Legislature(2009 - 2010)CAPITOL 106
02/23/2010 08:00 AM House STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| HB291 | |
| HB289 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 291 | TELECONFERENCED | |
| *+ | HB 289 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 289-EXEC ETHICS: LEGAL FEES/FAMILY TRAVEL
8:50:06 AM
CHAIR LYNN announced the final order of business was HOUSE BILL
NO. 289, "An Act authorizing state agencies to pay private legal
fees and costs incurred by persons exonerated of alleged Alaska
Executive Branch Ethics Act violations; allowing certain public
officers and former public officers to accept state payments to
offset private legal fees and costs related to defending against
an Alaska Executive Branch Ethics Act complaint; and creating
certain exceptions to Alaska Executive Branch Ethics Act
limitations on the use of state resources to provide or pay for
transportation of spouses and children of the governor and the
lieutenant governor."
8:50:25 AM
REPRESENTATIVE P. WILSON moved to adopt the proposed committee
substitute (CS) for HB 289, Version 26-LS1304\C, Wayne, 2/22/10,
as a work draft.
REPRESENTATIVE SEATON objected for discussion purposes.
CHAIR LYNN stated his intent to work from Version C.
8:51:25 AM
REPRESENTATIVE SEATON removed his objection. There being no
further objection, Version C was before the committee.
8:51:39 AM
REPRESENTATIVE GRUENBERG, in explanation of the function of the
proposed legislation, paraphrased the first sentence of the
sponsor statement, which read as follows [original punctuation
provided]:
HB 289 sets forth in statute the substance of the
Attorney General's proposed regulations establishing
standards for (1) reimbursement of legal fees and
costs for any executive branch employees accused of
ethical violations, and (2) payment of travel expenses
for the families of only the governor and lieutenant
governor.
REPRESENTATIVE GRUENBERG said the reason he became involved with
HB 289 is that he believes these issues should be dealt with by
the legislative branch, not the executive branch - particularly
the attorney general, who is appointed by the governor and
determines whether the governor's family or people in his own
department can get reimbursed by the state for costs and fees
resulting from being charged with an ethics violation.
8:54:23 AM
CHAIR LYNN said, "So, this is basically to prevent the
appearance of conflict of interest."
REPRESENTATIVE GRUENBERG responded yes.
8:55:58 AM
REPRESENTATIVE GRUENBERG, regarding legal fees, said he was
concerned that there is language that could be interpreted as
allowing reimbursement even if a person was not exonerated, if
he/she simply paid the money back. He said he does not think it
is fair for someone who is guilty to get back his/her full
attorney's fees and costs. In response to a question from Chair
Lynn, Representative Gruenberg confirmed his intent is for only
those who have been exonerated to be reimbursed. He said the
term exonerated is defined on page 4, lines 12-18, of Version C.
REPRESENTATIVE GRUENBERG pointed out that there is a
recommendation for corrective action and one for preventative
action. He explained that corrective action is something that
would occur when a person has been found guilty, whereas
preventative action would be taken in a situation in which a
person was not found guilty, yet the situation should be avoided
in the future.
8:59:28 AM
REPRESENTATIVE GRUENBERG directed attention to page 4, line 4,
of Version C, which includes "former public officer". He said
he wanted to ensure that a former public officer cannot come
back much later and get his/her costs and fees. He then
directed attention to page 4, lines 26-28, of Version C, which
read as follows:
APPLICABILITY. AS 39.52.470, enacted by sec. 4 of
this Act, applies only to complaints under AS
39.52.310 - 39.52.390 that are initiated or filed on
or after the effective date of this Act.
9:00:40 AM
REPRESENTATIVE GRUENBERG said a third change that was
incorporated into Version C is in language on page 4, beginning
on line [19], which read as follows:
(2) "fees and costs of private legal
representation" means reasonable fees and related
costs of legal representation that are necessarily
incurred in defense against the allegations in the
complaint and may include fees for services
customarily performed by an attorney but delegated to
and performed by a person working under the
supervision of an attorney licensed to practice in the
state.
REPRESENTATIVE GRUENBERG explained that that would preclude
someone from attempting to get money for "a fishing expedition
or all kinds of things that aren't related to it." Furthermore,
the person would have to be reasonable from an attorney's point
of view.
9:02:28 AM
REPRESENTATIVE GRUENBERG said the fourth change incorporated
into Version C would make the process of making claims less
cumbersome. He said theoretically, a person could be paid money
and then found guilty, or something equivalent, and then the
agency would have to come back to recoup the money, and the
person could be judgment proof. He indicated that the change in
Version C would leave the application for costs and fees to the
end, so that it is done once with no recouping "or anything like
that." He explained that this change is the reason that Version
C is much shorter in length than the original bill version.
