Legislature(2007 - 2008)CAPITOL 106
01/19/2008 11:00 AM House STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| HB296 | |
| HB281 | |
| HB260 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 296 | TELECONFERENCED | |
| *+ | HB 269 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 281 | TELECONFERENCED | |
| += | HB 260 | TELECONFERENCED | |
HB 281-CAMPAIGN FINANCE COMPLAINTS CHAIR LYNN announced the next order of business was HOUSE BILL NO. 281, "An Act extending the statute of limitations for the filing of complaints with the Alaska Public Offices Commission involving state election campaigns." 11:43:10 AM MICHAEL SICA, Staff, Representative Bob Lynn, Alaska State Legislature, presented the sectional analysis for the committee substitute (CS) for HB 281, Version 25-LS1115\M, Bullard, 1/18/08 [not yet before the committee]. MR. SICA said Section 1 would establish in code a retention period of six years for records of transactions listed in this section. Section 2, he said would add a new section, AS 15.13.042, mandating that each candidate, group, nongroup entity, or person required to report under this chapter preserve all necessary records for six years. Section 3 would amend AS 15.13.380(b), increasing the statute of limitations for filing a complaint for an alleged campaign finance violation from one year to five years. Mr. Sica said a sentence [from AS 24.60.170 - Legislative Ethics Law] was added, which read: "The time limitations of this subsection do not bar proceedings against a person who intentionally prevents discovery of a violation of this chapter." 11:46:43 AM REPRESENTATIVE DOLL indicated that she needed a minute to read a memorandum she had just received. CHAIR LYNN requested a motion to adopt the committee substitute. 11:47:20 AM REPRESENTATIVE COGHILL moved to adopt the committee substitute (CS) for HB 281, Version 25-LS1115\M, Bullard, 1/18/08, as a work draft. 11:47:43 AM CHAIR LYNN objected. REPRESENTATIVE DOLL explained that the memorandum is from Representative Gruenberg, asking the committee to consider amending the sentence to read: "The time limitations of this subsection do not bar proceedings against a person who the commission finds willfully prevents the discovery of a violation of this chapter. Such a finding by the commissioner must be based on clear and convincing evidence." REPRESENTATIVE COGHILL stated that "intentionally" and "willfully" are standards that the committee may wish to consider; however, the issue will be subject to review in the House Judiciary Standing Committee. CHAIR LYNN noted that he, Representative Coghill, and Representative Gruenberg serve together on the House Judiciary Standing Committee. He indicated that the issue would be dealt with in that committee. REPRESENTATIVE DOLL said that is acceptable. REPRESENTATIVE COGHILL suggested that the committee decide which version of the bill is before them. 11:49:40 AM CHAIR LYNN removed his objection. There being no further objection, Version M was before the committee as a work draft. 11:50:16 AM MR. SICA returned to his review of the sectional analysis. He stated that Section 4 pertains to [AS 24.45.111(a)], which already requires that a lobbyist retain records required under this section, and would add to that requirement: an employer, a retainer, or a contractor of a lobbyist. The section would also increase the retention period [from one year] to six years. Section 5, he said, [amends AS 24.45.131] to allow any person, not just a qualified voter, to file a complaint with the commission. 11:51:08 AM REPRESENTATIVE ROSES asked if the sponsor really means "any person," because that could include, for example, a nonresident visiting Alaska on a fishing trip or a head of a political party based in Washington, D.C. He said it would be nice if the person were at least a citizen of the U.S. 11:52:05 AM REPRESENTATIVE COGHILL warned that the legal definition of "person" can include corporation or trust. CHAIR LYNN suggested the committee consider specifying that the person be a resident of Alaska. REPRESENTATIVE COGHILL said the committee should probably have that discussion. He asked if the intent of the bill sponsor was to review the bill today, because he sees many places in the bill that may require significant discussion. In response to a question from Chair Lynn, he said he would like to hear the entire sectional analysis before offering amendments. MR. SICA continued to Section 6, which he said would add a new section, AS 24.45.131(d), which would prohibit commission members and staff who file complaints from participating in any commission proceeding related to the complaint. Section 7, he noted, would add AS 24.45.135, allowing "a person" - as well as a commission member or staff - to file a complaint [alleging a violation of AS 24.45.121-24.45.171 has occurred or is occurring]. Section 8 would amend AS 24.60.170(a), increasing the time limitation on complaints alleging a violation of this section from two years to five years. Furthermore, Section 