Legislature(2007 - 2008)BELTZ 211
03/14/2007 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB64 | |
| SB78 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 78 | TELECONFERENCED | |
| += | SB 89 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 64 | ||
SB 64- DISCLOSURES & ETHICS
1:38:09 PM
CHAIR FRENCH announced the consideration of SB 64, Version \E
committee substitute (CS).
CHAIR FRENCH motioned to adopt Amendment 1, labeled 25-
GS1059\E.5, and Senator Huggins objected for discussion
purposes.
A M E N D M E N T 1
OFFERED IN THE SENATE BY SENATOR FRENCH
TO: CSSB 64(JUD), Draft Version "E"
Page 1, line 1, following "Act":
Insert "relating to bribery, receiving a bribe,
and receiving unlawful gratuities;"
Page 1, following line 9:
Insert a new bill section to read:
"* Section 1. AS 11.56.130 is amended to read:
Sec. 11.56.130. Definition. In AS 11.56.100 -
11.56.130, "benefit" has the meaning ascribed to it in
AS 11.81.900 but does not include
(1) political campaign contributions
reported in accordance with AS 15.13 unless the
contribution is made or received in exchange for an
agreement to alter an elected official's or
candidate's vote or position on a state administrative
matter or a legislative or municipal matter;
(2) concurrence in official action in the
cause of legitimate compromise between public
servants; or
(3) support, including a vote, solicited by
a public servant or offered by any person in an
election."
Page 1, line 10:
Delete "Section 1"
Insert "Sec. 2"
Renumber the following bill sections accordingly.
Page 5, following line 10:
Insert a new bill section to read:
"* Sec. 8. The uncodified law of the State of
Alaska is amended by adding a new section to read:
APPLICABILITY. Section 1 of this Act applies to
offenses occurring on or after the effective date of
section 1 of this Act."
Renumber the following bill sections accordingly.
Page 5, line 11:
Delete "Section 2"
Insert "Section 3"
Page 5, line 12:
Delete "Section 4"
Insert "Section 5"
Page 5, line 13:
Delete "secs. 7 and 8"
Insert "secs. 9 and 10"
CHAIR FRENCH explained that Amendment 1 intends to close a
loophole that came to light with a legislative legal opinion
that said that it is not against the law for a candidate to
receive a bribe in the form of a campaign contribution. The idea
behind the amendment is that the quid pro quo of a contribution
in exchange for a promise of an agreement to alter a position on
an administrative, legislative, or municipal matter is
precluded.
1:41:48 PM
SENATOR McGUIRE arrived.
1:42:59 PM
SENATOR THERRIAULT, noting that the crime of bribery did and
still does exists, asked if this addresses only a change in
position or also the situation of a contribution that is
accompanied by a wink and nod to continue to maintain a
particular position. Stating that he would show the door to the
person either way, he questioned whether the latter is any less
a bribe.
CHAIR FRENCH replied it's important for the public to know that
most ethical candidates take the position that they were elected
because of their good judgment and ability to be fair and not
because they promised to do something in the future.
SENATOR HUGGINS commented that it also talks about the other
person's intent.
CHAIR FRENCH explained that someone could give a contribution
with the intent to effect a change in position, but for the loop
to close the promise must come back in exchange.
SENATOR HUGGINS focused on the words "contribution is made or
received" and said "it appears that you're being held
accountable for somebody else's conduct, potentially, versus
your own."
CHAIR FRENCH, agreeing that both parties would be equally
culpable, said he wouldn't dispute that there will always be
proof problems.
1:46:59 PM
SENATOR McGUIRE summarized that this wouldn't apply unless it
could be proved that there was intent to alter an elected
official's position in exchange for a contribution.
CHAIR FRENCH added that it's the agreement that protects
candidates and elected officials from false charges and false
accusations.
1:48:26 PM
SENATOR WIELECHOWSKI proposed the committee expand on the word
"alter" on line 11 to address situations such as, "Keep this
position and I'll give you $500."
SENATOR THERRIAULT questioned whether receiving money to switch
a position is any different from receiving money to maintain a
position.
CHAIR FRENCH urged caution. Because most elected officials state
emphatic support for something or someone at one time or
another, he suggested that could be far more problematic. He
reminded the committee that the essence of bribery is changing
your mind or buying your influence in a corrupt way that didn't
already exist.
SENATOR THERRIAULT asked if the exception in the statutes allows
bad acts.
CHAIR FRENCH said that under current statute he believes it is
perfectly legal for someone to say "I can gather up $20,000 in
campaign contributions if you promise me you'll never vote for X
or Y."
SENATOR THERRIAULT commented it would be interesting to know the
discussion that took place when the statutes were crafted to
clarify the reason for the exception.
