS REPORTED UNDER AS 15.13.040] is not a gift under this section if it is reported under AS 15.13.040 or is exempt from the reporting requirement under AS 15.13.040(g). MR. BROWN asked Ms. Barnett to speak on this issue. MS. BARNETT said if Brook Miles is there, she can speak to this better because these low budget campaigns were created in campaign finance reform. She explained, "What this change is, is saying that, you know we've always said - and the law is clear in stating that contributions to campaigns are not gifts. And this further clarifies that, given that change in campaign finance reform and the creation of these little low-budget campaigns, still contributions to those are still not gifts." Number 0096 CHAIR JAMES asked what is the limit on the new change. UNIDENTIFIED SPEAKER replied $2,500. CHAIR JAMES said the limit used to be $1,000. If you have a campaign that is less than $2,500, you don't have to consider those as gifts. MR. BROWN replied in the affirmative. And they're also exempt from the standard reporting under the Campaign Finance Act. UNIDENTIFIED SPEAKER asked if that includes municipal campaigns. MR. BROWN replied yes it does. Number 0101 MR. BROWN said Section 32 is an exemption of the gift restrictions that deal with the receipt of gifts from foreign governments or other governmental entities. This has been defined to include other states, local governments and foreign governments. He mentioned, "This is to allow the receipt of gifts for protocol purposes by legislators. ... Even if somebody from the City of Kenai comes and wants to give you something, as long as you receive it in a public spirited context on the behalf of the legislature, this exempts your receipt of it." Number 0109 MR. BROWN said Section 33 redefines what we call family members for the purposes of the Legislative Ethics Code. (g) In this section, "immediate family" or "family member" means (1) the spouse of the person; (2) the person's spousal equivalent; (3) a child, including a stepchild and an adoptive child, of the person or of the person's spousal equivalent; (4) a parent, sibling, grandparent, aunt, or uncle of the person; and (5) a parent, sibling, grandparent, aunt, or uncle of the person's spouse or the person's spousal equivalent Number 0116 REPRESENTATIVE MARK HODGINS asked when can they start making amendments to delete some of this stuff. CHAIR JAMES replied when they've completed going through the bill. CHAIR JAMES noted Representative Berkowitz arrived. UNIDENTIFIED SPEAKER jokingly said, "Delete all of the above." Number 0124 MR. BROWN explained Section 34, page 22, adds five new subsections to the gift portion of the statute. He informed Representative Elton that this is where we get to the question you asked earlier. (h) Notwithstanding (a) of this section, a legislator or legislative employee may solicit, accept, or receive a gift on behalf of a recognized, nonpolitical charitable organization. (i) A legislator or legislative employee who receives an inheritance worth $250 or more from a person other than a family member shall disclose the fact of the receipt of an inheritance and the identity of the decedent to the committee by the deadline set out in AS 24.60.105. The committee shall treat the disclosure as a disclosure relating to a gift not connected to the recipient's legislative status under (c)(6) of this section. This subsection does not require disclosure of the value of the inheritance. MR. BROWN explained it deals with the receipt of the inheritances and makes the disclosures subject to a different standard of confidentiality, upon receipt by the committee. Number 0131 REPRESENTATIVE ETHAN BERKOWITZ asked why is this in here. MS. BARNETT replied Senator Pearce felt that there was no way to deal with inheritance at the moment under the Ethics Code and that there should be a way to disclose it confidentially and handle it. REPRESENTATIVE BERKOWITZ said it seems to him that if he inherited something - and he gets property out of it, it goes on his financial disclosure forms. MS. BARNETT replied she doesn't think that the committee itself is wedded to this particular section. It was just a proposal on the senator's part as way to deal with an inheritance. Number 0142 MR. BROWN said (j) deals with the gift of volunteer services to a legislator. It specifically allows university interns and the Job Training Partnership Act, gifts of volunteer services. It would not permit BP [British Petroleum] to pay for an extra staffer in your office - and that's the idea. REPRESENTATIVE HODGINS asked if that would include the University of Alaska. MR. BROWN replied no. This specifically allows internships from the University of Alaska and the Job Training Partnership Act. Number 0149 REPRESENTATIVE RYAN referred to line 7, "This section does not permit a legislator or legislative employee to accept a gift of services for nonlegislative purposes." He said there goes your campaign help out the window. MR. BROWN stated he doesn't think it has that far reaching effect. CHAIR JAMES implied it is an outright statement. REPRESENTATIVE BERKOWITZ said, "If we're running a business and someone wants to come to a (indisc. - talking) in the business, that's a gift of services, not just for the campaign." CHAIR JAMES agrees with him. She said, "I was thinking that a gift of services for nonlegislative purposes - and I'm thinking about all of us who are in business while we're working as a legislator and particularly when we're in the interim, even more so. ... Quite frankly, I have a lot of problem with that when it's for nonlegislative purposes because I thought that we had - a little back further here, that says we can accept gifts for nonlegislative purposes - we just went by that one." Number 0164 MR. BROWN replied this question has been raised several times. "Because the reference in that sentence that we're questioning here refers to the subsection, I don't think it in any possible way undoes your right to accept gifts under any other part of the statute. It's merely an attempt to prevent the language here from enabling you to have BP pay for a maid to come clean your house and use subsection (j) as a defense of that arrangement as according to the drafter." REPRESENTATIVE RYAN pointed out nobody anticipated that putting a sign up would be a political contribution. Nobody anticipated that women coming to a political luncheon would count as part of the total amount of money that a party could raise. He indicated some organizations don't show common sense. He concluded, "I'll be darned if I want to give them another reason to make a stupid interpretation of the law. So I think I'm going to move, when the time comes to solve this problem early on, we'll just delete this baloney and go on." MR. BROWN asked Ms. Barnett if deleting that last sentence of subsection (j) would damage the new statute. Number 0176 MS. BARNETT clarified that gifts are gifts and you just have to figure out how they apply. She said she believes Representative James and Berkowitz have a legitimate question. Ms. Barnett said, "If you are receiving a gift - regardless in which capacity or part of your life - with a value in this bill of over $250, then you need to figure out how it fits into the gift code. In this section, I believe that you don't need to worry about this last line because it - to me it clearly says - it refers to this subsection and it's saying to you that it's only talking about volunteer services and trainee services." MS. BARNETT noted, "In a larger capacity, and the question about campaigns that Representative Ryan asked, I believe that Brook Miles could speak to because there are definitions of that in our Ethics Code - exempts those. You don't have to worry about volunteer time in your campaigns. A volunteer to your business, an intern to your business - I've never addressed that question before. But I honestly don't feel the code applies to it." She indicated she can work on that question and get back to the committee. REPRESENTATIVE HODGINS said he believes it does speak to that. He indicated he would be in violation if a relative came into his post office and volunteered an hour or two, he would be in violation of that with this subsection. CHAIR JAMES