Legislature(2011 - 2012)CAPITOL 106

01/25/2011 08:00 AM House STATE AFFAIRS


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ HB 21 SUICIDE PREVENTION COUNCIL MEMBERS TELECONFERENCED
Moved CSHB 21(STA) Out of Committee
*+ HB 14 EXEC ETHICS: LEGAL FEES/FAMILY TRAVEL TELECONFERENCED
Heard & Held
          HB  14-EXEC ETHICS: LEGAL FEES/FAMILY TRAVEL                                                                      
                                                                                                                                
8:42:42 AM                                                                                                                    
                                                                                                                                
CHAIR LYNN  announced that the  last order of business  was HOUSE                                                               
BILL NO.  14, "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."                                                                                          
                                                                                                                                
8:43:02 AM                                                                                                                    
                                                                                                                                
GRETCHEN  STAFT,  Staff,  Representative  Max  Gruenberg,  Alaska                                                               
State Legislature,  presented HB  14 on behalf  of Representative                                                               
Gruenberg, sponsor.   She stated that HB 14 would  put in statute                                                               
the   attorney  general's   proposed  regulations   [establishing                                                               
standards regarding  legal fees  resulting from  ethics violation                                                               
accusations and  payment of travel  expenses for families  of the                                                               
lieutenant  governor  and  governor].    She  said  the  proposed                                                               
legislation  would   address  "the  appearance   of  impropriety"                                                               
related to the executive branch creating its own regulations.                                                                   
                                                                                                                                
MS. STAFT offered a sectional analysis  of HB 14.  She noted that                                                               
on page  2, line 10, there  is a stylistic change  from "partisan                                                               
political  purposes" to  "partisan political  purpose".   Also in                                                               
Section  1,  the definition  of  partisan  political purposes  is                                                               
deleted from page 2, lines 14-23.   Ms. Staft pointed out that in                                                               
Section 2,  on page 2, line  25, there is a  change that conforms                                                               
with that in  Section 1, such that  "partisan political purposes"                                                               
is changed  to "partisan political  purpose".  Ms.  Staft related                                                               
that  Section  3  addresses  the  issue  of  resources  used  for                                                               
transporting  the spouse  or child  of a  governor or  lieutenant                                                               
governor.  She  said the attorney general defines a  "child" as a                                                               
minor, while HB 14 defines "child"  [on page 3, lines 7-10, which                                                               
read as follows]:                                                                                                               
                                                                                                                                
     a biological  child, an adoptive child,  or a stepchild                                                                    
     of the governor or lieutenant  governor and is under 19                                                                    
     years of  age or, without  regard to age,  is dependent                                                                    
     on  the  governor  or   lieutenant  governor  for  care                                                                    
     because of a physical or mental disability.                                                                                
                                                                                                                                
MS. STAFT stated that under HB  14, state resources could be used                                                               
by the governor  or lieutenant governor to pay  for family travel                                                               
in two  ways.  First,  the governor or lieutenant  governor could                                                               
travel  with the  family member  and  subsequently reimburse  the                                                               
state.   Second,  the governor  or lieutenant  governor would  be                                                               
able to use state funds  toward a family member's travel expenses                                                               
is that  travel expense is seen  to be; and if  the attendance of                                                               
the person is  of benefit to the state.   The situations in which                                                               
the latter  would be considered  are enumerated on page  3, lines                                                               
15-29.                                                                                                                          
                                                                                                                                
8:48:54 AM                                                                                                                    
                                                                                                                                
MS.  STAFT  directed attention  to  Section  4, regarding  ethics                                                               
violations, and said  under HB 14, the state  would be authorized                                                               
to  reimburse  a  state  employee who  was  recused  after  being                                                               
charged with  an ethics violation.   Currently the state  can pay                                                               
the ongoing  fees before  the employee is  exonerated.   She said                                                               
the sponsor  thinks that it  is a better  idea to wait  until the                                                               
person  is exonerated  before the  state puts  forth those  fees.                                                               
She said  the funds could only  be put forward by  a state agency                                                               
that  may  lawfully put  forth  that  payment.   Ms.  Staft  then                                                               
related   that   Section   4  also   contains   definitions   for                                                               
"exonerated"   and    "fees   and   costs   of    private   legal                                                               
representation", beginning  on page 4,  line 22, through  page 5,                                                               
line 3.  She  drew attention to Section 5, on  page 5, lines 6-8,                                                               
which shows that the bill, if adopted, would not be retroactive.                                                                
                                                                                                                                