9:04:08 AM
REPRESENTATIVE P. WILSON asked for clarification regarding
recommendations for preventative action.
9:04:55 AM
JUDY BOCKMON, Assistant Attorney General/State Ethics Attorney,
Opinions, Appeals, & Ethics, Civil Division (Anchorage),
Department of Law, echoed Representative Gruenberg's previous
statement that corrective action recognizes that there has been
some sort of violation, while exoneration would include those
situations where there has been no violation, even if it was
decided that preventative action was necessary. She said an
example of preventative action may be to distance the employee
from "the situation," which would be done through the ethics
supervisor of the agency involved.
9:07:00 AM
REPRESENTATIVE SEATON asked if those actions that may have the
appearance of impropriety would be a violation or would "flow
under preventative action."
9:09:52 AM
MS. BOCKMON explained that when the department reviews Ethics
Act matters, it looks at the actual situation. She said there
is a regulation that states that the appearance of impropriety
is not a violation, so the department would not base a violation
on appearances alone. A decision is made as to whether there is
an actual violation or not.
9:11:39 AM
REPRESENTATIVE SEATON offered his understanding that there is a
statutory requirement not to have appearance of impropriety. He
stated, "I'm just wanting to get clarified that what we're
saying here is that if you are guilty of generating the
appearance of impropriety, the appearance of a conflict by the
executive officer's action, that that's going to be treated as
an exoneration or it will be treated as a recommendation for
preventative action."
9:12:35 AM
MS. BOCKMON reiterated that judgments are not made by
appearances. She said, "We encourage employees to step up and
report situations in which they might potentially violate the
Ethics Act." For example, someone might be assigned to review
grant proposals and see that the name on one of the submittals
is that of a family member. At that point, the reviewer should
stop, report the problem, and be removed from the situation. If
the reviewer continues his/her participation in the review of
the application submitted by the family member, that would be a
violation and there would be no exoneration. She concluded,
"It's hard to envision a situation where the result of the
investigation turns on just the appearance of the situation."
9:14:07 AM
REPRESENTATIVE PETERSEN offered a hypothetical example of an
executive who submits paperwork for reimbursement of travel
expenses for a family member who was not required to be on the
trip, but withdraws the submission when it is pointed out to
him/her that this was not something for which there should be
reimbursement. He asked if that is an example of preventative
action.
MS. BOCKMON indicated that the answer would depend upon whether
or not there had been an ethics complaint. If there had been an
ethics complaint, then the situation would involve corrective
action. Prior to there being a complaint, if the officer
submitted the request for reimbursement and then realized it was
inappropriate and took action to withdraw the request, that
would be viewed as a person "stepping up" to meet his/her
obligations, having recognized there was a problem. She said
that behavior should be encouraged.
9:17:38 AM
REPRESENTATIVE PETERSEN asked Ms. Bockmon to confirm that if the
aforementioned executive from the hypothetical example
voluntarily withdrew the request for reimbursement, then there
would be no violation.
MS. BOCKMON replied that she is uncertain that that would be the
ultimate conclusion. She explained, "We could say it's a
violation, but the person took appropriate action to correct the
situation and that addresses it absent there being a complaint
to follow through on."
REPRESENTATIVE SEATON requested a review of the sectional
analysis [included in the committee packet].
9:19:50 AM
REPRESENTATIVE GRUENBERG paraphrased the first part of the
sectional analysis, which read as follows [original punctuation
provided]:
Sec. 1. Deletes definition of "for partisan political
purposes." This definition section is moved to section
3 on page 3, lines 22-27.
REPRESENTATIVE GRUENBERG continued as follows:
It's permitted if ... the person who is transported
with the governor or lieutenant governor reimburses
the state for the actual cost or if the cost is not
reasonably calculable for the fair market value of the
person's transportation. Alternatively, if they are
not reimbursing the state, the standard is whether the
person's attendance is a benefit to the state. And
that is a ... general concept impossible to determine
with just a facile definition. So, what we give here
- and this is pretty much given from the regulations
this time - ... it's presumed. In other words, the
presumption is that it's okay, and the burden of proof
would shift to the prosecution, to the people who were
bringing the complaint, to show that it wasn't a
benefit to the state.
REPRESENTATIVE GRUENBERG said there are four situations in which
a person's attendance is considered a benefit to the state, and
they are listed in language on page 3, lines 12-21, of Version
C, [Section 3(g)(2)(A)-(D)], which read as follows:
(A) the person's attendance at the event is
required for official action of the state;
(B) the event is state-sponsored and the
person's attendance is customary;
(C) the person is attending as an official
representative of the state; or
(D) the person is invited by the event's
sponsor before the transportation occurs, the
invitation and the person's attendance are customary,
the event is related to issues important to the state,
and the governor or lieutenant governor attend.