stated family doesn't count, but she believes if it was his neighbor or a good friend then it would be a violation so she has a real problem with that. She asked, is it that you cannot take a gift over $250, if you do you have to disclose it. Number 0200 MS. BARNETT replied generally that's the line, (if the bill passes) anything below that ($250) is an acceptable gift regardless of whom it's from. There's not a reporting requirement. At the point at which you hit the $250 mark, or today at the point at which you hit the $100 mark - then you have to start asking yourself questions, "Does this gift fit into any of the exceptions." Ms. Barnett concluded you'll have to disclose if it fits into any of the exceptions. If it doesn't fit into any of the exceptions, then you have to return the gift. REPRESENTATIVE HODGINS said, "I'm the contractor for the Nikiski Post Office, and I have an agreement with the school, not the University of Alaska, to allow kids to come in under their Vocational Education Program - and they work for less dollars than the normal employee - the rates that they work for, that's less than the normal employee, is that a gift." MS. BARNETT indicated she doesn't like to give quick answers - because with their informal advice she usually tries to take a minute to look through the law. She said, "I would say that that's not a gift, you are having an exchange of value - you're paying for their services, it may be at a discounted rate, but that is a business - a contractual agreement between you and your business and does not fall within the gift section here. That would be my informal advice, it's not binding on the committee." Number 0221 REPRESENTATIVE HODGINS said, for example if BP has a cleaning person come in and you pay them a buck. MS. BARNETT replied she's quite sure, at that point, that he would declare that to be a gift. REPRESENTATIVE HODGINS asked what's the difference, an employee is an employee. MR. BROWN asked who's paying them, BP or you. MS. BARNETT remarked right. REPRESENTATIVE HODGINS replied the school pays the employee - the student. MS. BARNETT said but you're providing a vocational educational experience. The committee, in cases like this has had this question posed to them and the committee's able to say yes. She stated, "In fact the JTPA [Job Training Partnership Act] trainees - someone came and said, 'Look, JTPA pays for a trainee, may we accept it,' and the committee looked at the situation and said yeah." CHAIR JAMES mentioned she has a big problem with this, but they'll think about it and address it later. Number 0234 MR. BROWN explained subsection (k) (page 23, line 9). He said this places a requirement on legislators and legislative employees - that in receipt of a gift by a family member that is based upon that family member's connection to you as a legislator or legislative employee - requires disclosure under the code as if you had received the gift. That's merely to prevent the spouses of legislators from being bought lavish gifts as a means of going through a loophole in the code. CHAIR JAMES read the following: (k) A legislator or legislative employee who knows or reasonably should know that a family member has received a gift because of the family member's connection with the legislator or legislative employee shall report the receipt of the gift by the family member to the committee CHAIR JAMES asked for an example. MS. BARNETT replied gifts of travel, for matters of legislative concern, given to allow your spouse to travel with the legislator would have to be reported. The same would hold true for gifts that legislators or legislative employees would be prohibited from accepting that are received by family members. So, a gift of over $250 given to the spouse of a legislator, primarily because of the connection to the legislator, would have to be reported. CHAIR JAMES said she understood and asked to move on. CHAIR JAMES announced Representative Ivan is present. Number 0249 REPRESENTATIVE RYAN asked who makes the determination that the gift is given because of the persons relationship with the legislator or legislative employee. CHAIR JAMES replied it's a perception. MR. BROWN explained subsection (l). He said, "This merely empowers the committee to - and mandates that the committee use fair market value as a standard. So, again trying to prevent the loophole saying, 'I thought the crystal vase was worth $12.50' - that's not something that the committee wants people to feel like they have leeway to do so - the committee's going to go ahead and you have the fair market value standard (indisc.) means as ascertaining the value of gifts covered by the code." (l) In this section, the value of a gift shall be determined by the fair market value of the gift to the extent that the fair market value can be determined. CHAIR JAMES expressed concern. MR. BROWN remarked that's a questionable standard because there's replacement costs and we discussed this in subcommittee a little. CHAIR JAMES said she understands that they had talked about this before, and it also depends on where the gift came and how much they paid for it. The problem with fair market value is how much is anybody willing to pay. For example, someone got a good deal and bought you a simple little gift and didn't pay very much for it, but the gift was very valuable, then you may not be able to accept it. She stressed that doesn't seem reasonable to her. In common law, the intent drives the system - in this case, perception drives the system. Number 0271 CHAIR JAMES said she believes that unless there is a complaint that the value that ascertained on the report from the legislature that she doesn't believe that the ethics committee, on their own, should not accept the value that's placed on it by the legislator or the person who's reporting. If the complaint is they have this very valuable thing, then they might have to respond to the complaint. But it seems to her that the best thing for legislators to do is, in their own record, determine where they got the value. MS. BARNETT stated you have explained exactly the way life works with the committee. CHAIR JAMES asked why do we have to put it in here. MS. BARNETT replied it was added as a guidance for people so that they don't have to call the office as often and say, "What should we do," and our logical response is, "Go for fair market value." CHAIR JAMES gave her trip to China as an example for fair market value. It's eight to one in American money. If she were to use Chinese money as opposed to American money, it would have made a big difference and, or what she could have purchased in this country. Chair James concluded, "That's not necessarily the fair market value here, it's what could I buy it for in American money there. Someone could say, 'Well, that was a lot more valuable here,' and maybe it was. ... Fair market value is a fine way to do it, but it seems to me like cost is better." Number 0289 REPRESENTATIVE HODGINS asked who came up with the CS. CHAIR JAMES replied it's the result of the subcommittee. REPRESENTATIVE BERKOWITZ stated they reviewed it. CHAIR JAMES further explained that the subcommittee went through the amendments (that was brought from Senator Kelly's office), they went through the 30 pages of suggested changes and agreed that some of them should be put in the CS, and some should not because they were too controversial. She indicated after the committee has gone through version L, they will next go through the suggested amendments, and any other amendments that this committee wants to address. REPRESENTATIVE RYAN suggested SB 105 be allowed to die in the House State Affairs Standing Committee. CHAIR JAMES didn't agree with him. REPRESENTATIVE ELTON said he thinks we're mixing up where the real problem may be. He believes some people have a philosophical problem with the ethics committee and the statutes that govern it. He indicated he views this piece of legislation as an opportunity to make it better. If SB 105 doesn't pass, it will contribute to a continuing grayness that the ethics committee has to deal with all the time. So, to the extent that we look at this bill, as a way to improve it, and to the extent that we revise this bill so that were comfortable with