1:52:10 PM
SENATOR McGUIRE mused that it's not unheard of for an elected
official to change his/her mind on an issue as a result of
increased understanding of a subject. Hypothesizing about
changing her mind about tort reform, she asked if it could be
interpreted as a violation if the trial lawyers association were
to contribute to her campaign after learning that she had
changed position.
CHAIR FRENCH said the contribution was not made in exchange for
an agreement to change position; the change came first.
SENATOR HUGGINS asked if a vote for a particular candidate would
qualify as proof of an exchange.
CHAIR FRENCH said no. "You'd have to show the blood oath, the
handshake, the hall of lawyers outside waiting with checkbooks."
That's the proof to the agreement to change your mind in
exchange for the money."
1:56:36 PM
SENATOR WIELECHOWSKI brought up the issue of questionnaires that
candidate respond to during election cycles. The answers are
evaluated and could result in a campaign contribution. He asked
for discussion on the thinking because even though he realizes
that there is a mens rea that has be met, he wants to be sure
that type of situation would be covered.
CHAIR FRENCH said it would be problematic if the questionnaire
came with a check that was good only if a certain series of
boxes is selected.
SENATOR McGUIRE said she is bothered by questionnaires that
require a date and a signature agreeing to certain points.
Sometimes the questionnaires come at forums and it's very clear
that the members won't support candidates that don't agree to
certain positions.
CHAIR FRENCH said that is a good example of the normal political
process for achieving particular goals and perhaps the
Department of Law could help the committee on the issue of
whether there has been quid pro quo - an exchange or a deal made
to change your mind in exchange for that contribution.
SENATOR McGUIRE elaborated that in some forums candidates may
only have the opportunity to hold up a card indicating agreement
or disagreement with a particular question or issue. There is no
opportunity to explain the reason for an answer or the reasoning
behind a change in position. At the end there is an evaluation
on some level and the candidate may or may not get a check.
SENATOR FRENCH granted that that is an example of money and
power being persuasive, but what is missing is the explicit
agreement that the candidate is changing his or her mind in
exchange for a contribution.
2:01:00 PM
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Department of Law, drew attention to the fact that the bill
changes the definition of benefit. Benefit is used in the
bribery statute, which is a specific intent crime thereby
providing yet another layer of having to prove specific intent.
She clarified that specific intent means that someone does an
act with a specific intent of getting a result out of the act.
For example, intent to kill means that someone does an act that
intends to cause the death of somebody.
CHAIR FRENCH added that the most difficult type of crime to
prove is the type where there is specific intent, mental
element.
MS. CARPENETI agreed adding that that is why there aren't many
in case law.
SENATOR THERRIAULT noted that Title 11 deals with criminal law.
CHAIR FRENCH said that's a good point; it is not an Ethics Act
issue.
SENATOR HUGGINS asked about enforceability unless there is a
recording.
MS. CARPENETI recalled just two cases. One case was a bribery
prosecution of a former legislator, which did involve a wire and
she wasn't sure about the other.
2:03:26 PM
SENATOR WIELECHOWSKI asked for an opinion on the following
situations: 1) someone answers a questionnaire and then receives
a check from the entity that issued the questionnaire, and
2)someone changes his/her vote and then receives a campaign
contribution. He asked if she foresees those situations as
bribery under the current proposal.
MS. CARPENETI replied those situations are different. They do
not involve the quid pro quo; there is no bargain or meeting of
the minds to exchange a position for money.
SENATOR WIELECHOWSKI, noting that the proposed amendment says
"to alter an elected official's ... vote", asked if she agrees
that the current language does not cover situations where a
candidate doesn't have a particular position but might be
influenced one way or another.
MS. CARPENETI said she does agree, but she would want to give it
serious thought before suggesting different language.
SENATOR WIELECHOWSKI asked if she interprets the provision as
applicable to both the briber and the bribee.
MS. CARPENETI said yes.
SENATOR HUGGINS removed his objection to Amendment 1.
CHAIR FRENCH, finding no further objection to Amendment 1,
announced it is adopted.
At ease
2:07:07 PM
CHAIR FRENCH motioned to adopt Amendment 2, labeled 25-
GS1059\E.7, and Senator Huggins objected for discussion
purposes.
