Legislature(2007 - 2008)BELTZ 211
03/12/2007 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB13 | |
| SB64 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 13 | TELECONFERENCED | |
| += | SB 64 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 64- DISCLOSURES & ETHICS
1:59:02 PM
CHAIR FRENCH announced the consideration of SB 64 and asked for
a motion to adopt Version \E committee substitute.
SENATOR HUGGINS motioned to adopt CSSB 64, labeled 25-GS1059\E,
as the working document.
CHAIR FRENCH provided an overview of the bill as follows:
Section 1 requires electronic filing for campaigns - for
governor now, for initiatives now, and for legislators beginning
in May 2009.
Section 2 requires electronic filing for legislative financial
disclosures beginning in July 2008.
Section 3 brings the disclosure level for public employees down
to the same $1,000 level as for legislators.
Section 4 requires electronic filing for executive branch
financial disclosures beginning in July 2007.
Section 5 adds five boards of directors to the list of
individuals who must file disclosures.
Section 6 deals with the presumption with respect to gifts given
by a lobbyist to an executive branch employee.
2:00:58 PM
CHAIR FRENCH noted that Mr. Jones and Ms. Miles are available to
answer questions.
CHAIR FRENCH asked Mr. Jones to explain what Section 6(a) does
and the distinctions it draws.
DAVID JONES, Assistant Attorney General, Department of Law,
explained that subsection (a) "would establish a presumption
that any gift from a lobbyist is intended to influence the
official duties, actions, or judgment of the executive branch
official receiving the gift or that official's immediate family
member." There is an exception if the person receiving the gift
is an immediate family member of the lobbyist. That exception
was established to avoid prohibiting a lobbyist from giving a
gift to a family member who happens to also be a member of the
executive branch.
Currently the rule is that a gift to an executive branch member
is prohibited if it would be reasonable to infer that the gift
is intended to influence performance of official duties,
actions, or judgment. Because it is not a clear bright-line
test, the current statute also requires that executive branch
members report any gift that exceeds $150 in value if the gift
was given as a result of the executive branch member's official
position or if that executive branch member has the authority to
take official action affecting the gift giver.
The governor's proposal for lobbyists is to establish a
presumption that any gift given to an executive branch member is
intended to influence that executive branch member. Because it
is a presumption it allows designated ethics supervisors to
grant exceptions where circumstances indicate that a reasonable
person could not infer that the gift is intended to influence
official judgment.
SENATOR THERRIAULT asked which kind of lobbyist is swept in
under the definition in AS 24.45.041. He suggested that the
public is probably more concerned about fulltime contract
lobbyists.
MR. JONES replied this would apply to both fulltime professional
lobbyists and the representational lobbyists because they are
required to register with the Alaska Public Offices Commission
(APOC). Although volunteer lobbyists may register, it is not a
requirement so this would not apply. Under the current wording
the provision applies only to lobbyists who are required to
register.
SENATOR THERRIAULT asked about the difference between a
volunteer lobbyist and a representational lobbyist.
MR. JONES said he believes that the distinction is that
volunteers represent entities as lobbyists only in public
meetings. Representational lobbyists can meet one-on-one with
legislators outside the realm of public meetings.
2:07:58 PM
CHAIR FRENCH asked Ms. Miles if she agrees with the previous
interpretation.
BROOKE MILES, Executive Director, Alaska Public Offices
Commission (APOC) explained that contract lobbyists are paid
professionals who are required to register before engaging in
lobbying activities. Another type of professional lobbyist
includes individuals for whom lobbying is only a part of what
they do for an employer. They are only required to register if
they spend more than 10 hours in any 30 day period lobbying. A
representational lobbyist is an individual who does not receive
salary and does not receive a fee, but whose expenses are paid
for in whole or in part by the entity that she/he is
representing as a lobbyist. Those individuals are required to
register, but they are not required to submit lobbyist reports.
Finally, the volunteer lobbyist is an individual who represents
him or herself to the legislature and is not paid by anyone else
and is not subject to the reporting and other lobbying
restrictions regarding political activities.
