Legislature(2007 - 2008)BELTZ 211

01/22/2007 01:30 PM Senate JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ SB 19 EXEC. BRANCH ETHICS:INTERESTS & ACTIONS TELECONFERENCED
Heard & Held
*+ SB 20 LEGISLATIVE DISCLOSURES TELECONFERENCED
Heard & Held
*+ SB 13 BAN CONSULTING CONTRACTS WITH LEGISLATORS TELECONFERENCED
Heard & Held
         SB  19-EXEC. BRANCH ETHICS:INTERESTS & ACTIONS                                                                     
                                                                                                                                
CHAIR HOLLIS  FRENCH announced SB  19 to be up  for consideration                                                               
and asked  for a motion  to adopt Version M  committee substitute                                                               
(CS), labeled 25-LS0160\M.                                                                                                      
                                                                                                                                
1:35:02 PM                                                                                                                    
SENATOR CHARLIE HUGGINS so moved.  There being no objection, CSSB
19, Version M, was before the committee.                                                                                        
                                                                                                                                
CHAIR  FRENCH  explained that  the  bill,  relating to  executive                                                               
branch ethics, rewords  AS 39.52.110(b). The idea  is to prohibit                                                               
an  executive  branch employee  from  taking  official action  on                                                               
behalf of  his or  her personal  investments and  benefiting from                                                               
that action through  the use of their official  position. On page                                                               
2,  line  2, subparagraph  (C)(i)  through  (viii) lays  out  the                                                               
different  ways  an  employee would  be  prohibited  from  taking                                                               
official action.                                                                                                                
                                                                                                                                
Section 2 expands  the definition of "official  action" to better                                                               
capture executive  branch employees' day-to-day work  and clarify                                                               
that  the activities  mean  official action  with  respect to  an                                                               
investment the employee may have in an outside business.                                                                        
                                                                                                                                
1:37:47 PM                                                                                                                    
CHAIR FRENCH  related that  the current  subsection (a)  lays out                                                               
the general duty  of a public officer and the  new subsection (b)                                                               
lays out a  series of exceptions. The exception  in paragraph (1)                                                               
states that  if the  action or influence  is insignificant  or it                                                               
would  have a  conjectural effect,  then it  is not  a violation.                                                               
Chair  French  hypothesized  that an  executive  branch  employee                                                               
could own  and take  action on  $1 million  in IBM  stock without                                                               
violating the law because the  action would have an insignificant                                                               
or conjectural effect on the value of that stock.                                                                               
                                                                                                                                
Likewise, the  exception outlined  in paragraph (2)(A)  says that                                                               
if  the  public  officer's  personal  or  financial  interest  is                                                               
generally owned  by the  public, then  it is  not a  violation to                                                               
take  action on  that  investment. Thus,  a  public official  who                                                               
takes action  to increase the size  of his or her  Permanent Fund                                                               
dividend  would also  increase  the size  of  all other  dividend                                                               
recipients.  Similarly,  if a  public  officer  were to  take  an                                                               
action to  route the gas  pipeline close to  his or her  home, it                                                               
would effectively increase the value of  all homes in the area so                                                               
the action would not run afoul of the law.                                                                                      
                                                                                                                                
On page 2, line 1, paragraph  (2)(B) lays out an exception if the                                                               
public  officer's  personal   interest  is  insignificant.  Chair                                                               
French  noted that  definition is  probably not  perfect, but  it                                                               
would be difficult to do better.                                                                                                
                                                                                                                                
On page 2, line 2,  paragraph (2)(C) addresses financial interest                                                               
with  respect  to  a  business. He  noted  that  that  particular                                                               
section, which  has the subheadings  (i) through (viii)  has been                                                               
problematic in the past.                                                                                                        
                                                                                                                                
CHAIR FRENCH asked Mr. Jones to comment on the bill.                                                                            
                                                                                                                                