8:51:57 AM                                                                                                                    
                                                                                                                                
MS. STAFT,  in response to a  question from Chair Lynn,  said she                                                               
does  not know  the cost  of an  ethics violation  for which  the                                                               
alleged offender is  later exonerated.  She offered  to find out,                                                               
but also deferred to Judy  Bockmon, an assistant attorney general                                                               
with the Department of Law.                                                                                                     
                                                                                                                                
8:53:16 AM                                                                                                                    
                                                                                                                                
MS. STAFT,  in response to  questions from  Representative Seaton                                                               
regarding   the   details   behind   exoneration,   offered   her                                                               
understanding that the  attorneys for the employee  would have to                                                               
keep  detailed records  of "hourly  expenditures on  each issue."                                                               
Therefore, if three  ethics claims were brought  against a person                                                               
and two  of those claims  were dismissed, then that  person could                                                               
recover whatever legal  fees and costs were incurred  as a result                                                               
of the two  exonerated claims brought against him/her.   She said                                                               
the  onus would  be  on the  employee and  his  legal council  to                                                               
identify the  purpose of  the fees  and to  show when  those fees                                                               
were incurred.                                                                                                                  
                                                                                                                                
REPRESENTATIVE SEATON said he does  not think the wording in bill                                                               
makes that clear.  He requested more details from the sponsor.                                                                  
                                                                                                                                
8:56:00 AM                                                                                                                    
                                                                                                                                
MS. STAFT,  in response to Chair  Lynn, said she is  not aware of                                                               
any discussion  having taken place  regarding the  possibility of                                                               
requiring  reimbursement  from  a   complainant  when  an  ethics                                                               
violation  claim does  not result  in an  ethics violation.   She                                                               
said she would ask the sponsor about that issue.                                                                                
                                                                                                                                
8:58:11 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KELLER  observed that  the bill  does not  seem to                                                               
address the issue  of excessive accusations, and he  asked if the                                                               
sponsor predicts  an increase in  accusations in the future.   He                                                               
explained  that he  is  curious  why the  bill  is being  brought                                                               
forward.  He directed attention to  page 4, beginning line 22, to                                                               
the definition  of "exonerated".   He  opined that  this sentence                                                               
seems to  give too much  power to  the courts to  give corrective                                                               
action that  would undo intent.   He said he would  like feedback                                                               
from the sponsor on that issue.                                                                                                 
                                                                                                                                
9:00:30 AM                                                                                                                    
                                                                                                                                
MS. STAFT  said she  will speak  to the sponsor  about that.   In                                                               
response to another question, she  offered her understanding that                                                               
the statutes  listed in the  bill are the  only ones tied  to the                                                               
proposed legislation.                                                                                                           
                                                                                                                                
9:01:42 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE P.  WILSON, regarding  the reimbursement  of "fair                                                               
market value  of the person's transportation",  observed that the                                                               
cost  of  a  seat  on  a commercial  airline  would  be  easy  to                                                               
calculate, while  it would  not cost any  more for  the governor,                                                               
for example,  to bring one  or two family  members with him  on a                                                               
state-owned plane.                                                                                                              
                                                                                                                                
CHAIR  LYNN added  that that  same idea  may apply  to travel  on                                                               
military aircraft to a military function.                                                                                       
                                                                                                                                
9:02:49 AM                                                                                                                    
                                                                                                                                
MS. STAFT offered her understanding  that such scenarios would be                                                               
covered under HB 14, and she  said she would confirm that for the                                                               
committee at a future meeting.                                                                                                  
                                                                                                                                
9:04:51 AM                                                                                                                    
                                                                                                                                
MS. STAFT, in response to  a question from Representative Keller,                                                               
confirmed that the  only regulatory change proposed  in Section 3                                                               
is the definition of child, and  that the purpose is to eliminate                                                               
the appearance of impropriety.                                                                                                  
                                                                                                                                