the improvements, that's a good committee function. If we do nothing, some of those areas of grayness will remain out there. Number 0316 MR. BROWN referred to Section 35 which prohibits acceptance of compensation for personal services. That's meant to prevent a professional for instance from receiving a $50,000 contract for not doing any work for a company that has an interest in legislative business. The problem with "not commensurate with," is it prohibits pro bono work, that means you can't do a job and get a lot less than the market value for it. (a) A legislator or legislative employee may not (1) seek or accept compensation for personal services that is significantly greater than the value of [INVOLVES PAYMENTS THAT ARE NOT COMMENSURATE WITH] the services rendered taking into account the higher rates generally charged by specialists in a profession; or (2) accept a payment of anything of value, except for actual and necessarily incurred travel expenses, for an appearance or speech by the legislator or legislative employee; this paragraph does not apply to the salary paid to a legislator or legislative employee for making an appearance or speech as part of the legislator's or legislative employee's normal course of employment. REPRESENTATIVE BERKOWITZ asked if value in this context is fair market value. MR. BROWN said he didn't think there is a standard here because this deals with "giving" the services not "receiving" them. He asked for Ms. Barnett opinion. MS. BARNETT replied, "So, if you were an attorney who charged $200 an hour, and you said you would do it for $1 an hour. It's that difference. It's what we're talking about." Number 0324 REPRESENTATIVE BERKOWITZ stated, "I was thinking more of the case where you have a nonrefundable payment to an attorney, say $2,500 to do a DWI [driving while intoxicated]. ... You know what you're doing, and if the cards break right you can get those cases done in a couple hours. If they don't break right, you wind up working for significantly less than an hourly. This will enable you to do that, basically." He concluded that it's a question of whether he needs to return some of the money, but he would be precluded by this ethics Act from taking that $2,500. MS. BARNETT indicated she reads that differently. She pointed out there are perhaps ten other attorneys who are as capable of doing that exact scenario, and therefore in your profession you are commensurate. Number 0334 CHAIR JAMES said for example, "In my profession [Certified Public Accountant, CPA], I give people monthly rates all the time, and that's unusual in my business. Most of the people in my business do everything by the hour, and so sometimes I spend a lot of time on something and I don't get as much as I should, but many times I make more than I would if I charged by the hour." MS. BARNETT noted that she thinks on common sense, logical basis, there would be no question. Unless you are out of the normal range, no one, including the ethics committee is going to question it. They haven't so far. She explained this change basically allows you to charge less. It's all whether you're in the range of your profession. REPRESENTATIVE RYAN said he didn't mind anyone else setting the price or the value of what they think their services are worth, but he objects vehemently to some people, that he doesn't know, tell him what they think his expertise as an expert witness is worth, what a fair market value is, or what someone else got paid. Number 0350 MR. BROWN moved onto Section 36, beginning on page 23 of Amendment L. He said this deals with representation by legislators and the unlikely eventuality of legislative employees who, in the course of employment, represent someone else for compensation before a state agency or board. This requires disclosure of that representation. REPRESENTATIVE BERKOWITZ stressed, "It is very difficult as an attorney, or as a doctor, or as a CPA, when you have clients and you have to disclose the names of those clients simply because -- I personally chose to get involved in the public eye. Now the parts of my life that are in the public eye should be and are subject to public scrutiny. But when people hire my services in the private context, they're entitled to some privacy protection. And if they're not, then my business as a citizen legislator (indisc. - noise). So, I don't like having to disclose names of my clients." MR. BROWN said he would be happy to work on that language so that clients' names aren't being disclosed unnecessarily. Number 0367 MS. BARNETT informed the committee Alaska is one of the few states that allow their legislators to represent clients in front of state agencies. One of the ways to deal with it could be to eliminate that possibility all together, then there would be no disclosure requirement. REPRESENTATIVE RYAN suggested repealing the disclosure requirement. Number 0371 MR. BROWN moved onto Section 37 of the bill. He explained this deals with a new deadline of 15 February for disclosure of information. Most disclosures are currently being made, this is meant to neatly gather in one section of the ethics code - the timing and subject matter of all the disclosures that are required. MR. BROWN said Section 38 specifies public members of the ethics committee don't get compensated but do get per diem and travel. REPRESENTATIVE RYAN asked where's the fiscal note. CHAIR JAMES explained that's already in existing law, it's part of the budget. She then read: Public members of the committee serve without compensation for their services, but are entitled to per diem and travel expenses authorized for boards and commissions Number 0397 MR. BROWN explained Section 39 deals with alternates on the ethics committee. If a member of the committee (indisc.) complaint, or a staff person to a member of the committee, the presiding officer would have to appoint an alternate and it would be quite obvious at that point in the confidentiality of the process would have been breached effectively. The approach would have the president and speaker appoint alternates for each regular member... TAPE 98-49, SIDE B Number 0001 REPRESENTATIVE BERKOWITZ said, "As I understand it, the Speaker of the House or the President [of the Senate] shall appoint. It doesn't say the speaker or the minority leader - it just says, this is just one person, one party, and I come from a background that worries about the appearance of an impropriety." CHAIR JAMES stated if you're going to have an alternate, you have to have two in the House and two in the Senate, because you have to have an alternate for the one they're replacing. She indicated alternates would include one majority member and one a minority member - they are standing alternates. MR. BROWN read Section 40, line 6, page 26: An alternate must have the same qualifications as the regular member for whom the alternate stands as alternate and is subject to confirmation as required for the regular member. Number 0014 REPRESENTATIVE BERKOWITZ said there should be (indisc.) equality to which of the alternates gets selected. He doesn't believe the speaker or the president needs to be involved. He suggested numbering the alternates 1, 2, 3, 4, and just rotated through them, that way it's random. CHAIR JAMES remarked it's hard to find somebody willing to do this, it's not a coveted position. MR. BROWN explained minority organizational caucus is defined, it's very specific about the partisan representation. REPRESENTATIVE BERKOWITZ stated he is not worried about the composition of the committee as a whole. He said, "I'm worried about - initially, and that concern was alleviated -- with this alternate, I thought maybe the speaker would just reach out in the public and grab somebody, but that's (indisc.)