8 would increase the time limitation for investigation of complaints against a former legislator from one year to five years. MR. SICA noted that Section 9 would add AS 24.60.255, which would allow a person, as well as a member of the Alaska Public Office Commission (APOC) or a member of its staff to file a written complaint alleging a violation of [AS 24.60.200- 24.60.260] has occurred or is occurring. The complaint must be filed within five years after the date of the alleged violation. Section 10, he said, adds a new section, AS 39.50.055, which would allow a person, as well as a member of APOC or APOC staff, to file a written complaint alleging a violation of this chapter has occurred or is occurring. Like Section 9, Section 10 would require the complaint to be filed with five years after the date of the alleged violation. It also would not allow an APOC member or APOC staff who files a complaint to participate in any proceeding of the commission related to the department. 11:56:15 AM REPRESENTATIVE COGHILL asked for confirmation that Title 24 addresses legislative issues, while Title 39 deals with administrative issues. CHAIR LYNN said he believes that is correct. MR. SICA said, "Public officials." He continued with his review of the sectional analysis. He said whereas Section 10 has to do with a complaint filed to APOC, Section 11 involves public officials with a complaint filed in court; it would allow a person, not just a qualified voter, to bring a civil action to enforce any of the sections of this chapter. Section 12 would amend AS 39.50.100, relating to public officials, and would create a statute of limitations of five years from the date of the alleged violation for a complaint to be filed under this section. Mr. Sica offered his understanding that "the code is currently silent on that," and the sponsor is looking for consistency through Titles 15, 24, and 39. MR. SICA said Section 13 would establish an effective date for the sections that have been amended and created in this act. He stated, "I think all that language in there is an attempt to capture the current investigations allowable under the existing code, while avoiding retroactivity on these sections. I don't know if it accomplishes that, but I think that's what we're looking at." Sections 14-16, he observed, "just look like boiler plate statements to me." 11:58:15 AM BROOK MILES, Executive Director, Alaska Public Offices Commission (APOC), thanked the committee for considering the request of APOC that the five-year statute of limitations be expanded to all four disclosure laws administered by the commission. The applicable statutes she listed as: AS 15.13, campaign disclosure law; AS 24.45, lobbying law; AS 24.60.200- 260, including the Legislative Ethics Act - the financial disclosure that is filed by members of the legislature, the public members on the Select Committee on Legislative Ethics, and the legislative directors that work within the Legislative Affairs Agency; and AS 39.50, executive branch financial disclosure. She also thanked the bill sponsor for including the same statute of limitations across all of those codes, as well as including a six-year retention of records, codified within each statute. Having that records retention requirement in law will aide APOC in searching through records further in the past. MS. MILES, regarding the concern over changing qualified "voter" to "person," stated: It was only in the lobbying law, where the free conference committee ... wrote this law in 1976 had the words that you had to be a qualified voter. Today, if a foreign natural visiting Alaska came into our office and filed a complaint under the campaign disclosure law ... this agency may have to accept it, because under that law, it's always been [that] a person could file. 12:02:31 PM JOYCE ANDERSON, Administrator, Select Committee on Legislative Ethics, said she concurs with Ms. Miles' remarks about making APOC's statute of limitations the same and changing the statute of limitations within the Legislative Ethics Code from two years to five years for filing a complaint, in order to make it consistent across the board, since both APOC and the Select Committee on Legislative Ethics work closely together. MS. ANDERSON related that she had spoken with Mr. Sica about a change to AS 24.60.170(a). She directed attention to page 4, of Version M, to a sentence beginning on line 7, which read: However, the committee may reinstitute proceedings concerning a complaint that was closed because a former employee terminated legislative service or because a legislator left the legislature if the former employee or legislator resumes legislative service, whether as an employee or a legislator, within five [TWO] years after the alleged violation. MS. ANDERSON explained that because the proposed language increases the statute of limitations from two to five years and the statute of limitations is already five years for a legislator, she thinks it is redundant to include "or because a legislator left the legislature" and "or legislator" within the proposed sentence. 