9:06:43 AM                                                                                                                    
                                                                                                                                
MS. STAFT, in  response to a question  from Representative Seaton                                                               
regarding the  term "necessarily  incurred" on  page 4,  line 31,                                                               
said there  would be an  inquiry into whether  a fee or  cost was                                                               
necessarily incurred.   She stated,  "The burden would be  on the                                                               
employee and  legal council  to prove  that, but  basically we're                                                               
looking at industry standards."                                                                                                 
                                                                                                                                
REPRESENTATIVE SEATON  requested the sponsor get  a legal opinion                                                               
to accompany the bill packet.                                                                                                   
                                                                                                                                
9:08:21 AM                                                                                                                    
                                                                                                                                
JUDY BOCKMON, Assistant Attorney  General, State Ethics Attorney,                                                               
Opinions,   Appeals,  &   Ethics,  Civil   Division  (Anchorage),                                                               
Department  of  Law  (DOL),  echoed  Ms.  Staft's  comments  that                                                               
currently  there  are  regulations  in place  regarding  the  two                                                               
topics covered  in HB 14.   She said  the difference is  that the                                                               
bill   addresses  statute,   whereas  regulations   are  "setting                                                               
standards  to  interpret  the  act."     Regarding  Chair  Lynn's                                                               
previous  query as  to  how much  money the  state  has spent  in                                                               
defending ethics complaints regarding  the governor, she said she                                                               
does not know.   She noted that former Governor  Sarah Palin "has                                                               
defended herself."  She said  there have not been other instances                                                               
where  council  has   been  hired  for  another   governor  or  a                                                               
lieutenant  governor or  other state  officer other  than in  one                                                               
circumstance in the last couple  years, and in that situation the                                                               
person was  not exonerated.   She  added that  the administration                                                               
has,   through   its   risk    management   system,   done   some                                                               
representation  of state  officers;  however,  she indicated  she                                                               
does not know if any of that was  done under the Ethics Act.  She                                                               
said  Governor  Palin's  situation  aside, during  the  last  ten                                                               
years,  "the number  of cases  in  which there  has been  defense                                                               
council ... has been relatively small."                                                                                         
                                                                                                                                
9:11:24 AM                                                                                                                    
                                                                                                                                
MS. BOCKMON, in response to  a prior question from Representative                                                               
Seaton  regarding  apportionment  of  a  claim,  said  regulation                                                               
requires  that the  public  officer  provide clear  documentation                                                               
that the  expenses were  limited to the  violation for  which the                                                               
officer  was   exonerated.    Regarding  the   term  "necessarily                                                               
incurred", she  said there  is a  practice of  review in  a court                                                               
system for attorneys' fees requests.  She continued as follows:                                                                 
                                                                                                                                
     In  addition   to  the  comment  regarding   ...  clear                                                                    
     evidence that  it relates to  the exonerated  claim, we                                                                    
     extended  our  regulation  on ...  reasonable  expenses                                                                    
     necessarily  incurred  ...  to  include  evaluation  of                                                                    
     complexity, the  rate charge,  the hours  extended, the                                                                    
     relationship between  the amount of work  performed and                                                                    
     the significance  of the claim,  and several  ... other                                                                    
     relevant factors depending on  the circumstance.  So, I                                                                    
     think that  ... what is certainly  contemplated is that                                                                    
     when  a  person  makes  a claim  for  reimbursement  or                                                                    
     payment of  their attorney's fees, the  request will be                                                                    
     examined for  reasonableness to ensure that  these were                                                                    
     necessarily   incurred   in   the   language   of   the                                                                    
     [regulations] and  the proposed  statute, and  that ...                                                                    
     if  it's a  situation where  there are  multiple claims                                                                    
     and there's a basis for  separating out claims on which                                                                    
     a   representative's  been   exonerated  from   perhaps                                                                    
     another violation, we'll be able to do so.                                                                                 
                                                                                                                                