1:40:54 PM                                                                                                                    
DAVID   JONES,  Assistant   Attorney  General,   Civil  Division,                                                               
Department of  Law (DOL), said  he hadn't  seen Version M  so his                                                               
comments would be directed to the original bill.                                                                                
                                                                                                                                
MR.  JONES  expressed  concern   with  the  percentage  ownership                                                               
standard saying it could be  difficult to calculate a one percent                                                               
interest given  the variety of  stock classifications.  He argued                                                               
that, in  terms of ethics,  the significant interest  standard is                                                               
preferable. It won't  matter to the DOL or to  the public whether                                                               
the interest amounts  to one percent or 50  percent; what matters                                                               
is whether or not the  interest is significant. He suggested that                                                               
the  $5,000 standard  would  be  a better  measure  than the  one                                                               
percent ownership standard.                                                                                                     
                                                                                                                                
MR. JONES posed  the hypothetical situation of  funding a child's                                                               
lemonade  stand and  noted  that  because he  has  a 100  percent                                                               
interest in the  stand he would be prohibited  from taking action                                                               
to  benefit  that child's  business  even  though his  investment                                                               
might only have been $50. He  argued that it's not the percentage                                                               
ownership  that  matters  to  the public;  it's  whether  it's  a                                                               
significant interest and it seems  that the $5,000 standard would                                                               
be preferable, he said.                                                                                                         
                                                                                                                                
CHAIR  FRENCH asked  if  he had  language to  suggest  if he  was                                                               
proposing that  the standard  be listed  in something  other than                                                               
dollar terms.  He noted that  the significance standard  had been                                                               
removed in SB 19 because it  wasn't defined very well and created                                                               
problems two years ago.                                                                                                         
                                                                                                                                
MR. JONES  clarified that  he was suggesting  that a  flat dollar                                                               
measure is preferable to the  either or standard, which is either                                                               
a  dollar amount  or a  one percent  interest in  the value  of a                                                               
company.                                                                                                                        
                                                                                                                                
CHAIR FRENCH  used the  lemonade stand example  and asked  why it                                                               
would ever be valued at more than $5,000.                                                                                       
                                                                                                                                
MR. JONES replied it would not.                                                                                                 
                                                                                                                                
CHAIR  FRENCH  questioned how  someone  could  run afoul  of  the                                                               
statute if it was written as proposed.                                                                                          
                                                                                                                                
MR. JONES acknowledged  that there probably wouldn't  be stock in                                                               
a lemonade  stand, but if  a person owned a  controlling interest                                                               
in the  lemonade stand or more  than one percent of  the value of                                                               
the  stand, then  that would  seem to  run afoul  of subparagraph                                                               
(2)(B) and (2)(C)(i) and (ii), on page 2, lines through 19.                                                                     
                                                                                                                                
CHAIR FRENCH asked if his  concern could be addressed if language                                                               
was adopted  in sub-subparagraph  (i) on  page 2,  line 5  to say                                                               
that the controlling interest in  the business is worth more than                                                               
$10,000.                                                                                                                        
                                                                                                                                
MR. JONES  agreed that would make  sense, but he'd also  like the                                                               
reference  to  one  percent  interest   in  a  business  in  sub-                                                               
subparagraphs (ii)  and (iii) to  be deleted  so there is  just a                                                               
dollar standard.                                                                                                                
                                                                                                                                
CHAIR FRENCH  asked if it  is difficult to value  some businesses                                                               
and  relayed  that  he  was  reluctant to  simply  toss  out  the                                                               
percentage of ownership standard.                                                                                               
                                                                                                                                
MR. JONES theorized  that for some businesses  there would always                                                               
be some difficulty  in determining valuation. But  the process is                                                               
further complicated  if a percentage  valuation is  required. For                                                               
example, would  stock options  be included  or excluded  from the                                                               
percentage interest  calculation. Although it wouldn't  always be                                                               
simple, a flat dollar figure would always be simpler.                                                                           
                                                                                                                                