..." CHAIR JAMES remarked no, it's in the legislature. REPRESENTATIVE BERKOWITZ continued, "But the speaker does have a pool of alternates to draw on." MR. BROWN replied only at the beginning of session when appointing other members though. REPRESENTATIVE BERKOWITZ said for example, one of the members of the committee is precluded from serving, then the speaker looks at the pool of alternates and says, "you will be the one who's (indisc. - interrupted)." MR. BROWN replied, "No, no, you're appointed (indisc.), she's appointed as your alternate. You can't serve. She automatically serves at no discretion - she is an alternate to your seat." Number 0030 CHAIR JAMES further explained the way it's currently set up. She pointed out we have two minorities - one from the House and Senate, two majorities - one from the House and Senate. If one of those people, either the minority or the majority from the House or Senate happens to be directly involved with a complaint, if the complaint is against them or their staff, someone will take their place he should have the same qualifications as they. REPRESENTATIVE BERKOWITZ stated he understands that, it makes perfect sense to him. But he doesn't understand why the speaker or the president is involved in this process. CHAIR JAMES stated it's in the original. They get appointed by the speaker [or president] after it's been run by the caucus. She concluded that it goes through the minority leader [or majority leader] in all cases. MR. BROWN noted there is a two-thirds concurrence to confirm the membership. Number 0055 MR. BROWN said Section 41 deals with participation in the political process by the ethics committee members, staff, and probably more significantly contractors to the committee. Much like the standards that apply to the members of the Public Offices Commission, they can't be out there raising money, having or attending fund-raisers to the extent that we can limit their behavior. CHAIR JAMES asked do they also have to report to the ethics committee. MR. BROWN replied we require a certain amount of disclosure by the public members. He asked Ms. Barnett what's the disclosure requirement for contractors. MS. BARNETT replied, "For example, if we hire a firm to do an investigation and three of them are involved in the investigation, not all 20 employees -- the other 17 never touch anything then no, those employees of the contracting firm are not involved. But those three yes, are required to act as employees and disclosure requirements during their term of actual employment. This section really is you're focused on the ethics committee members and yes they are required to disclose matters and you've seen disclosures from them in the past. When Joe Donahue's wife Helen used to work for the legislature they both would disclose that economic association." Number 0073 MR. BROWN explained Section 42 deals with contracting with firms. It enables the firm, with whom the committee's contracted, to request that some of its employees be exempted from compliance - we're not attempting to loop in everyone who works in that firm. He said the corporation or partnership has to request from the committee that a certain number of its employees be exempted. He said, "It gives the committee the ability to exempt them, which it doesn't technically have right now." Number 0082 MR. BROWN said "Section 43, advisory opinions, this expands the time frame in which the ethics committee can - and also the pool of persons to whom it can respond - requesting advisory opinions. This enables them to answer questions for newly-elected legislators or persons who are going to be coming on board as legislative staff, further out before the actual period of services of a legislature or work as a legislative employee begins." MR. BROWN referred to the top of page 28. Just because you asked for an advisory opinion you don't have the right to go into an executive session when they're deliberating about it. REPRESENTATIVE BERKOWITZ asked does this authorize the person requesting an advisory opinion to instruct the committee to go beyond 60 days. For example, he can ask for an opinion and say, "But I don't want it for another three months." MR. BROWN replied it reads "the committee shall issue an advisory opinion within 60 days." Number 0098 MS. BARNETT said we've asked about this and the law doesn't seem to preclude it that if we write a letter back to the requester saying, "We will not be able to hold a meeting for 65 days, would you waive that 60-day requirement." And if the requester says yes, then the committee is empowered to do that because it's the requester who needs the information and who perhaps needs it on a shorter time line. If it finds that it is advisable to do so, the committee may issue an opinion under this section on the request of a person who reasonably expects to become subject to this chapter within the next 45 days. The 60-day [30-DAY] period for issuing an opinion may be extended by the committee if the person requesting the opinion consents. CHAIR JAMES asked what if they say no. MS. BARNETT replied then we would have to hold a teleconference and get on it. Number 0107 MR. BROWN explained Section 44, page 28, deals with the issue of complaints that are not resolved but go away due to the resignation or termination of someone's public service or employment. He said that created a loophole - it would be possible to quit your job and come back, and the committee's jurisdiction over you would have expired with your employment. This deals with a situation of a legislator who was subject of an ethics complaint - coming back as working as a staffer - which we've had in the past few years. In that case the person had not complied with the provisions of an (indisc.) complaint against him by the committee. But there's nothing the committee could do. REPRESENTATIVE BERKOWITZ stated a legislator, subject of an investigation, could resign and then be exempted, and then run again. MR. BROWN replied the committee would be able within five years [statute of limitations] to bring the charges back up as soon as that person was again covered by the code. CHAIR JAMES asked what if they leave the legislature and go to work for the administration. MR. BROWN replied we don't have cross referencing between executive branch ethics and legislative ethics. CHAIR JAMES suggested both directions - "If there's someone that has an unresolved ethics problem in the administration, leaving and coming to work for the legislature or vice versa." She asked Mr. Brown to think about that. Number 0133 MR. BROWN explained Section 45 deals with the procedures for complaints. Currently there is a very loose standard to which complainants are held when they make their allegations. This formalizes the process a little bit more so complainants know that they have to state that they have reason to believe that the violation occurred and they have to put the facts that they believe that in there. (b) A complaint may be initiated by any person. The complaint must be in writing and signed under oath by the person making the complaint and must contain a statement that the complainant has reason to believe that a violation of this chapter has occurred and describe any facts known to the complainant to support that belief. MR. BROWN noted the committee will warn the complainant they may be required to come forward and speak to the complaint they're making. Upon receiving a complaint, the committee shall advise the complainant that the committee or the subject of the complaint may ask the complainant to testify at any stage of the proceeding as to the complainant's belief that the subject of the complaint has violated this chapter. REPRESENTATIVE RYAN said he is going to make an amendment to this particular chapter that substantially says, "If you bring forth the complaint and it can't be substantiated, you're subject to civil penalties. ... You can make all the potshots you want, but if you can't substantiate them, you're going to pay." Number 0148 MR. BROWN mentioned the committee is empowered to return complaints that are frivolous without investigating them. CHAIR JAMES asked Ms. Barnett what kind of measurement would you use to determine whether a complaint was frivolous. MS. BARNETT reported the committee isn't empowered to do that and the changes in the law will help them. They would like your assistance in being allowed to return frivolous complaints and not have to waste time and energy on them and without having to convene an entire subcommittee. She concluded that currently they aren't allowed to and this bill would allow them to. CHAIR JAMES asked does this section give you enough information to support your decision that it is in fact a frivolous