CHAIR FRENCH recapped that contract lobbyists and
representational lobbyists both are required to register under
AS 24.45.041. Volunteer lobbyists are not required to register
under that statute.
CHAIR FRENCH mentioned the de minimis rule and the idea that
some gifts or gratuities are so small that they are unworthy of
consideration. Examples include borrowing someone's cell phone
when the plane lands in Sitka rather than Juneau, sharing a cab
ride to downtown Juneau when the plane arrives at midnight,
giving someone a magazine after reading it, or buying someone a
cup of coffee. He questioned whether there shouldn't be a level
below which it isn't worth worrying about.
MR. JONES replied he believes there are instances in which it
would not be reasonable to assume that the gift is intended to
influence. That is the advantage of a presumption rather than a
bright-line rule, he said. The difficulty is that the executive
branch member would need to report the small gratuity and get a
ruling from the designated ethics supervisor.
"On the other hand if we create a bright line de minimis test -
say $5, $10 - how is the public going to feel when every time a
lobbyist wants to talk to me a lobbyist pulls me aside and takes
me out to Starbucks and buys me a $5 or $10 cup of coffee?" He
questioned whether that would enhance the public's confidence in
the executive branch and said that is the reason for using the
presumption. Although it could be a difficulty for anyone who
commonly receives small gratuities from lobbyists, it's more
important to enhance the public's faith in the integrity of
public officials.
CHAIR FRENCH asked if anyone would be the wiser if a report
isn't made - either under the current law or as proposed here.
MR. JONES agreed no one would know.
CHAIR FRENCH said he is trying to be alert to possible
harassment of executive branch employees because of what he
perceives to be de minimis exchanges of social interaction
rather than attempts to curry favor. He conceded that there is
merit in erring on the side of caution.
2:14:53 PM
MR. JONES provided a personal example of sharing a cab with a
lobbyist to demonstrate that he always exercises caution and
pays his own way.
SENATOR McGUIRE used a hypothetical example of a baby shower for
the wife of a deputy commissioner who receives a gift from the
wife of a lobbyist. She asked how that would work.
MR. JONES clarified that the provision addresses gifts from
someone who is required to register as a lobbyist; it does not
apply to gifts from an immediate family member of a lobbyist.
The reference to an immediate family member is "to an immediate
family member of the person receiving the gift." The other
reference to immediate family members is the exception when the
lobbyist is an immediate family member of the person receiving
the gift.
MR. JONES posed a hypothetical example in which the lobbyist
gives the baby shower gift. In most circumstances it would be
unreasonable to infer that the intent of the gift is to
influence official action, he stated. "So the person receiving
the gift reports it or if the person receiving it is an
immediate family member of the executive branch member, that
member reports it and gets an approval from the designated
supervisor and it's covered."
2:18:51 PM
CHAIR FRENCH recapped that the proposed rules would require an
executive branch member to report, refuse, or seek an opinion
before receiving a gift from a lobbyist.
MR. JONES agreed.
CHAIR FRENCH questioned why the president of Company X could buy
a cup of coffee for an executive branch member without the
public coming to the same conclusion that it is intended to
influence action. Why pick on lobbyists, he asked.
MR. JONES replied it's recognition of reality. Lobbyists are in
the business of influencing administrative or legislative
action. Unless circumstances indicate otherwise, the presumption
is that they are doing what they are doing as part of their job.
CHAIR FRENCH suggested that the public would come to the same
conclusion about the president of Company X when he/she is
handing out cups of coffee at the airport.
MR. JONES said in circumstances where it's clear that the intent
is to influence official action, the executive branch official
should simply decline the gift regardless of value.
2:21:47 PM
CHAIR FRENCH highlighted the opinions issued regarding the
previous administration's use of the jet and asked Mr. Jones if
the problem stems from the law not being written tightly enough
or from the former governor's interpretation of how the
executive branch can use state equipment.
MR. JONES expressed the view that the law doesn't need to be
tightened. With regard to the second question he said "I don't
want to prejudge a case that may or may not come to us in the
attorney general's office."
