Legislature(2011 - 2012)CAPITOL 106

02/01/2011 08:00 AM House STATE AFFAIRS


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ HJR 13 HONORING RONALD REAGAN TELECONFERENCED
Moved Out of Committee
+= HB 3 REQUIREMENTS FOR DRIVER'S LICENSE TELECONFERENCED
Moved CSHB 3(STA) Out of Committee
+= HB 14 EXEC ETHICS: LEGAL FEES/FAMILY TRAVEL TELECONFERENCED
Moved Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
          HB  14-EXEC ETHICS: LEGAL FEES/FAMILY TRAVEL                                                                      
                                                                                                                                
9:16:10 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."                                                                                          
                                                                                                                                
9:16:26 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG, as  sponsor, noted  that the  following                                                              
was  included  in  the committee  packet:    a  memorandum,  dated                                                              
January  31,  2011,  from  Dan  Wayne  of  Legislative  Legal  and                                                              
Research Services,  which discusses the terms  "apportionment" and                                                              
"necessarily incurred";  a technically updated  sponsor statement;                                                              
a sectional  analysis; and  a memorandum,  dated January  25 2011,                                                              
from Patricia  Young of Legislative  Legal and Research  Services,                                                              
which is  in regard  to state  payment of  legal fees  incurred in                                                              
defense of an ethics complaint against a public official.                                                                       
                                                                                                                                
REPRESENTATIVE GRUENBERG  reviewed that HB 14 is  similar to House                                                              
Bill  289 from  the  Twenty-Sixth Alaska  State  Legislature.   He                                                              
paraphrased  the  first  two paragraphs  of  the  revised  sponsor                                                              
statement,   which   read   as   follows   [original   punctuation                                                              
provided]:                                                                                                                      
                                                                                                                                
     House Bill 14 sets forth in statute the substance of                                                                       
     the Attorney General's recently-enacted 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.                                                                                                   
     HB  14 differs  from the  regulations  in two  important                                                                   
     ways.  First, although  both the regulations  and HB  14                                                                   
     authorize  the use  of  state funds  to  pay the  travel                                                                   
     costs  of  children  of  the   governor  and  lieutenant                                                                   
     governor to  certain events, HB 14 would  authorize this                                                                   
     payment  not  just  for minor  children,  but  also  for                                                                   
     mentally  and  physically   disabled  children  who  are                                                                   
     dependent  on the  governor or  lieutenant governor  for                                                                   
     care.1 Second,  the regulations  authorize the  state to                                                                   
     pay, in advance  of exoneration, the ongoing  legal fees                                                                   
     and  costs   of  an  employee   accused  of   an  ethics                                                                   
     violation.  If the  employee  is not  exonerated of  the                                                                   
     ethics charges,  the state  must then attempt  to recoup                                                                   
     the  funds it advanced  to defend  the guilty  employee.                                                                   
     HB  14,  on  the  other  hand,  would  require  that  an                                                                   
     employee   be   exonerated   before  the   state   could                                                                   
     reimburse the  employee for his or her fees  and costs.2                                                                   
     HB 14 cures both problems.                                                                                                 
                                                                                                                                
REPRESENTATIVE   GRUENBERG    noted   that   the    reference   to                                                              
"exonerated" is on page 4, lines 10-11.                                                                                         
                                                                                                                                
9:21:03 AM                                                                                                                    
                                                                                                                                
CHAIR LYNN closed public testimony.                                                                                             
                                                                                                                                
9:21:16 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SEATON   expressed  appreciation  for   the  legal                                                              
memorandum from Mr. Wayne.                                                                                                      
                                                                                                                                
9:21:33 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG,   in  response  to   Representative  P.                                                              
Wilson,  said  there  is  no provision  currently  in  statute  or                                                              
proposed in the  bill for recoupment by the state  from the person                                                              
who  filed   the  original   complaint  [if   the  complaint   was                                                              
unfounded].  He  cited a portion of Ms. Young's  memorandum, which                                                              
read as follows:                                                                                                                
                                                                                                                                
     The  Connecticut  law  further authorizes  that  if  the                                                                   
     complainant  brought  the  charge knowing  that  it  was                                                                   
     baseless,  the public  official or  state employee  will                                                                   
     have  a cause  of  action  against the  complainant  for                                                                   
     double the  amount of damage  caused.  If the  action is                                                                   
     successful,  the courts  may also  award the  individual                                                                   
     the  costs  and  reasonable   attorneys'  fees  for  the                                                                   
     action.                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  said he  thinks Alaska's reason  for not                                                              
adopting  such a  policy is  that  it could  dissuade people  with                                                              
legitimate  complaints from  coming forward.   He  said that  idea                                                              
may have merit,  but the Department of Law has  not suggested that                                                              
it is  needed, and  he decided not  to bring  that issue  into the                                                              
proposed legislation.                                                                                                           
                                                                                                                                
9:23:59 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE P.  WILSON expressed  her hope that  some provision                                                              
like that would prevent baseless accusations.                                                                                   
                                                                                                                                
REPRESENTATIVE GRUENBERG  said he thinks the concern  is that "the                                                              
net would  cast too  broadly."  In  response to Representative  P.                                                              
Wilson,  he   offered  to   contact  Ms.   Young  to   obtain  the                                                              
Connecticut law.                                                                                                                
                                                                                                                                
REPRESENTATIVE  P. WILSON  said  she thinks  that  would be  worth                                                              
looking into.                                                                                                                   
                                                                                                                                