12:05:31 PM REPRESENTATIVE COGHILL moved Amendment 1 to Version M, as follows: On page 4, line 9, following "service": Delete "or because a legislator left the legislature" On page 4, line 10, following "employee": Delete "or legislator" There being no objection, Amendment 1 was adopted. 12:06:28 PM MS. ANDERSON asked the committee to consider that once a legislator leaves office, there is very little left in the sanction code to impose any kind of sanction upon a legislator who is out of office. She offered an example of a former legislator who failed to file his final disclosures that were due at the Ethics Office and was fined $200. When he refused to pay, the Select Committee on Legislative Ethics referred the case to the Office of the Attorney General; however, that office does not follow up on fines unless they are over $500. She questioned whether this issue could affect APOC in terms of that agency's dealings with public officials. In response to a question from Representative Johansen, she clarified that the fine she referred to in the example had to do with disclosures, and the Select Committee on Legislative Ethics is asking for an increase in that fine through a separate bill. She said that when it comes to an issue regarding a complaint that's filed with the ethics committee, and the committee finds "probable cause," it has the option under AS 24.60.178 to impose a civil penalty of not more than $5,000 for each offense, or twice the amount improperly gained, whichever is greater. That section in statute also allows the Select Committee on Legislative Ethics to make a recommendation or take any appropriate measures. So, the rest of the sanctions that are recommended in the statute really have to do with individuals who are still legislators. 12:08:34 PM REPRESENTATIVE JOHANSEN interpreted Ms. Anderson as saying there are "no teeth," but he said if a fine is $5,000, for example, he is going to pay attention to it. MS. ANDERSON explained that the previous example was more about a disclosure than a complaint. She continued: I'm just saying that the only measure that seems to be listed in the statute for a sanction would be ... the dollar amount, versus any other type of sanction. So, there [are] still some teeth there, but I guess I'm just pointing out that once the ... decision of probable cause is made ... it is just strictly the dollar amount. MS. ANDERSON asked Representative Roses if he, as a member of the Select Committee on Legislative Ethics, would like to expound on that issue. REPRESENTATIVE ROSES replied that it's a matter of making the dollar amount high enough that it is worth the Office of the Attorney General's pursuit of the matter. CHAIR LYNN said he is disturbed that the attorney general is not pursuing the issue no matter the monetary value. 12:11:56 PM REPRESENTATIVE COGHILL, regarding having a statute of limitations on the ethics issue, stated that the fact is once someone leaves legislative service, there may be little "teeth" involved; however, should that person choose to file again, then there are teeth, because it becomes "a huge character issue on that particular individual." He expressed concern regarding how authority given by the legislature may be used. He asked Ms. Anderson, "What should we anticipate as a committee that was worth keeping records for five years on?" MS. ANDERSON offered an example wherein a legislator leaves office at the end of 2008, and two years down the road it becomes known that while he/she was still in office, legislation had been proposed that directly benefitted that legislator. A complaint could be filed against that legislator. Ms. Anderson said this would not create more record keeping, but would mean the committee would be looking at information that surfaced after the term of the legislator that would have been in violation of the Ethics Code. The Select Committee on Legislative Ethics would be obligated to do an investigation and make a recommendation if it found probable cause. In response to a follow-up comment from Representative Coghill, Ms. Anderson said if the committee found probable cause, the only option in the Ethics Code currently would be a penalty of $5,000 or less. REPRESENTATIVE COGHILL concluded that the question is whether or not the penalties are sufficient, because with the extended statute of limitations, the accountability measure would be kept alive for a period of five years after public service ended. MS. ANDERSON answered that's correct. 