case. MS. BARNETT suggested she look at Section 46. CHAIR JAMES replied that's what she's looking at. Number 0163 MS. BARNETT said, "Yes, I guess, were you looking for specifics. The one I always use, if somebody writes in and says that, files a complaint against Representative James because they don't like the way Representative James drives her car, the committee still has to go through a procedure (to get together and look at it and say), 'Do we have jurisdiction over this.' ... I'd be able to, or the staff person, at the preliminary examination level would be able to say, 'No this is ridiculous, bye, bye,' and not convene a meeting, not spend a nickel." CHAIR JAMES stated she would say that example falls outside of her scope. If they do file a complaint, and the story they gave was an ethics violation, what if they don't supply any support or proof that they're on target. MS. BARNETT replied she believes the committee has, and always should, investigate those types of allegations because the public has a right to those types of actions, but also investigation often ends up saying no, and you are then protected as a legislator. She said, "And we are able to go through and say no there's no evidence to your allegation." CHAIR JAMES asked Ms. Barnett if she understands Representative Ryan's concern. If people can file a complaint, and cause stress for somebody, and they make a false claim that doesn't have any validity at all, that there should be some penalty for doing that - without cause. Number 0180 MS. BARNETT noted they like this change that they would have to sign agreeing to this, but currently they can't require them to use the complaint form. However, there is a law on the books 11.56.805, under the Criminal Code that says that they cannot knowingly or intentionally initiate a false complaint. Today you are still protected by that. Anyone can tell you in this process, whether it's the Human Rights Commission, all these kinds of things where complaints are filed against another person - and on the judicial side - it is difficult to prove, knowingly or intentionally initiates a false complaint. It is a standard and it exists. CHAIR JAMES asked, they do or do not have to use that form. MS. BARNETT replied currently they do not have to, however, they do try to get people to use this form. There's nothing in the code that requires them to do that. She said, "We like them to sign saying, 'I acknowledge I read that.' If they don't then, as a staff person, I call them and I say -- we're not trying to tell the public to be afraid to file a complaint. That's the goal, I don't believe, the legislature, but we do want them to be informed. And so I do tell them, I reference that law when they file a complaint, if they haven't filed on the proper form." CHAIR JAMES asked could we require them to put their complaint on this particular form in this bill. Number 0193 MS. BARNETT responded Section 45 requires that they sign the statement. MR. BROWN added that it's not a form, but they do have to have a statement that the complainant has reason to believe that a violation of this chapter has occurred and describe any facts known to the complainant to support that belief. MS. BARNETT explained that the form has to be notarized, the notary requirement is covered in another section of the bill. CHAIR JAMES asked if they signed because they had reason to believe, and made up the whole thing, then what is the recourse besides filing a civil suit against them for defamation of character. MS. BARNETT replied that is your recourse. MR. BROWN added and the Title 11 reference you just gave us as well. MS. BARNETT said she thinks they can include something in the bill that says "the form, people will sign it and it will read this." Number 0206 CHAIR JAMES indicated they will work on that. The reason she asked was because the State Affairs Committee just had a bill in committee on the Human Rights Commission and they don't have enough money to research all of the cases that they have so it's taking them a long time to get things done. Chair James said, "They gave us a percentage of 62 percent of the claims that come to them are unfounded. And I certainly support - the idea is that the public has the right to do everything that they want, but somehow or another we have to balance that with the rights of the others. And I'm not sure that the 62 percent of the claims being not founded is reality. And I don't know what your rate of frivolousness would be. But in this case, I guess you don't have that information because you haven't been able to determine if any were frivolous." REPRESENTATIVE RYAN indicated the prosecutors are plea-bargaining cases - murder, rape, burglary, and so forth. He said he doesn't think anyone will have much luck with a prosecutor on Title 11 on trying to get them to do anything about a complaint. He believes the committee needs to be creative in coming up with a penalty that will give the person who is accused as much satisfaction on being found innocent, as the person who accuses them on them being found guilty. CHAIR JAMES said it seems to her that the purpose ought to be as a deterrent more than it is a penalty. If there is a fear of a penalty out there, some people won't file a complaint. She indicated she would be more interested in the deterrent than she would be the actual penalty. REPRESENTATIVE RYAN added that part of the Division of Family and Youth Services' (DFYS) backlog that we have, they admit that approximately 50 percent of those are punitive - one parent wanting to get at the other files a complaint, and DFYS does nothing to them, they're groundless. He indicated that's quite rampant throughout the whole government. Number 0226 MR. BROWN explained Section 46 enables the ethics committee staff to return complaints for being frivolous and it's not wasting the committee's time. CHAIR JAMES mentioned that's one of the best parts of this bill. MR. BROWN stated the existing language of Section 47 deals with dismissal of complaints if there's not justification for their consideration. The committee would like to add: Committee deliberations and vote on the dismissal order and decision are not open to the public or to the subject of the complaint. MR. BROWN said, "That's to preserve the committee's ability to have a candid, full and open debate about why to dismiss the complaint." REPRESENTATIVE RYAN stressed that if he is the subject of a complaint, he has every right under the Alaska Constitution and United States Constitution to know what the disposition of that complaint is. MR. BROWN replied you will know what it is, but the ethics committee don't want you to be there while they're voting to dismiss the case. Number 0244 CHAIR JAMES said she understands what Representative Ryan is talking about. She explained if there is a complaint against him, and the committee is going into an executive session, and they're going to determine that they're going to dismiss the case against Representative Ryan, this says he can't know what happened in that meeting at all - he probably knows that it's going to be dismissed because he's going to get a comment on that. He wants to know how the people voted, he wants to know who supported not dropping it and who supported dropping it. And this says he doesn't have a right to know that, that's his concern. MS. BARNETT replied, "In response to Representative Ryan's question, Representative James earlier made a statement that it's very difficult to get people to serve on the ethics committee. I can tell you, if votes have to be recorded, I don't think any of you will ever want to serve on this committee because when you like your bill to get passed through somebody's committee that you have been recorded as voting, yes you found probable cause, that there was evidence of violation of the code. I mean you're in this political arena. And the committee talked about this at great lengths. It's not the public members who we're concerned about. They are very bold public members and willing to put their names on the line. It's to protect their representatives and senators who are willing to serve with them on the committee. They felt very strongly that votes should not be recorded in public." Number 0257 REPRESENTATIVE