9:23:19 AM
REPRESENTATIVE SEATON asked Representative Gruenberg for an
example of when a child or spouse would be required for official
action of the state.
REPRESENTATIVE GRUENBERG deferred to Ms. Bockmon.
CHAIR LYNN asked if there is an age range for "child".
REPRESENTATIVE GRUENBERG answered that it could be any child,
including an adult child. He deferred to Ms. Bockmon for
further comment.
9:24:17 AM
MS. BOCKMON, regarding Representative Seaton's question, said
there are a lot of situations in ethics that are not foreseen.
She said she cannot offer a concrete example; however, she
stated, "It seemed to us when we were drafting the regulations
that we should allow for this."
REPRESENTATIVE SEATON said he is not expressing opposition, but
he just does not understand when the state would require a
spouse or child of the governor for an official action of the
state.
9:25:45 AM
REPRESENTATIVE GRUENBERG said the language was included because
it was in regulation and "seemed like a reasonable proposal."
He recollected that when Lady Bird Johnson was in the White
House, she was in charge of certain highway beautification
projects.
CHAIR LYNN said he thinks many First Ladies have taken on causes
without being in an official capacity.
9:26:41 AM
REPRESENTATIVE PETERSEN said in some instances the governor and
lieutenant governor are invited to numerous ceremonial events,
and if they are invited to more than one event happening
simultaneously, they may need to assign a family member to go in
their stead.
9:27:21 AM
REPRESENTATIVE P. WILSON said it should be acceptable for the
governor's spouse to join him/her on a trip to a community in
Alaska, because that really pleases the public.
REPRESENTATIVE SEATON reiterated that he is not opposing the
language, but rather is trying to understand through example
what subparagraph (A) means. He asked if the language in
Section 3(g)(2)(A)-(C) [text provided previously] is addressing
travel independent of the lieutenant governor or governor.
REPRESENTATIVE GRUENBERG answered yes. He said subparagraph (D)
requires the attendance of the governor or lieutenant governor,
while subparagraphs (A)-(C) could include independent travel.
9:32:36 AM
REPRESENTATIVE GRUENBERG, in response to Chair Lynn, said the
bill language does not include parents, siblings, or in-laws of
the executive.
9:33:24 AM
REPRESENTATIVE SEATON asked Ms. Bockmon to address his
previously stated question regarding the meaning of "as an
official representative of the state," and he asked what it
would take to designate someone as such.
9:34:02 AM
MS. BOCKMON prefaced her answer by noting that trying to draft
standards to address this issue was difficult. She said the
desire was to draft language "that was narrow and related to
circumstances where there was an identifiable benefit to the
state to have the person there." She said the use of the word
"official" [in Section 3(g)(2)(C)] refers to a situation in
which the governor or lieutenant governor cannot attend a
function and designates his/her spouse, for example, to attend.
Furthermore, the term also applies to the context in which first
ladies and first gentlemen take on causes, such as education,
which are important to the state.
9:35:41 AM
REPRESENTATIVE GRUENBERG noted that there were two U.S.
Presidents - one a bachelor and the other a widower - who
depended on young relatives to represent them.
CHAIR LYNN asked if the proposed legislation would allow for a
similar situation in which a governor of Alaska did not have a
spouse and needed a relative to serve as a host.
9:37:29 AM
REPRESENTATIVE GRUENBERG answered no. He asked Ms. Bockmon if
she would have a problem with an amendment to include such a
possibility.
9:37:50 AM
MS. BOCKMON responded that that would be a policy choice for the
legislature. She said she would have no objection, assuming
there were no legal issues presented in the language of an
amendment. She said, "There are situations in which we as a
state and the citizens would expect there to be a host/hostess
situation perhaps, and it wouldn't be necessarily inappropriate
for the state to decide as a matter of policy that it would
cover such a person."
CHAIR LYNN suggested that that amendment could be considered in
the next committee of referral.
9:39:17 AM
REPRESENTATIVE SEATON asked if there would be some kind of
public declaration that someone is acting in the official
capacity [of the governor or lieutenant governor].
MS. BOCKMON said she does not believe that is what was
contemplated under the regulation. She stated, "These
situations are all so specific to the circumstances and ...
every time you think that you know what the range is, there's
something new." She said if someone is serving as an honorary
chair of a committee, she expects there would have been some
sort of declaration made, whereas in a situation where someone
is going to fill in for a governor unable to attend a function,
she assumes that would be the result of a decision made in the
governor's office.
9:41:26 AM
REPRESENTATIVE SEATON said he thinks the presumptions being made
should be clarified.