12:17:52 PM REPRESENTATIVE ROSES directed attention to page 3 of Version M, Section 6, lines 19-21, which read as follows: (d) If a member of the commission or a member of its staff files a complaint, that member of the commission or member of its staff may not participate in any proceeding of the commission relating to the complaint. REPRESENTATIVE ROSES asked if there are ever any complaints brought forth by APOC, or if the complaints are brought only by citizens outside the board. MS. MILES replied that in the past, APOC staff members have filed complaints; however, she offered her understanding that that has not happened since the late '80s. MS. ANDERSON, in response to a question from Representative Roses, clarified that the statute related to the Select Committee on Legislative Ethics is a little bit different from that of APOC. The ethics statute allows the committee to bring forth a complaint; the chair signs the complaint on behalf of the committee. A situation where the committee initiates its own complaint, she explained, is when information becomes known to the committee, but no complaint has been filed. REPRESENTATIVE ROSES stated that he wanted it clear on the record that the limitation related to APOC, in which a committee member is not allowed to sit in on the complaint hearing if he/she is the one to have brought the complaint forward, has nothing to do with the Select Committee on Legislative Ethics. He added, "Otherwise, if they brought it on behalf of the entire committee, there would be nobody there to hear the complaint." MS. ANDERSON responded that's correct. REPRESENTATIVE ROSES stated, "I just want to make sure that's on the record that that's not the intent of this bill." 12:20:06 PM CHAIR LYNN closed public testimony. 12:20:15 PM REPRESENTATIVE JOHNSON said he would like to hear for the record the definition of "person" found in Alaska Statute. 12:20:28 PM JANET DeYOUNG, Chief Assistant Attorney General - Statewide Section Supervisor, Labor and State Affairs Section, Civil Division (Anchorage), in response to a request from Representative Johnson, provided the definition of "person" as it appears in AS 01.10.060(a)(8), which read as follows: (8) "person" includes a corporation, company, partnership, firm, association, organization, business trust, or society, as well as a natural person; 12:20:45 PM REPRESENTATIVE JOHNSON asked, "Can you think of anything other than a government entity in a state that would not be a person?" MS. DEYOUNG responded, "I'm not even sure that a government entity wouldn't be a person, to tell you the truth." CHAIR LYNN surmised that the intent behind the discussion is to decide if the committee does not want a corporation to be able to file a complaint. REPRESENTATIVE JOHNSON clarified that his concern is that a group or an individual may form a corporation, file a complaint, disband, and disappear. 12:21:49 PM CHAIR LYNN stated that he has concern regarding Section 5. He suggested changing the language to read: "a resident of the state of Alaska." REPRESENTATIVE JOHNSON pointed out that then it would be necessary to know if the corporation was a resident. He stated that he would like the language to specify "registered voter" - someone who has at least enough vested interest in the state to register and participate in the system - because he said he thinks that would serve the purpose of eliminating corporations and partnerships. CHAIR LYNN concurred, but questioned how to phrase that in the bill. 12:23:35 PM REPRESENTATIVE DOLL moved Amendment 2, as follows: On page 3, line 13: Delete "person" Insert "registered voter" REPRESENTATIVE JOHNSON objected for discussion purposes. He said he appreciates the offer of Amendment 2, but wants first to ensure that it would not leave the word "person" elsewhere in the bill. 12:25:30 PM REPRESENTATIVE JOHNSON maintained his objection, reiterating that he would like the amendment to be conceptual. 12:25:40 PM REPRESENTATIVE DOLL withdrew Amendment 2. REPRESENTATIVE DOLL moved to adopt [Conceptual] Amendment 3, which would replace the word "person" wherever it appears in the bill with the words "registered voter". REPRESENTATIVE JOHNSON objected for discussion purposes. REPRESENTATIVE ROSES suggested that the amendment should specify the change is to "person" as applies to a person filing a complaint. He explained that there are other areas in the bill where "person" applies to someone who is on the board or serves on the commission. REPRESENTATIVE JOHNSON remarked that he is not sure he wants anyone serving on the commission who is not a registered voter. REPRESENTATIVE ROSES, in response to Chair Lynn, clarified that he had not just moved to adopt an amendment to Amendment 3. REPRESENTATIVE COGHILL objected to Amendment 3. He highlighted the following in the bill: "any person" - on page 3, line 13; "A person" - on page 3, line 23, and page 4, lines 15 and 25; and "Any person" - on page 5, line 4. He recommended that the amendment be drafted by Legislative Legal and Research Services. CHAIR LYNN said, "In other words, we know what we want to do, [we're] just trying to figure out how to get there." REPRESENTATIVE JOHNSON asserted, "And that's why it was conceptual was my understanding." REPRESENTATIVE COGHILL stated, "If that's your intention on those lines, then I will withdraw my objection." REPRESENTATIVE JOHNSON pointed out that he had objected, and he removed his objection to [Conceptual] Amendment 3. There being no further objection, [Conceptual] Amendment 3 was adopted. 