9:13:55 AM                                                                                                                    
                                                                                                                                
MS. BOCKMON, regarding  Representative Keller's previous question                                                               
about corrective  action, referred  to the  language in  the bill                                                               
addressing dismissals  [in Section  4, subparagraph (A)]  and the                                                               
statutes  listed there.   She  indicated  that [AS  39.52.310(d)]                                                               
addresses  the initial  review  stage,  [AS 39.52.320]  addresses                                                               
dismissal for  finding no probable cause  after an investigation,                                                               
and [AS  39.52.370(d)] addresses  dismissal after  public hearing                                                               
by the  board.  She  mentioned [AS 39.52.370(f),  in subparagraph                                                               
(B),  which addresses  dismissals following  an appeal],  and [AS                                                               
39.52.330,  in subparagraph  (C), which  addresses an  allegation                                                               
"resolved solely  with a recommendation for  preventive action"].                                                               
Ms. Bockmon continued as follows:                                                                                               
                                                                                                                                
     And  so, the  definition  of exonerated  is intended  -                                                                    
     both   in  the   regulations   and  in   Representative                                                                    
     Gruenberg's bill - to cover  all of those situations in                                                                    
     which we  could ...  end up  with something  other than                                                                    
     simply  a  clean  dismissal  and   finding  of  no  ...                                                                    
     violation.    And  the contemplation  would  be  [that]                                                                    
     these  would not  be available  in any  situation where                                                                    
     the matter  was not cleanly  dismissed.  That is  if we                                                                    
     come to  terms to  settle on  some corrective  action -                                                                    
     which  is  what most  often  happens  when there  is  a                                                                    
     violation  -  that  would not  mean  exoneration,  even                                                                    
     though a person may not admit to a violation.                                                                              
                                                                                                                                
9:16:45 AM                                                                                                                    
                                                                                                                                
MS. BOCKMON, in  response to Chair Lynn, said  the department has                                                               
not looked at  [recovering fees from the complainant  if there is                                                               
an exoneration],  and she said  she did not  know if it  would be                                                               
possible to do so under current statute.                                                                                        
                                                                                                                                
9:18:21 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SEATON  recalled  a  past bill  that  proposed  a                                                               
$5,000 fine if a filed ethics  complaint was later dismissed.  He                                                               
stated that the issue is  whether the public would be discouraged                                                               
to  file  for  fear  of  a potential  huge  bill  if  the  ethics                                                               
complaint is found in favor of the defendant.                                                                                   
                                                                                                                                
9:19:54 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE PETERSEN pointed out that  in a situation in which                                                               
a person  or group  has filed  a complaint that  turns out  to be                                                               
valid, that  person or group has  often put forth a  lot of money                                                               
and is  not reimbursed.  He  said the bill does  not address that                                                               
issue.                                                                                                                          
                                                                                                                                
9:20:35 AM                                                                                                                    
                                                                                                                                
MS. BOCKMON, regarding  Representative Wilson's previous question                                                               
as  to travel  expenses for  family  members of  the governor  or                                                               
lieutenant governor, noted  that an opinion was  prepared in 2004                                                               
or 2005 that  suggested that it was inappropriate  for the person                                                               
involved to be  traveling on the state's aircraft  at the state's                                                               
expense  for   other  than   state  business.     She   said  the                                                               
consideration is of benefits, not just cost.                                                                                    
                                                                                                                                
9:22:43 AM                                                                                                                    
                                                                                                                                
CHAIR LYNN announced that HB 14 would be held over.                                                                             

Document Name Date/Time Subjects
01 HB0021A.pdf HSTA 1/25/2011 8:00:00 AM
HB 21
02 HB 21 Sponsor Statement Final.pdf HSTA 1/25/2011 8:00:00 AM
HB 21
03 HB021-DHSS-SPC-01-21-2011.pdf HSTA 1/25/2011 8:00:00 AM
HB 21
01 HB 14 A.pdf HSTA 1/25/2011 8:00:00 AM
HB 14
02 HB 14 Sponsor Statement.pdf HSTA 1/25/2011 8:00:00 AM
HB 14
03 HB 14 Legal Opinion - Exec. Ethics.pdf HSTA 1/25/2011 8:00:00 AM
HB 14
04 HB 14 Exec. Ethics - Relevant Regs (1).pdf HSTA 1/25/2011 8:00:00 AM
HB 14
05 HB 14 Sectional Analysis.pdf HSTA 1/25/2011 8:00:00 AM
HB 14
06 HB014-LAW-CIV-01-21-11.pdf HSTA 1/25/2011 8:00:00 AM
HB 14
01A CS for HB21 Version B.pdf HSTA 1/25/2011 8:00:00 AM
HB 21