JERRY SANDERS asked if there are provisions in SB 105 for an appeal if the staff determines a complaint to be frivolous. MR. BROWN replied at this point he doesn't see the possibility for appeal in the proposed language in Section 46. He indicated the one who would suffer is the complainant. MS. BARNETT said she believes that if someone wrote to the chair of the ethics committee and said, "This complaint was dismissed by a staff person, I object," the chair would probably immediately take it up, but in fact there's nothing here that either says that can or can't happen. REPRESENTATIVE RYAN reiterated he is privy to that information because his character and his reputation is on the line. MR. BROWN concluded that this is an early stage, and likely results of these secret deliberations is going to be dismissals of complaints. Number 0284 MR. BROWN explained Section 48 deals with the committee's authority to revisit charges that they thought they had dismissed or disposed of through coming to an agreement for corrective action with the subject of a complaint. He said the ethics committee feels like the current code doesn't provide them with that ability and it creates a loophole - where you can agree to a corrective action and then not take it and you're off the hook. MS. BARNETT further explained it empowers the legislature to enforce its sanctions and corrective action and provides the committee a route to do that. Number 0292 MR. BROWN pointed out Section 49 refers back to Section 48 that if the ethics committee decides to charge a person, it's just a conforming reference to the procedure when there's not compliance. Number 0293 MR. BROWN explained Section 50, almost halfway through, deals with the discovery procedures that apply to proceedings under the ethics code. This enables -- the reference to the rule of civil procedure is still there, but it also allows the committee to adopt discovery procedures that enable earlier discovery by the subject to the benefit of that person and it also allows the committee to restrict the release of information - to prevent uneven gag-orders basically. Mr. Brown said, "The committee wants to tell the subject, that he or she can't speak about things that come up in the course of discovery, they have to (indisc.) the same restrictions on the complainant unless both agree, the gag-order basically can't be enforced." He noted the latter part didn't come from the ethics committee, but he doesn't think it's something the committee has a strong objection to." (i) A person charged under (h) [(b)] of this section may engage in discovery in a manner consistent with the Alaska Rules of Civil Procedure. The committee many adopt procedures that (1) impose reasonable restrictions on the time for this discovery and on the materials that may be discovered; (2) permit a person who is the subject of a complaint to engage in discovery at an earlier stage of the proceedings; (3) impose reasonable restrictions on the release of information that the subject of a complaint acquires from the committee in the course of discovery, or on information obtained by use of the committee's authority, in order to protect the privacy of persons not under investigation to whom the information pertains; however, the committee may not impose restrictions on the release of information by the subject of the complaint unless the complainant has agreed to be bound by similar restrictions and has not made public the information contained in the complaint, information about the complaint, or the fact of filing the complaint. MS. BARNETT indicated individual members of the committee do have a problem with it because they have absolutely no control over the complainant. She said the complainant does not receive discovery information - period. It's not accessible to them. So it's an odd piece of language and we don't have any control over it. MS. BARNETT stressed that the restrictions on discovery are to protect the legislator. She said, "I know this sounds odd, but complaints are often filed - or can be filed against more than one legislator in a complaint. And a case may even involve more than one legislator and it's not okay for one legislator to release everything at the expense of another one, or an employee involved. So think of it in those terms." REPRESENTATIVE RYAN indicated the committee spent an awful lot of money substantiating a case last year on whatever process they went through. He stated, "And anything that the person, about whom the complaint was made, had to do in their defense had to be out of pocket. And I don't see that that at all is fair. ... That because somebody made a complaint I have to reach in my pocket and to spend that when the committee can take public funds, and use whatever it seems to use, to substantiate its form of the complaint, there seems to be a basic unfairness here." Number 0316 CHAIR JAMES asked does that mean they're going to be able to get discovery on their own, early on, and present it to the committee. Or does that mean that they get to share the information of the discovery that the committee has found. MS. BARNETT read "The committee may adopt procedures that." She explained you're empowering your committee to adopt procedures that say, "Okay we want to be able to share discovery earlier." She said there are references in here as to when discovery can be allowed and the committee at times has felt like they would be happy to provide discovery but the proceedings wouldn't allow it. So that's what we're doing in this section. CHAIR JAMES said she certainly understands that. Chair James indicated when you're pursuing a case like this, that maybe some of the first discovery that you get, which appears to be one way is really not that way, and so there would be an opportunity for the subject of the complaint to rebut earlier. She asked what other reason would you want the person, who is the subject of the complaint to have privileged information of the discovery until you received all of the discovery. MS. BARNETT stated, in a logical manner, the only reason you would want to avoid providing discovery -- is if you have incomplete information. If you depose someone and you get a reference to something and perhaps you would like to then find out what that reference is and follow it up, generally that's about the only time where you have "fiery" information that's incomplete. Number 0335 CHAIR JAMES asked what kind of an opportunity does the complainant have to be engaged in discovery. MS. BARNETT replied the complainant is not involved in the discovery process. CHAIR JAMES asked do they have knowledge of the discovery as it proceeds. MS. BARNETT explained the committee process. She said when a complainant files a complaint, this is what they get. They file the complaint, they get a letter saying thank you, we've received your complaint. If the committee finds they have jurisdiction, they adopt a resolution outlining the scope of the investigation and the complainant gets a copy of that. If the committee goes to investigation, the complainant gets interviewed during the investigation. Many, many times the complainant has no first-hand knowledge. So there's not an in-depth interview. Then the complainant gets a copy of the decision at the end of the deliberation. CHAIR JAMES said she didn't understand the conversation on the gag- order on the subject as well as the complainant. MS. BARNETT remarked she agrees. She noted she is not speaking on behalf of the ethics committee, but "On a personal note, I would recommend deleting that section because it is confusing and it does lead - I believe if I was the subject of a complaint all of a sudden I would be concerned. I would be reading this and think Oh My God, the complainant gets discovery." Number 0348 MR. BROWN said, "I think what Senator Donley wanted to accomplish here is to prevent the subject of the complaints from being gagged by the committee. When complainants, even though they're not involved in a discovery process, are in fact running around to the media saying, 'I know so and so did this, the committee's investigating it right now.' It's an almost impossible problem to try to solve and a rather clumsy effort to do so that's in this language here. But