9:42:41 AM
REPRESENTATIVE GRUENBERG stated his intent as sponsor that "if
somebody's an official representative, there must be something
in the official records to do that." He asked Ms. Bockmon if
his stated intent would be sufficient or if there needs to be an
amendment.
MS. BOCKMON answered that there is always a record kept of
someone traveling; however, she recommended that the legislature
would need to clarify if it wanted a record of any declaration
that someone would be acting as an official representative.
REPRESENTATIVE GRUENBERG emphasized that that is his intent. He
opined that the best practice would be to put it in writing.
9:45:35 AM
REPRESENTATIVE P. WILSON warned that the terms "spouse" and
"child" have already been specified in subsection (g), so "we're
going to have to adjust it there also."
REPRESENTATIVE GRUENBERG responded that his intent is for an
amendment to be made to address that issue in the next committee
of referral. He asked Representative Seaton if he would be more
comfortable with the addition of a definition of "official
designation".
REPRESENTATIVE SEATON answered yes.
9:46:34 AM
REPRESENTATIVE P. WILSON reemphasized the need for clarity.
REPRESENTATIVE GRUENBERG offered to work on amendments to bring
back to the committee.
CHAIR LYNN said he thinks "that might be better." He explained
that he would like to amend the bill to be "as complete as
possible" before moving it out of committee. He opined that HB
289 is an important bill.
REPRESENTATIVE GRUENBERG said he would get input from the bill
drafter and Ms. Bockmon when working on the amendments.
CHAIR LYNN suggested that a memorandum could be required for
certain "special cases."
REPRESENTATIVE GRUENBERG said he thinks [appointments of
official representatives of the state] should at least be in
writing.
9:48:10 AM
REPRESENTATIVE SEATON directed attention to subparagraph (B) in
Section 3, which read:
(B) the event is state-sponsored and the person's
attendance is customary;
REPRESENTATIVE SEATON asked if that means a certain event or
would include a "similar" event.
CHAIR LYNN offered his understanding that customary means
something that has been done one or more times before.
9:49:36 AM
REPRESENTATIVE GRUENBERG indicated he thinks the language would
include similar events. He offered an example.
9:50:16 AM
REPRESENTATIVE SEATON concurred, and he recommended adding "at
similar events" to subparagraph (B).
9:50:33 AM
REPRESENTATIVE GRUENBERG invited more input from the committee,
and he said he could have the amendments ready by the next
committee meeting.
9:50:55 AM
CHAIR LYNN, after ascertaining there was no one else who wished
to testify, closed public testimony.
9:51:06 AM
CHAIR LYNN announced that HB 289 was held over.
| Document Name | Date/Time | Subjects |
|---|---|---|
| 01 HB0291A.pdf |
HSTA 2/23/2010 8:00:00 AM |
HB 291 |
| 02 HB 291 Vets Bonds Sponsor Statement.pdf |
HSTA 2/23/2010 8:00:00 AM |
HB 291 |
| 03 HB291 AHFC Vets Sec Analysis.pdf |
HSTA 2/23/2010 8:00:00 AM |
HB 291 |
| 04 Updated AHFC Vets Loan Activity.pdf |
HSTA 2/23/2010 8:00:00 AM |
|
| 05 HB291-DOR-AHFC-2-10-10.pdf |
HSTA 2/23/2010 8:00:00 AM |
HB 291 |
| 06 HB0291-1-1-011910-GOV-Y.pdf |
HSTA 2/23/2010 8:00:00 AM |
HB 291 |
| 01 HB 289 - Full Text.pdf |
HSTA 2/23/2010 8:00:00 AM HSTA 2/25/2010 8:00:00 AM |
HB 289 |
| 02 HB 289 Sponsor Statement.pdf |
HSTA 2/23/2010 8:00:00 AM HSTA 2/25/2010 8:00:00 AM |
HB 289 |
| 03 HB 289 Sectional.pdf |
HSTA 2/23/2010 8:00:00 AM HSTA 2/25/2010 8:00:00 AM |
HB 289 |
| 04 Proposed Reg Changes.pdf |
HSTA 2/23/2010 8:00:00 AM HSTA 2/25/2010 8:00:00 AM |
HB 289 |
| 05 Legal Opinion 2-12-10 - Exec Ethics.HB 289 pdf.pdf |
HSTA 2/23/2010 8:00:00 AM HSTA 2/25/2010 8:00:00 AM |
HB 289 |
| 01A CS for HB 289.pdf |
HSTA 2/23/2010 8:00:00 AM |
HB 289 |
| 01B Explanation of Changes HB 289.pdf |
HSTA 2/23/2010 8:00:00 AM |
HB 289 |
| 06 HB289-OOG-EO-2-19-10.pdf |
HSTA 2/23/2010 8:00:00 AM |
HB 289 |