Legislature(2003 - 2004)
04/30/2004 08:05 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
HB 557-LOBBYIST PROHIBITIONS Number 0930 CHAIR WEYHRAUCH announced that the next order of business was HOUSE BILL NO. 557, "An Act regarding lobbyist prohibitions." CHAIR WEYHRAUCH stated, "We have CS for HB 557, Version U. This is a work draft." [No motion was made at this time to adopt the committee substitute (CS) for HB 557, Version 23-LS1921\U, Craver, 4/26/04, as a work draft]. Number 0920 REPRESENTATIVE CHERYLL HEINZE, Alaska State Legislature, as sponsor of HB 557, stated that the bill would protect people, legislators, and legislative employees from threats and or bullying, in relation to their testimony before a committee. She said 99 percent of lobbyists are sophisticated people; people who are welcome into her office and whose perspective and knowledge she values. She indicated that it is only a few lobbyists who push the envelope on their code of ethics. REPRESENTATIVE HEINZE said she had looked into the lobbyists' code of ethics and found "it was virtually nonexistent." She noted that in working with [the Alaska Public Offices Commission (APOC)], she has diligently tried to keep the language of the bill specific and "very narrow." She emphasized that she views lobbyists as a valuable part of the [legislative] process. She also emphasized that "it is the process that we must collectively protect." Representative Heinze, [in regard to bullying], stated that intimidation and fear of retribution works. She said she strongly believes that there should be freedom of speech without retribution; legislators should be able to introduce bills and follow them through, without fear of retribution. Furthermore, she said that any person who testifies before a committee or via teleconference should be allowed to do so, without fear of retribution. She stated, "Just as there is sanctity in the court room, there must be sanctity in the legislative process." She said it is up to legislators [to protect that sanctity]. She said the legislative code of ethics was used as a guide, as well as "some language of some of the other states." Number 0700 HAROLD HEINZE, testifying on behalf of himself, told the committee that he is a 30-year resident of Alaska. He revealed that he has testified before municipal assemblies, the legislature, and the U.S. Congress. He mentioned an Associated Press (AP) article carried by the Anchorage Daily News, regarding [HB 557]. He said he was surprised not to see reflected in that article, any outrage by legislators. He said it seems to him that this issue goes far beyond free speech. He stated, "When I read this article, I sort of felt I was [hearing] a judge in a courtroom saying, 'Well, it was only a little bit of jury tampering - nothing really to worry about.'" He indicated that it's hard enough for most folks to testify, without having any feeling that something could happen to them for expressing their thoughts to the legislature. He stated that he's not certain that the bill goes far enough, in terms of penalties. He rated this issue on par with the seriousness of jury tampering in a courtroom. He concluded, "I think that's the way you should look at the process here and how it would impact the people that are before you." He thanked the committee for the opportunity to present his views openly. CHAIR WEYHRAUCH said some legislators don't call the press to comment, so, the fact that there was no outrage from legislators is not that surprising. He also noted that no one [from the press] called him. Notwithstanding that, he said, "I think we share your concern." Number 0460 TAMMY KEMPTON, Regulation of Lobbying, Alaska Public Offices Commission (APOC), Department of Administration, stated that, currently, the commission does not have a position on HB 557, and it has submitted a zero fiscal note. She said there may be a fiscal impact on the commission as a result of "this amendment to the lobbying law"; however, it would be impossible at this point to quantify what that impact might be. She explained that if there are dozens of complaints filed, there will be a strong fiscal impact. MS. KEMPTON continued, by reading from her written testimony [included in the committee packet], as follows: The fiscal note we submitted was based on the original version of HB 557, not on the committee substitute. The original version did not include civil penalties for violations of Section 121 and current law does not provide civil penalties for such violations. The only penalties currently are criminal. Thus, if a violation did occur, the commission would be required to conduct a full investigation, hold a hearing, make a determination, and then, if a violation was found, report the violation to the Department of Law, who then would make a determination