1:47:35 PM                                                                                                                    
SENATOR LESIL McGUIRE said the  concern she has with removing the                                                               
percentage relates  to options to  buy and to new  or speculative                                                               
companies where  the valuation  hasn't been  established. Someone                                                               
could  use his  or  her official  title to  steer  activity in  a                                                               
direction  to  gain  substantial  personal benefit,  but  not  be                                                               
measured by the $5,000 measure.                                                                                                 
                                                                                                                                
MR.  JONES acknowledged  that is  possible, but  the root  of the                                                               
trouble  is  substantiality and  using  the  one percent  measure                                                               
might not achieve  the goal. A flat dollar figure  is more likely                                                               
to achieve the goal, he said.                                                                                                   
                                                                                                                                
1:49:10 PM                                                                                                                    
CHAIR FRENCH  asked Mr.  Jones to send  proposed language  to his                                                               
office so the committee could make a reasoned decision.                                                                         
                                                                                                                                
MR. JONES agreed to suggest  language and further advised that he                                                               
would comment on the CS on Wednesday.                                                                                           
                                                                                                                                
1:50:16 PM                                                                                                                    
SENATOR  BILL WIELECHOWSKI  asked  whether his  comments were  on                                                               
behalf of the administration.                                                                                                   
                                                                                                                                
MR. JONES said yes.                                                                                                             
                                                                                                                                
SENATOR  WIELECHOWSKI asked  if the  administration supports  the                                                               
bill with the amendment he is suggesting.                                                                                       
                                                                                                                                
MR.  JONES  replied   he  is  not  authorized   to  indicate  the                                                               
Governor's position  on the  bill. He is  authorized to  speak on                                                               
the effects of the bill as well as any enforcement challenges.                                                                  
                                                                                                                                
1:51:13 PM                                                                                                                    
DON ROBERTS, a  Kodiak citizen, introduced himself  and said when                                                               
he  began preparing  his testimony  about ethics  he came  to the                                                               
conclusion  that this  is  more about  fairness  in the  decision                                                               
making  process   and  helping   legislators  and   others  avoid                                                               
conflict-of-interest   situations   that   are   likely   to   be                                                               
encountered.                                                                                                                    
                                                                                                                                
Having  done  advocacy  work  for  eight or  nine  years  he  has                                                               
determined  that the  whole system  is  unfair in  that a  single                                                               
person  can't be  heard  above the  din of  money  and power.  He                                                               
suggested  the  committee  look  at how  an  average  person  can                                                               
influence  legislation  before  the  law is  enacted  instead  of                                                               
finding out  about a new  law after  the fact. The  problem isn't                                                               
that legislators are  unethical; it's more that  they are unfair.                                                               
Finally,  he  asked  that  borough and  city  governments  to  be                                                               
included because there are problems at that level as well.                                                                      
                                                                                                                                
CHAIR FRENCH recognized the bill drafter.                                                                                       
                                                                                                                                
1:54:34 PM                                                                                                                    
DAN  WAYNE,  Legislative  Counsel, Legal  and  Research  Services                                                               
Division, Legislative Affairs Agency, introduced himself.                                                                       
                                                                                                                                
SENATOR  GENE THERRIAULT  referenced  page 2  and questioned  the                                                               
need for  the language in  subparagraph (B) because  the language                                                               
in subparagraphs (A) and (C) seems to encapsulate it all.                                                                       
                                                                                                                                
MR.  WAYNE responded  he  couldn't say.  Subparagraph  (B) has  a                                                               
function, but it might work without it.                                                                                         
                                                                                                                                
SENATOR  THERRIAULT  referenced  page  2, line  8  and  suggested                                                               
inserting  language  about "fair  market  value"  since the  term                                                               
"value" is somewhat subjective.                                                                                                 
                                                                                                                                