it's a worthy goal that he had. Suzie's right, it's not very enforceable. There's just next to nothing the ethics committee's ever going to be able to do to control complainants' behavior." CHAIR JAMES mentioned she had made a note to talk to Senator Donley on this. Number 0355 REPRESENTATIVE RYAN asked if the ethics committee is taking depositions, does he have to hire an attorney and have them take depositions to protect himself. If so, who bears the cost of that. If the committee wants to go through all this investigation, he thinks they should have a fiscal note that allows the person subject to the complaint to have the same investigative process the committee has to protect themselves and the state will pick up the ticket, he thinks it's only fair. UNIDENTIFIED SPEAKER remarked if he's exonerated. REPRESENTATIVE RYAN added we provide a public defender for people who don't get exonerated, and we pay a tremendous amount paying for these people's defense. MS. BARNETT stressed most of the cases you would find are resolved long before the committee gets to anything that looks and sounds like a deposition. In their series of stages you will see that, when they get to the formal changes in a public hearing and, as you recall the first one, under the new law, the committee had with Senator Jacko. She said, "Those were the kinds of that level of involvement in a quasi judicial setting. Yes, we're at depositions at that point, but most of the cases are resolved in a different manner under corrective actions." Number 0374 MR. BROWN explained Section 51 deals with the confidentiality of proceedings before the stage of probable cause has been reached. He noted this is existing language for the most part until you get to the top of page 32. Because we duplicate some of the language in the Executive Branch Ethics Code - the part about transmission of information about criminal wrongdoing or violations of the Campaign Finance Act - it's kind of a streamlined mechanism. If the committee finds something that is really criminal or that it's blatantly inconsistent with the way campaigns are supposed to be financed, it has to just transfer that information over to the appropriate jurisdictional authority - though it can continue with its own ethics investigation. MR. BROWN stated the change on top of page 32 specifies that legislators, who aren't members of the committee, can't just decide to go sit in on deliberations before the probable cause stage has been reached - that is to address the problem Ms. Barnett spoke of a little while ago. REPRESENTATIVE BERKOWITZ mentioned he spends a lot of time in court rooms looking at people and accusing them of crimes. The Sixth Amendment is pretty clear to him that you should have the right to confront your accusers. MR. BROWN responded these aren't your accusers - the ethics committee isn't your accuser. He mentioned he didn't know in common law if there is much precedence for having the opportunity to confirm the person who's hearing your case, he's also a member of the same body you're a member of. He thinks there are a lot of things here that are just always going to be different, this is not really a judicial creature, it's a committee of the legislature. Number 0393 REPRESENTATIVE BERKOWITZ stated, "Subsequent to the determination of probable cause is the subject entitled to be present at all." MS. BARNETT said, "First let me just remind you that we're at the point where the committee is serving as the jury and having the subject in the jury room is something inconceivable to almost anyone involved in the process. During the deliberation when the jury goes out and goes into their room on the side, and that's what's happening is that they're acting in their jury capacity. Otherwise the subject of a complaint is told that they have access to the committee, but not during deliberations and they may request it at any time. And we have had subjects come in and meet with the committee, subjects write to the committee, subjects ask me to say something to the committee - they have access." REPRESENTATIVE BERKOWITZ repeated "Subsequent to the determination of probable cause." He said he just wanted to ensure that the subject of the investigation is entitled to be present at all fact finding stages of the proceedings. Number 0405 MS. BARNETT stated, "As long as you are not including..." TAPE 98-50, SIDE A Number 0001 REPRESENTATIVE RYAN said, "... And there was no responsibility on the part of the people who brought forth the accusations, or whatever. In fact they profited quite a bit because the person's goods were confiscated as a fine. And then when they were finally determined to be guilty, another fine was imposed and their relatives were sold into slavery to pay that fine. It's an old tradition, it (indisc.) Roman Catholic Church, it's well established in history. And bringing it forth and codifying it in Alaska law - I'm not too sure if we really want to do that. English common law says you look your accuser in the eye." Number 0017 REPRESENTATIVE BERKOWITZ said he had the initial concern that Representative Ryan does. But, as he understands it, we're in a situation here where anytime the accuser is presenting evidence, subsequent to the determination that a proceeding will occur, you do have the right to be present. This is akin to - in a criminal proceeding the defendant is not allowed to be present during jury deliberations, which everyone understands is acceptable, and the defendant is not required to be present during the determination of probable cause in front of a grand jury, although a defendant can present testimony to a grand jury. Representative Berkowitz stated he believes a probable cause determination here - would the subject have the opportunity to present testimony or present evidence. MS. BARNETT replied the subject always has the opportunity to present evidence and is in fact encouraged to do so in a variety of ways. She said, "However, I did misspeak - what this bill allows is the committee may permit the subject of the complaint to attend a meeting. So it empowers - at the moment - the committee was unsure whether they actually could allow the subject of the complaint to attend their executive sessions. This is allowing the committee to do so." REPRESENTATIVE BERKOWITZ stated, "So this opens it up over..." CHAIR JAMES interjected with exceptions to the deliberations and the vote. MS. BARNETT replied correct. MR. BROWN explained the final provision in Section 51 allows you to waive the confidentiality provisions. If you are a co-subject of a complaint, you can't waive somebody else's confidentiality provisions. You can only waive your own confidentiality provisions here. The confidentiality provisions of this subsection may be waived by the subject of the complaint, except that the subject of the complaint may not waive the confidentiality duty the committee owes to others and may not require the committee to deliberate in public. Number 0075 MR. BROWN explained Section 52 deals with the options available to the committee as punishment, it mandates that there be a timetable for compliance if there are certain steps in compliance, which is meant to protect the subject. And it testifies that it may include fines, but fines have to be imposed by the legislature - they can't be imposed by the committee. MS. BARNETT added that sanctions are imposed by the appropriate body of the House, or the Senate, or the appointing authority. We're talking about something, in the next few sections where the committee recommends putting into language, but the legislature holds the final power on all sanctions. Number 100 MR. BROWN explained Section 53 deals with the time line reporting and the committee's ability to recommend further sanctions to the legislature if the committee doesn't feel that compliance has been met by the subject. For example, when the committee recommends something and that recommendation is followed by the appropriate house of the legislature, the committee will be notified - okay the House and Senate went ahead and did what you said we should do. The subject then has the responsibility of keeping the committee informed, not the whole body, of whether or not they're doing what they were told to