9:25:53 AM                                                                                                                    
                                                                                                                                
CHAIR  LYNN  suggested  it would  be  problematic  to  distinguish                                                              
which complaint is and is not frivolous.                                                                                        
                                                                                                                                
REPRESENTATIVE P. WILSON  said that is why she would  like to have                                                              
the Connecticut law before the committee.                                                                                       
                                                                                                                                
9:26:27 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  PETERSEN  expressed  concern that  Alaskans  would                                                              
see this as a  way to caution against complaining,  and he said he                                                              
does not think that is the right direction to be headed.                                                                        
                                                                                                                                
9:27:41 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG  noted   that  the  issue  of  vexatious                                                              
litigants  has occupied  the attention  of the  court for  a small                                                              
number  of litigants  who  take  up an  inordinate  amount of  the                                                              
court's time.   In  some cases,  the court  has required  a person                                                              
who  submits complaints  repeatedly  to first  get court  approval                                                              
before  his/her  complaint  is heard.    Representative  Gruenberg                                                              
said that  is not done "in  this area," because the  person brings                                                              
the  matter   to  the  attention   of  the  government,   and  the                                                              
government decides which cases merit attention.                                                                                 
                                                                                                                                
9:30:07 AM                                                                                                                    
                                                                                                                                
JUDY BOCKMON,  Assistant Attorney  General/State Ethics  Attorney,                                                              
Opinions,   Appeals,  &   Ethics,   Civil  Division   (Anchorage),                                                              
Department  of Law,  stated that  she  thinks that  Representative                                                              
Gruenberg has  "fairly summarized the  posture that we're  in with                                                              
ethics  complaints."   She added  that  in statute  there are  two                                                              
layers  of  review prior  to  the  probable  cause finding:    the                                                              
intake review to  see that the complaints meet  the requirement of                                                              
statute   and  warrant   investigation;   and   the  more   formal                                                              
investigation  which   leads  to  probable  cause   and  a  public                                                              
accusation and hearing, which rarely happens.                                                                                   
                                                                                                                                
REPRESENTATIVE P.  WILSON asked Ms. Bockmon what  the effect would                                                              
be if  Alaska adopted a  law such as  Connecticut's.   In response                                                              
to  Chair  Lynn,  she  confirmed  that  she  was  asking  about  a                                                              
possible law  that would pertain  to the administrative  branch of                                                              
Alaska's government.                                                                                                            
                                                                                                                                
MS. BOCKMON  responded that  she is not  sure it would  change how                                                              
the state  treats a complaint or  the levels of review  or process                                                              
of  investigation.   She echoed  the concern  expressed by  others                                                              
that such a law  may dissuade members of the  public from bringing                                                              
forward  complaints.   She asked  the  committee to  keep in  mind                                                              
that the complaints  that are brought forth are not  always of the                                                              
nature that  have been seen  in the last  couple years;  there are                                                              
complaints that state  employees might wish to  bring because they                                                              
see what they believe  to be improper action.   She indicated that                                                              
a  law, such  as  the  aforementioned  Connecticut law  could  add                                                              
process,  but not  necessarily for  the  Department of  Law.   She                                                              
explained that  it seems that what  is being contemplated  is that                                                              
the  subject [of  an ethics  complaint, who  is knowingly  wrongly                                                              
accused,] would  later have  to take action  to recover  the fees,                                                              
and she said she does not know "how that would work."                                                                           
                                                                                                                                
9:34:23 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  JOHANSEN concurred  with Representative  Gruenberg                                                              
that this is  a larger issue, and  he suggested that the  topic of                                                              
curtailing  frivolous litigation  in,  for example,  the areas  of                                                              
resource  extraction and  economic development  could be  taken up                                                              
another  time, while  not  [dissuading  the public  regarding  the                                                              
issue of ethics complaints].                                                                                                    
                                                                                                                                
9:35:14 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  noted that in the civil  litigation, the                                                              
recovery of costs  and fees is under  Civil Rules 79 and  82.  The                                                              
general rule  is that the prevailing  party recovers its  costs in                                                              
full  and  its fees  on  a  sliding  scale.   He  offered  further                                                              
details.                                                                                                                        
                                                                                                                                
9:38:13 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SEATON  expressed  concern that  [making  citizens                                                              
pay for  a complaint that  is later found  untrue] means  that the                                                              
legislature would  be requiring  them to know  the outcome  of the                                                              
case  before  they  even  file a  complaint,  and  that  would  be                                                              
"chilling."  He said he thinks HB 14 is a good bill.                                                                            
                                                                                                                                
9:40:28 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  PETERSEN moved to  report HB  14 out of  committee                                                              
with  individual  recommendations   and  the  accompanying  fiscal                                                              
notes.  There  being no objection,  HB 14 was reported  out of the                                                              
House State Affairs Standing Committee.                                                                                         

Document Name Date/Time Subjects
05 DOL memo-constitutionality of HB 3.pdf HSTA 2/1/2011 8:00:00 AM
SSTA 4/11/2012 9:00:00 AM
SSTA 4/12/2012 9:00:00 AM
HB 3
06 HB 3 - 26 States with Length of Authorized Stay Requirement.pdf HSTA 2/1/2011 8:00:00 AM
SSTA 4/11/2012 9:00:00 AM
SSTA 4/12/2012 9:00:00 AM
HB 3
07 Lynn Amendment E.3 to HB 3.pdf HSTA 2/1/2011 8:00:00 AM
HB 3
01 HJR 13 Version A.pdf HSTA 2/1/2011 8:00:00 AM
02 HJR 13 Sponsor Statement.pdf HSTA 2/1/2011 8:00:00 AM