whether or not to proceed. This is a time-consuming and expensive process. The committee substitute gives the commission authority to impose civil penalties against a lobbyist who violates any of the provisions of AS 24.45.121 and this is a very positive change. The commission will be able to conduct an investigation and, if a violation is found, they would suspend the violator's lobbyist registration and/or impose a fine of not more than $5,000. The ability to impose a civil penalty will enable the commission to stop the behavior more quickly and with less cost than imposing a criminal penalty. And the criminal penalties are still available for the most egregious cases. We do, however, have a concern with this bill, and that is that it's not going to accomplish its intent. Because of the change to the lobbying statute last year, an employee lobbyist is not required to register until he or she has lobbied for 40 hours in a 30-day period. So, an employee lobbying for his or her employer, who engages in this type of behavior, or thinks they might, will simply not register. And the commission has no authority over employee lobbyists who have not yet triggered the requirement to register. This legislation will prevent a professional lobbyist from engaging in such behavior. Presently, we have 60 professional lobbyists and 66 employee lobbyists [registered]. Last year at this time ... we had 72 professional lobbyists and 114 employee lobbyists. MS. KEMPTON offered to answer questions from the committee. Number 0204 REPRESENTATIVE SEATON directed attention to page 3, [beginning on] line 8 [of Version U], which read as follows: (i) will take or withhold or will cause another person to take or withhold a legislative, administrative, or political action, including support for or opposition to a bill, employment, nominations, or appointments; in this sub-subparagraph, "political action" has the meaning given in AS 24.60.990; or REPRESENTATIVE SEATON, in regard to this language, asked if not supporting a person in an election would be a criminal offense. MS. KEMPTON said she has not read Version U and is not familiar with the term "political action" and how it is defined, because the definition is in the legislative ethics code, not the lobbyists' code. CHAIR WEYHRAUCH stated for the record that the committee is "speaking to" Version U. Number 0085 REPRESENTATIVE COGHILL noted that the definition is [within] AS 24.60.990, and read as follows: (13) "political action" means conduct in which public officials, including legislators or legislative employees, use their official position or political contacts to exercise influence on state and local government employees or entities; it includes but is not limited to endorsing and pledging support or actively supporting a legislative matter, a nominee, or a candidate for public office; REPRESENTATIVE COGHILL said, "I wonder how you would hold somebody accountable for that as a lobbyist, under this ... rule." REPRESENTATIVE SEATON said political action is what takes place in the legislature. TAPE 04-75, SIDE A Number 0001 REPRESENTATIVE SEATON questioned again whether political support would be a violation. Number 0039 MS. KEMPTON responded, "Lobbyists aren't allowed to support candidates, in terms of giving political contributions, and they're not allowed to fundraise or serve on their campaign. And they can only give contribution to those candidates ... in the district in which they're eligible to vote." CHAIR WEYHRAUCH noted that what [lobbyists] can do is talk to political action committees, groups, or individuals and encourage support and contributions to one candidate over another. Number 0094 REPRESENTATIVE HEINZE remarked that she has tried to keep the bill narrow, so that it only applies to "testimony in a committee." Number 0132 REPRESENTATIVE COGHILL said, "If there was an implication on record, that it might involve some political action, then they would be in violation." CHAIR WEYHRAUCH said, "You could imply a political threat to oppose one bill, in exchange for a vote for another, and that happens a lot." Number 0182 REPRESENTATIVE COGHILL responded, "Your example is good, and especially if they are substantive issues that have political ramifications that would be legitimate for a lobbyist to comment on." Number 0194 JON BITTNER, Staff to Representative Cheryll Heinze, Alaska State Legislature, sponsor, clarified that the provisions of the bill would only kick in if a threat was used to influence the way someone testifies or whether or not he/she testifies. REPRESENTATIVE COGHILL indicated that "hidden in the language" is the problem that would exist in substantiating such a threat. He indicated that APOC would have to be involved and it may be one person's word against the other's. MR. BITTNER offered his