A M E N D M E N T 2
OFFERED IN THE SENATE BY SENATOR FRENCH
TO: CSSB 64(JUD), Draft Version "E"
Page 1, line 3, following "Commission;":
Insert "relating to the use of state government
assets and resources when there is no charge to the
state for their use, and to the use of state aircraft
for partisan political purposes;"
Page 4, following line 30:
Insert new bill sections to read:
"* Sec. 6. AS 39.52.120(b) is amended to read:
(b) A public officer may not
(1) seek other employment or contracts
through the use or attempted use of official position;
(2) accept, receive, or solicit
compensation for the performance of official duties or
responsibilities from a person other than the state;
(3) use state time, property, equipment, or
other facilities to benefit personal or financial
interests;
(4) take or withhold official action in
order to affect a matter in which the public officer
has a personal or financial interest;
(5) attempt to benefit a personal or
financial interest through coercion of a subordinate
or require another public officer to perform services
for the private benefit of the public officer at any
time; or
(6) use or authorize the use of state
funds, facilities, equipment, services, or another
government asset or resource for partisan political
purposes; this paragraph does not prohibit use of the
governor's residence for meetings to discuss political
strategy and does not prohibit use of state aircraft
or the communications equipment in the governor's
residence so long as there is no [SPECIAL] charge to
the state for the use; in this paragraph, "for
partisan political purposes"
(A) means having the intent to
differentially benefit or harm a
(i) candidate or potential candidate for
elective office; or
(ii) political party or group;
(B) but does not include having the intent
to benefit the public interest at large through the
normal performance of official duties.
* Sec. 7. AS 39.52.120 is amended by adding a new
subsection to read:
(f) Use of state aircraft for partisan political
purposes is permitted under (b) of this section only
when the use is collateral or incidental to the normal
performance of official duties and does not exceed 10
percent of the total of the use of the aircraft for
official purposes and partisan political purposes,
combined, on a single trip. A public officer who
authorizes or makes any partisan political use of a
state aircraft under (b) of this section shall
disclose the authorization and use under AS 39.52.210,
39.52.220, or 39.52.230 for each trip, and the person
who uses the aircraft shall reimburse the state for
the actual cost of the use."
Renumber the following bill sections accordingly.
Page 5, line 13:
Delete "secs. 7 and 8"
Insert "secs. 9 and 10"
SENATOR FRENCH highlighted that Amendment 2 follows up on a
previous discussion about the use of state aircraft. After that
discussion he reviewed the APOC decision as well as the opinion
Mr. Jones issued regarding the way jet use is allocated.
Recognizing that the governor is a complex person with a
fulltime job that doesn't allow leave slips, he continues to
return to the fact that the jet is a state asset and the use of
state facilities to further partisan political purposes is
simply not right.
CHAIR FRENCH explained that the amendment does essentially two
things. It adds "state aircraft" into the same category as the
governor's residence to make it clear that the governor is not
prohibited from sitting in the aircraft and talking about
politics. Similar to the residence, it is a place that the
governor will spend a certain amount of time so it shouldn't be an
ethics violation to have a political discussion.
The second thing the amendment does is allow for the fact that
if the governor takes the jet to a bill-signing and it is during
campaign season, there may be some incidental use of that travel
to accomplish some partisan political end. Nevertheless, in his
view that time should be very incidental or the governor should
not be using a valuable state asset to achieve that partisan
political end.
2:11:54 PM
SENATOR THERRIAULT asked for an explanation of the 10 percent
allocation.
CHAIR FRENCH said his interpretation is that it is the
percentage of time spent on partisan political activity compared
to the total time spent on the trip. Each trip would be a
separate entity.
SENATOR THERRIAULT asked how he made the 10 percent
determination.
CHAIR FRENCH said it was a policy call. Right now up to 48
percent may be okay, which strikes him as being far too much.
SENATOR HUGGINS asked if this would apply to the governor's
chauffeured vehicles.
CHAIR FRENCH responded the amendment targets state aircraft -
specifically the jet.
2:13:49 PM
DAVID JONES, Assistant Attorney General, Criminal Division,
Department of Law, said the current language would not cover
chauffeured vehicles. Including chauffeured vehicles is
problematic because security concerns frequently dictate that
the governor use that type of transportation.
SENATOR HUGGINS questioned what "government asset or resources"
would be other than aircraft.
MR. JONES replied that would be a variety of things including
the governor's residence or office.
SENATOR HUGGINS said that's already been discussed; the
residence can be used.
MR. JONES said use the residence for partisan political purposes
is very limited. For example the governor could not hold a
fundraiser at the residence.
CHAIR FRENCH clarified that the preemption is for partisan
political purposes; a rally for breast cancer, Boys and Girls
Club or something similar is acceptable.
SENATOR McGUIRE asked if the state would pay for airline tickets
for a security detail to travel with the governor when she/he is
campaigning and flying commercial.
2:18:17 PM
MR. JONES understands that the governor is usually accompanied
by security, but he doesn't know the details. He further
explained that the current APOC rules would require an
allocation of cost if the state pays for a plane ticket and one
of the purposes of the trip is to participate in partisan
political activity.