do. If they don't meet the time line, then the committee has the responsibility to decide - well, we need to tell the House or the Senate that Representative X or Senator Y didn't do what the legislature told him to do. It's the committee's responsibility to go back and say - well, the legislature told Representative X to do this, and he didn't, and therefore we're back to you again notifying you of that fact. MR. BROWN explained Section 54 is where the subject is a legislative employee, appointing authorities are told what they will do in response to the committee's findings to punish the person. He said this actually expands the appointing authority's ability to impose a different sanction, but it mandates that the appointing authority shall impose a sanction and again puts into statute the need for some timeliness to the compliance which doesn't exist right now. REPRESENTATIVE RYAN asked is the appointing authority the person who hires this legislative employee. MR. BROWN replied we get to that in the next section (Section 55) of the bill, it specifies very clearly who the appointing authority is for everyone, because that is also a gray area of the current code. Number 0151 MR. BROWN referred to Section 55, he said it's very easy with personal staff to figure out who the appointing authority is, but for committee staff, or employees to the Legislative Affairs Agency, it's not as clear. MR. BROWN read the list for the appointing authorities: (1) Legislative Council - Legislative Affairs Agency and anyone else whose floating out there, (2) Legislative Budget and Audit Committee - the fiscal analyst and everyone at the Division of Legislative Finance and Legislative Audit, including the Legislative and Budget and Audit Committees, (3) appropriate Finance Committees for the House and Senate Finance staff, (4) appropriate Rules Committee - for standing committees, and staff in the Chief Clerk and Senate Secretary's Offices, (5) is where most staffs are going to come. The legislator is given an out here, if you don't want to be the appointing authority for your staff because you're afraid that it's going to look like your not imposing the sanction recommended by the committee, you have the option of having the Rules Committee to do that for you - so it's impartial as possible, (6) Ombudsman - employees, and (7) the Ombudsman himself - the legislature. CHAIR JAMES asked what if a member of the ethics committee is unethical. MR. BROWN replied the appointing authority would seem to be the speaker or the president. MS. BARNETT said because they would be considered joint employees they would go before Legislative Council. MR. BROWN indicated anyone else, whose floating around there, we'll let Legislative Council be the appointing authority for. Number 0196 MR. BROWN explained Section 56 is a new section, it lists several options that are available to the ethics committee. He indicated right now there isn't a real limit on what the committee can try to impose. This gives people the idea of what might happen if they violate the code. It's been the duty of this committee to come up with appropriate penalties, some of those things that have been used in cases over the past few years appear in this list. MS. BARNETT stated these are only recommendations to the legislature and the committee is not stuck with them. Most of all it's recommendations to the legislature and the legislature, when it gets a list of ten recommended sanctions, it can pick (1), (3) and (7) and dump the rest, or it can create a whole new list. REPRESENTATIVE BERKOWITZ said as he understands it, based on some of the prior sections, if there's a sanction imposed on one of his employees, he could reduce it. MS. BARNETT replied no. She referred to page 33, lines 9 [8] and 10: The appointing authority shall enforce the sanction and shall report to the committee at a time specified by the committee concerning the employee's compliance with the sanction. MS. BARNETT explained you have the ability to impose a sanction recommended by the committee, or impose a different (indisc. - noise), but you shall enforce the sanction. Number 0249 REPRESENTATIVE BERKOWITZ stated, "If you say, for example this is a $500 fine, I can say no, it's a $100 fine, that's a different sanction, but I can enforce it still." MS. BARNETT replied correct, because again in that upper language it says: The appointing authority shall assume the validity of the committee's findings and determine and impose the appropriate sanctions. MS. BARNETT added, "You don't get to debate, guilt or innocence, or finding a probable cause. That's not yours to determine, but you get to determine and oppose the appropriate sanction." REPRESENTATIVE BERKOWITZ said for example you oppose a $5,000 fine required divestiture. He can say, "Well, no divestiture, and $1.00 token fine." MS. BARNETT replied that's correct. REPRESENTATIVE BERKOWITZ stated, "So I can essentially, as a legislator, gut what the committee does." MS. BARNETT responded that is the bottom line of everything to do with the ethics committee, the legislature and an individual legislator hold the power. REPRESENTATIVE BERKOWITZ said he has enough confidence in his staff not to worry that they'll run afoul. But he would imagine that there could be circumstances where this kind of power could be readily abused. There is a distinction between allowing an individual legislator to be the final arbitrator, and allowing the legislature as a whole to go through its various (indisc.) to dispense this justice. The pressure on an individual legislator, particularly where staff is concerned could be relatively enormous. You don't have a judge handing down sentences against her son or her employee, it's inconceivable to him that you can be in that sort of situation. CHAIR JAMES stated we can give it to the Rules Chairman. REPRESENTATIVE BERKOWITZ responded even the act of giving it to the Rules Chairman shows - you're caught on the horns of a dilemma. Either you comply with the sanctions, and you do what's recommended, or you do the loyal thing - which is to protect your staff even from their own folly - and get hammered. He believes the legislature should be taken out of the loop as far as administering punishment to his or her own staff. CHAIR JAMES asked who would he suggest do it. REPRESENTATIVE BERKOWITZ replied the legislature as a whole. MR. BROWN said he thinks the legislature might find that unwieldy. CHAIR JAMES suggested the Legislative Council. MR. BROWN replied maybe it could be the Legislative Council. Right now it's the appointing authority but there's no clear definition of who the appointing authority is. Number 0300 CHAIR JAMES stated she agrees with Representative Berkowitz, she also believes it should be Legislative Council in all cases. MS. BARNETT referred to page 33, subsection (b): (5) the legislator who made the hiring decision for employees of individual legislators; however, the legislator may request the appropriate rules committee to act in the legislator's stead; MS. BARNETT explained she believes the committee, when they created the ethics bill, had actually said the appropriate Rules Committee as opposed to Legislative Council because you have the protocol that says, "House members won't do business over in the Senate side and Senate members won't do business on the House side." They originally thought it was better not to have the legislator in for the reasons as stated by Representative Berkowitz and had recommended the appropriate Rules Committee and felt comfortable with that. It changed over the years but she thinks the legislature would prefer the Rules Committee versus Legislative Council. CHAIR JAMES said they ought to have an authority instead of spreading it out and causing a lot more distress. She asked how it changed over the years. Was that statutory changes? Number 0324 MS. BARNETT replied no, just in the bill itself. The reason is because some of the legislators said, "Darn it, we hired the guy and we want to deal with him." CHAIR JAMES suggested they earmark that section, they will begin on Section 57 on Thursday. She announced they will also be hearing HB 330 and HB 257 before they go into SB 105.
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