CHAIR FRENCH asked him not to misunderstand the question; he was
not leading him in that direction. Referencing AS
39.52.120(a)(6) he asked where the 50 percent rule comes in.
That is the statute that prohibits the use of state equipment
for partisan political purposes.
MR. JONES said there isn't a 50 percent rule; he suspects the
reference is to the primary purpose rule that he applied in his
2006 opinion.
CHAIR FRENCH asked him to explain how the two intersect.
MR. JONES said he doesn't think a percentage-based standard
works in terms of determining the purpose of a trip. For
example, as a lawyer he might go to Fairbanks for the primary
purpose of attending a ten minute hearing. While he's in
Fairbanks he might also go to the university or the museum so
there is a personal benefit, but the primary purpose of the trip
is the ten minute court hearing. He acknowledged that writing
the analysis in the 2006 opinion was difficult. It reads in
part:
It is important to apply careful judgment in
determining the primary purpose of a trip.
Indiscriminant use of state aircraft for trips
combining official duties and partisan political
activities will risk both violating the Ethics Act,
and inviting public criticism.
He suggested that in some ways the main point of the opinion may
have been lost. The question was whether it is okay to use state
aircraft for partisan political purposes. The answer is no, but
an official could engage in partisan political activities as a
subsidiary activity if the trip truly is for state business.
2:27:32 PM
CHAIR FRENCH suggested that the committee would need to give
that careful consideration because he isn't sure the public
would make a meaningful distinction.
CHAIR FRENCH highlighted how difficult it is for legislators to
keep their personal and political lives out of the capitol
building and so he questions whether the same de minimis
standard shouldn't apply here for the governor.
MR. JONES responded there is a de minimis rule in the Ethics Act
for executive branch members other than the governor and
lieutenant governor. In part, AS 39.52.120(d) reads as follows:
(d) ... A public officer other than the governor
and lieutenant governor who, during the work days,
engages in political campaign activities other than
minor, inconsequential, and unavoidable campaign
activities shall take approved leave for the period of
campaigning.
This does not apply to the governor or the lieutenant governor
because they aren't under the same leave system as other
executive branch officials. Everything they do is presumed to be
related to their official duties.
2:31:05 PM
SENATOR THERRIAULT recapped that other executive branch members
have the ability to make a clear distinction between official
and other activity. But the governor is in the same situation as
legislators. There is no leave-bank to draw from to take a half
day off.
MR. JONES pointed out that even though he has the ability to
take personal leave to participate in partisan political
politics on that hypothetical Fairbanks trip, the primary
purpose of his trip did not change. He was there on state duty
to attend the court hearing.
CHAIR FRENCH conceded there may not be a way to establish a rule
that separates the different hats a governor wears. But he
questions how the people would recapture that lost value when a
state resource is used to do politicking when it was done at
state treasury expense.
MR. JONES explained that in those circumstances APOC has
indicated that the campaign should pay for the portion that is
attributable to the political activity at a commercially
reasonable rate within a commercially reasonable time.
CHAIR FRENCH asked him to speak to the value question because
the commercially reasonable rate for even a first-class
commercial ticket doesn't begin to compare in value to a ride in
the state jet or a private corporate jet.
MR. JONES said there the two ways of analyzing costs. One way is
the cost to the state and the other is the benefit to the
recipient. Under the first method it makes sense to look at the
actual cost of supplying the jet. The other method - the benefit
to the recipient - looks at the alternatives and asks what
benefit the campaign avoided incurring because the governor was
flying on state aircraft.
CHAIR FRENCH asked which definition is currently used.
MR. JONES replied the current method is based on the benefit to
the recipient and so it's based on what the alternative would
have cost.
2:36:14 PM
MR. JONES referenced the opinion he wrote and the considerations
that went into the conclusion and reminded the committee that
the rules in the Ethics Act apply from the top to the bottom. He
emphasized the importance of applying rules that will apply
across the board because a decision to be harsh with the
governor has implications on others.