understanding that a civil hearing would be held. He said the burden of proof would not be as heavy as it is in criminal law, although it would still be fairly substantial. Number 0331 REPRESENTATIVE SEATON asked [about a situation in which] the bullying or intimidation wasn't "solely in the mind of the person that's being intimidated or bullied." MR. BITTNER said that although he agrees with Representative Seaton, the sponsor felt that "by tying it to the way you testify before a committee ... would make it a little more clear - a little more substantial." He added, "You can be bullied, but it would be difficult to think you were being bullied to change your testimony, without some sort of proof." REPRESENTATIVE SEATON said he doesn't see the narrowness of "this." He directed attention to [page 3], lines 14-16, which read as follows: (B) bully or intimidate with the intent of influencing a legislator, legislative employee, or member of the public in regard to taking a position on an issue, voting, testifying, or lobbying. REPRESENTATIVE SEATON said, "This is not narrow on testimony to a committee. I mean, this is any time that they were going to ... talk to a legislator, and you don't want them to say something on that. And if they felt intimidated, that would be a charge to this ethics violation, as I see it." He suggested asking for APOC's opinion. Number 0452 REPRESENTATIVE LYNN asked how he would defend himself if he were a lobbyist who was accused. Number 0482 PAMELA LaBOLLE, President, Alaska State Chamber of Commerce (ASCC), indicated that the language is so broad that if a lobbyist were to state his/her disagreement with something, for example, he/she may be open to civil fine and lose the ability to lobby. REPRESENTATIVE LYNN asked, "Have you ever appeared before a committee and have a legislator do a variety of bullying you?" MS. LaBOLLE answered yes. She noted that in the aforementioned article, she did say that legislators have a greater ability to bully lobbyists than lobbyists do legislators. REPRESENTATIVE SEATON indicated that the aforementioned language on page 3, lines 14-16, would include lobbyists arguing with lobbyists. REPRESENTATIVE HEINZE said there are bullies in school yards, but they are not allowed to continue their bullying. She remarked that some of those bullies grow up to bully as adults. She said she wants "those sideboards," and indicated that she wants committee input and also to see the bill moved out of committee. CHAIR WEYHRAUCH stated that he had made a commitment to Ms. LaBolle to hear HB 557 and to "ask if there was a motion to move this bill today." He told Representative Heinze that it was her call whether she wanted him to ask for a motion, or to hold the bill for further study. Number 0754 REPRESENTATIVE COGHILL stated that he is not prepared to vote to move the bill today. He said he appreciates what Representative Heinze is trying to do; however, he stated that if a person has a serious disagreement with somebody, one person may think they are being intimidated. He said he doesn't know "how we could get down to proving that, even when it's in testimony before a committee." He revealed that he has had some heated exchanges with people during testimony, because "we got caught in the moment of a discussion." He admitted he has even gotten angry with people who have not liked his position. CHAIR WEYHRAUCH asked Representative Heinze again whether or not she wanted the committee to make a motion to move the bill. REPRESENTATIVE HEINZE clarified that the bill is not about "he said, she said"; there has to be a "mountain of evidence." She credited APOC as being smart enough to know that. She expressed her willingness to work with each member of the committee to tighten up the language of the bill as it moved to the House floor. CHAIR WEYHRAUCH reiterated his question to Representative Heinze, and asked if there was a motion to move HB 557. REPRESENTATIVE COGHILL reiterated his recommendation to hold the bill, because the issue is a huge one. He indicated that the bill needed to be narrowed down. REPRESENTATIVE HEINZE said, "I can do that." Number 0900 CHAIR WEYHRAUCH, in response to Representative Coghill, clarified that his intention had been to take action on the bill, but he wants to leave that decision up to the sponsor. REPRESENTATIVE HEINZE reiterated her idea of working with each of the committee members before the bill "hits the [House] floor." CHAIR WEYHRAUCH said, "That sounds like committee work." REPRESENTATIVE LYNN said he thinks the committee is "nibbling around the edge of a serious issue," and he has problems with the way the bill is currently written. Number 0068 CHAIR WEYHRAUCH indicated his intention to hear HB 557 again. [HB 557 was heard and held.]
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