Legislature(2011 - 2012)CAPITOL 106
01/25/2011 08:00 AM House STATE AFFAIRS
Audio | Topic |
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Start | |
HB21 | |
HB14 | |
Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
*+ | HB 21 | TELECONFERENCED | |
*+ | HB 14 | TELECONFERENCED | |
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 |