CHAIR FRENCH asked if the document that is stamped
"confidential" has had confidentiality waived.
MR. JONES clarified that the former administration waived
confidentiality right away on his 2006 opinion. In that opinion
he referred to a 2004 opinion on the use of the state's aircraft
and just last week the Palin Administration waived
confidentiality for that.
2:38:06 PM
SENATOR THERRIAULT asked about the chair's comment about whether
it is appropriate to fly on a corporate jet and asked if he was
referring to trips such as the recent tour of the Southeast
Alaska Intertie Project.
CHAIR FRENCH said no. He was thinking about an apple to apple
comparison of candidates who are made a gift of travel or
invited to travel on corporate jets going from campaign spot to
campaign spot. Compare that with a governor using a state
aircraft to go from campaign spot to campaign spot. "I don't
think either one's acceptable. They should both be reported the
same and the monetary value of each should be reported - or paid
back if it's a state aircraft - so that it's fair."
SENATOR THERRIAULT responded if he were to do that as an elected
official it would have to be for a legislative purpose and it
would have to be disclosed. He asked if he is referring to a new
candidate.
SENATOR FRENCH said he's referring to campaigning. A person
could be running for reelection and going out to tour the Pebble
Mine, for example. That is a legislative purpose and it's fair.
However if someone is flying you in a personal jet from one city
to another for campaign purposes then that full value should be
reported.
SENATOR THERRIAULT said as an elected official he is prohibited
from taking that benefit. It is a gift with no legislative
purpose and if he is in an election cycle that would be a
disallowed corporate contribution.
CHAIR FRENCH agreed and said he is simply bringing up examples
of things that sometimes occur.
SENATOR McGUIRE said she didn't know if the current
administration intends to continue the policy of benefit to the
recipient, but there are other ways of evaluating corporate jet
travel.
MR. JONES responded he did not know if the current
administration would continue on that basis, which has been the
practice for many years.
MR. JONES said that another way of dealing with cost allocation
when the governor goes someplace to conduct state business and
also has a campaign activity to conduct would be to require two
trips - one on state aircraft and one on commercial. That, to
some extent, would limit the governor's availability to perform
other state duties so there would be some cost to the state.
MR. JONES said the point is to bring people back to a level
playing field so that there isn't a benefit to the person from
using state resources for partisan political activities.
Although that is particularly true with respect to the governor,
the governor's interests do diverge somewhat from the rest of
the executive branch. Sometimes there may be security reasons or
requirements for the governor to take state aircraft or to use
state vehicles that would not apply to other executive branch
officials.
2:44:18 PM
SENATOR McGUIRE mentioned the recent memo from the governor and
expressed the view that the chair responded appropriately.
Quality is important when crafting these policies, she said, and
the process can't be rushed. Also, she believes that the
governor will do a good job of thinking through how she wants to
craft new policies in the future that may not be represented in
this bill today.
SENATOR McGUIRE said on the issue of state jet travel she
believes that the practicality issue is compelling for using a
percentage approach.
2:46:47 PM
SENATOR HUGGINS asked if the National Guard Helicopter that is
operating under Title 10 should be considered.
MR. JONES said he would need additional time to think that over,
but presumably the governor would only use a National Guard
helicopter for state business.
SENATOR HUGGINS added that when the helicopter is operating
under Title 10 it is federal and otherwise it is state property.
SENATOR THERRIAULT asked Mr. Jones to comment on his amendment
from last week and whether it might be added to SB 64. The idea
is that a person who is convicted of a felony ethics breach
would lose his/her governmental contributions to their pension
from the date of the bad act.
2:49:06 PM
MR. JONES said he hadn't discussed that with the legislative
director. He conceded that would be difficult to argue with the
principle, but there could be difficulties associated with the
details.
CHAIR FRENCH asked if he had an amendment to offer today.
SENATOR THERRIAULT replied the language he has is not drafted to
the committee substitute for SB 64.
CHAIR FRENCH announced that he would carry SB 64 over to the
next hearing. That would give members time to review the new
packet and bring forward other provisions.
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