SENATOR THERRIAULT questioned why that system wouldn't work for
the state aircraft.
MR. JONES explained that under this provision there would be
separate treatment for state aircraft.
SENATOR THERRIAULT questioned why the current system couldn't
accommodate both.
MR. JONES replied it is a policy call.
SENATOR THERRIAULT asked for clarification that the current
system does not cover the jet.
MR. JONES said when he wrote the opinion that was discussed at
the last hearing he believed that the current system would deal
with the use of state aircraft. He acknowledged that many
people, including some on the committee, disagree with his
opinion.
CHAIR FRENCH said in all fairness to Mr. Jones it is conceivable
to continue under the current system. However, because the jet
is an extremely valuable state asset, tight rules should be
constructed to make it clear to the public that it will not be
used as a private jet.
2:20:32 PM
MR. JONES said he had opportunity to review the amendment and he
would suggest that the reference to AS 39.52.230 on page 2, line
17 is redundant. Also, on line 18 the reference to reimbursement
of the actual cost of the use isn't clear. It could mean the
entire cost of the trip or just the proportionate share that is
attributed to the partisan political activity. He suggested that
if partisan political activity is restricted to just 10 percent,
then it might be overwhelming to require a public officer to pay
the entire cost of the use of the state aircraft.
CHAIR FRENCH said his intent is to require payment for the
portion attributable to partisan political purposes.
MR. JONES suggested inserting "a proportionate share of."
CHAIR FRENCH motioned to amend Amendment 2. On line 18 insert
"the proportional share of" after the word "for" and before the
word "the".
2:23:29 PM
SENATOR WIELECHOWSKI objected to ask if the language prohibits
the governor from using state aircraft for all partisan
political purposes.
CHAIR FRENCH said no, but anything exceeding 10 percent would be
an ethics violation.
SENATOR WIELECHOWSKI asked for clarification that there would
not be an instance in which the governor reimbursed more than 10
percent because that would be an ethics violation.
MR. JONES said that's correct. He understands that the amendment
would say that if the attributable time is more than 10 percent,
then the governor could not use the state aircraft. Also, the
governor would be required to reimburse the state for the share
of the travel that is attributable to the partisan political
activities so that use of a state aircraft would not be a
benefit.
2:24:50 PM
SENATOR WIELECHOWSKI withdrew his objection.
CHAIR FRENCH announced that without objection, the amendment to
Amendment 2 is adopted and the committee would continue to
consider the amendment.
SENATOR THERRIAULT remarked that under the 10 percent rule a two
hour flight to Anchorage would leave just 12 minutes for
partisan political activity and that is too tight.
CHAIR FRENCH suggested the committee clarify how much time is
involved and what time is relevant for one trip. In his view it
would be easier to consider time on the ground, roundtrip travel
time and time spent performing official duties as one trip. Thus
for a ten hour trip from Juneau to Juneau, the allowable time
for partisan political time would be one hour. That strikes me
as being fair, he stated, "but if it's a two hour fundraiser,
maybe you should be flying coach."
SENATOR THERRIAULT agreed that it is more palatable if the
relevant time is from takeoff to touchdown, but other than the
discussion here in the committee he isn't sure it would be
interpreted that way.
SENATOR WIELECHOWSKI commented that weather greatly affects
total travel time so he questioned whether travel is the best
indicator. He asked Mr. Jones how that is addressed currently.
MR. JONES said Chair French, Ms. Smith and the drafter did a
remarkable job on a very difficult concept. He didn't believe
the attorney general's office would have any trouble
interpreting a single trip as being takeoff to touchdown, but he
couldn't speak for the personnel board or the court system.
SENATOR McGUIRE pointed out that the intent is to change
behavior. For awhile this will be inconvenient, but ultimately
incumbents will be required to better separate the office of the
governor and partisan political activities.
2:30:09 PM
CHAIR FRENCH motioned to adopt a second amendment to Amendment
2. On page 2, line 17, delete "or 39.52.230".
SENATOR WIELECHOWSKI suggested different punctuation.
CHAIR FRENCH rephrased the second amendment to Amendment 2. On
page 2, line 16, after "210" delete the comma and insert "or"
and after "220" delete ", or 39.52.230". There was no objection
and the second amendment to Amendment 2 was adopted.
SENATOR HUGGINS removed his objection to Amendment 2.
CHAIR FRENCH announced that without objection Amendment 2 is
adopted. He stated his intention to prepare a clean committee
substitute and bring the bill back before the committee at the
next meeting for final action.
2:32:40 PM
SENATOR HUGGINS commented and he hopes that what is being done
here doesn't haunt future legislatures. "I'm listening to this
and reluctantly accepting it," he stated.
CHAIR FRENCH held SB 64 in committee.
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