MR.  WAYNE  replied  any  term  relating  to  value  is  somewhat                                                               
subjective.  Using total  value leaves  it to  the person  who is                                                               
trying to  comply with the law  to make an interpretation  or get                                                               
an  opinion from  the Personnel  Board.  Then if  a complaint  is                                                               
lodged the Personnel  Board would make an  interpretation just as                                                               
it does for any subjective question.                                                                                            
                                                                                                                                
SENATOR THERRIAULT commented he would  like to screw that kind of                                                               
thing down as tightly as possible.                                                                                              
                                                                                                                                
He questioned  why page 2, line  14, shouldn't be any  officer in                                                               
the business  rather than  just an  elected officer.  Finally, he                                                               
noted  that page  2, line  5,  talks about  owning a  controlling                                                               
interest and  he would suggest  that that could be  subjective as                                                               
well.                                                                                                                           
                                                                                                                                
SENATOR THERRIAULT said he highlighted  those issues because some                                                               
needed  to  be  more  specific   and  another  needed  a  broader                                                               
interpretation.                                                                                                                 
                                                                                                                                
CHAIR  FRENCH asked  if he  was musing  or did  he have  specific                                                               
language to suggest.                                                                                                            
                                                                                                                                
SENATOR  THERRIAULT  said he  was  musing,  but he  believes  the                                                               
committee should  be more  specific in how  to place  value. Fair                                                               
market value  can be  tracked if the  company is  publicly traded                                                               
and assets of a business can  be appraised based on a fair market                                                               
valuation. With regard  to an elected officer, he  said it should                                                               
be any officer, elected or not.                                                                                                 
                                                                                                                                
CHAIR FRENCH questioned whether that  wouldn't be captured by the                                                               
language on page  2, line 19, which addresses an  employee of the                                                               
business.  He questioned  whether a  person could  be an  officer                                                               
without being an employee.                                                                                                      
                                                                                                                                
SENATOR THERRIAULT  replied an employee is  different and implies                                                               
remuneration  of  some sort.  Using  his  family business  as  an                                                               
example,  he  said  he  doesn't believe  that  "employee  of  the                                                               
business" would automatically sweep everyone in.                                                                                
                                                                                                                                
2:00:02 PM                                                                                                                    
SENATOR WIELECHOWSKI  advised that  the definition  of "business"                                                               
includes for profit and non-profit businesses.                                                                                  
                                                                                                                                
MR. WAYNE  noted that  that definition was  used in  drafting the                                                               
bill.                                                                                                                           
                                                                                                                                
CHAIR FRENCH  addressed Senator  Therriault's first  question and                                                               
read the  definition of  "personal interest"  into the  record to                                                               
demonstrate that it's a little broader than financial interest.                                                                 
                                                                                                                                
     Sec. 39.52.960.  Definitions.                                                                                              
          (18) "personal interest" means an interest held                                                                       
     or involvement  by a public  officer, or  the officer's                                                                    
     immediate   family   member    or   parent,   including                                                                    
     membership,  in  any organization,  whether  fraternal,                                                                    
     nonprofit, for  profit, charitable, or  political, from                                                                    
     which,  or   as  a  result   of  which,  a   person  or                                                                    
     organization receives a benefit;                                                                                           
                                                                                                                                
SENATOR THERRIAULT agreed.                                                                                                      
                                                                                                                                
2:01:42 PM                                                                                                                    
SENATOR WIELECHOWSKI added  that subparagraph (B) on page  2 is a                                                               
catch  all. The  other provisions  wouldn't necessarily  apply to                                                               
non-profits, but subparagraph (B) would capture them.                                                                           
                                                                                                                                
CHAIR  FRENCH  hypothesized that  a  Boys  and Girls  Club  board                                                               
member could drive  a state decision to steer money  to that club                                                               
and  said that  they aren't  deriving any  personal gain,  but it                                                               
still isn't right.                                                                                                              
                                                                                                                                
CHAIR FRENCH announced he would set  SB 19 aside and the proposed                                                               
amendments would be reviewed on Wednesday.                                                                                      

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