12:28:24 PM REPRESENTATIVE COGHILL directed attention to page 2, Section 4, which read as follows: *Sec.4.AS 24.45.111(a) is amended to read: (a) A person required to register or report as a lobbyist or as a person who employs, retains, or contracts for the services of a lobbyist shall preserve all accounts, bills, receipts, books, papers, and documents necessary to substantiate the reports required to be made and filed under this chapter for a period of at least six years [ONE YEAR] from the date of the filing of the report containing these items. REPRESENTATIVE COGHILL said he can understand requiring lobbyists to keep records for six years, but questioned whether it is necessary to require the same for those who retain lobbyists. MS. DEYOUNG responded that employers of lobbyists are accountable presently under law; they file disclosure statements. [Section 4 in the proposed legislation] would, she said, permit the enforcement of those provisions in addition to enforcement of the lobbying reporting requirements. She said, "The record-keeping requirements facilitate the prosecution of the requirements for both employers of lobbyists and a lobbyist himself." In response to a request for clarification from Representative Coghill, she said, "The requirement for record keeping is new, but the obligation for the employer or retainer or contractor of a lobbyist to report is longstanding. So, that underlying disclosure requirement already exists." REPRESENTATIVE COGHILL said he was not aware of that. 12:31:46 PM REPRESENTATIVE JOHANSEN directed attention to the second paragraph on page 2 of a memorandum from Alpheus Bullard of Legislative Legal and Research Services, included in the committee packet, which read: Your draft serves to increase the statute of limitations for the filing of administrative complaints with the Alaska Public Offices Commission. Please be aware that these extended statutes of limitation for the filing of complaints alleging violations of AS 15.13 do not serve to amend the existing law pertaining to criminal prosecution of related election law violations. REPRESENTATIVE JOHANSEN said it seems like Mr. Bullard is telling the committee that "these two things don't quite comport." He asked for feedback. 12:32:41 PM MR. SICA responded that Ms. Miles, Ms. Anderson, and Mr. Bullard agree that "with the revisions in this Act now codifying in the various sections themselves - everything from ... retention schedules of six years to the statute of limitations for five years - there's no longer a need for [AS] 15.56.130." 12:33:04 PM MS. MILES responded: Yes, the conflict with [AS] 15.56 would no longer exist if we repealed that. ... Although the commission may conduct an investigation that would resolve in their referring their findings to the Criminal Division of the Department of Law, prosecution under campaign misconduct, of course, is not within the jurisdiction of the commission. MR. MILES suggested the question be asked of Ms. DeYoung. 12:33:56 PM MS. DeYOUNG stated her concern is that if AS 15.56.130 covers other election violations, there would definitely be an impact if that provision is repealed. She said she would like the opportunity for the Criminal Division of the department to consider the issue. 12:34:24 PM REPRESENTATIVE COGHILL said that particular issue belongs in the House Judiciary Standing Committee. He recommended that the committee refrain from deleting any language as yet. 12:34:52 PM REPRESENTATIVE ROSES echoed that sentiment, suggesting that the House State Affairs Standing Committee send a note along with the bill, asking the House Judiciary Standing Committee to take a close look at this particular provision to determine whether or not it should be repealed. 12:35:08 PM REPRESENTATIVE JOHNSON stated his intent to "keep a real tight handle on the money." He asked if the fiscal note is money that is included in the governor's proposed budget. MS. MILES answered no. 12:35:53 PM REPRESENTATIVE JOHNSON said it seems that the Select Committee on Legislative Ethics, to a certain extent, and the Alaska Public Offices Commission have become judge, jury, and hangman, without the oversight. He said he is uncomfortable with putting too much power in one place, without some type of check and balance system in place. 12:38:35 PM CHAIR LYNN said he would ensure that this issue is addressed when the House Judiciary Standing Committee hears the bill, as three of the legislators on the House State Affairs Standing Committee also serve on the House Judiciary Standing Committee, including himself. 12:39:04 PM REPRESENTATIVE JOHANSEN stated that as a member of the [House Administration Finance Subcommittee], he will track the fiscal notes for HB 281. 12:39:42 PM REPRESENTATIVE ROSES moved to report CSHB 281, Version 25- LS1115\M, Bullard, 1/18/08, as amended, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 281(STA) was reported out of the House State Affairs Standing Committee.
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