Legislature(2021 - 2022)BUTROVICH 205
04/12/2021 01:30 PM Senate JUDICIARY
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Audio | Topic |
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Start | |
SB82 | |
SB9 | |
SB15 | |
Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
+= | SB 15 | TELECONFERENCED | |
+= | SB 82 | TELECONFERENCED | |
+= | SB 9 | TELECONFERENCED | |
+ | TELECONFERENCED | ||
SB 82-ELECTIONS; ELECTION INVESTIGATIONS 1:37:43 PM CHAIR REINBOLD announced the consideration of SB 82, SENATE BILL NO. 82, "An Act relating to elections and election investigations." 1:38:23 PM CORI MILLS, Senior Assistant Attorney General, Labor & State Affairs Section, Civil Division, Department of Law, Juneau, Alaska, began a PowerPoint on SB 82. She said the purpose of SB 82 is to authorize the attorney general to conduct civil investigations into election law violations and to bring civil enforcement actions if a violation is found. 1:39:28 PM MS. MILLS turned to slide 3. She highlighted that under the current Title 15, Chapter 13, the Alaska Public Offices Commission (APOC) handles campaign finance violations. This bill relates to initiatives, petitions to gather signatures, voter residency and candidate filings. Currently, if the Division of Elections identifies suspicious behaviors related to an absentee ballot application or someone files a complaint, its only option is to refer it for criminal investigation and prosecution. However, the division does not have any investigative authority. This bill gives the division another tool it can use when it identifies any suspicious behavior. This bill would provide the Department of Law with civil investigative powers similar to consumer protection investigations. 1:40:49 PM MS. MILLS explained that civil investigations differ from criminal investigations in many ways. First, the process for civil cases is not as lengthy as for criminal cases. Next, the evidentiary standard of proof differs. The state must adhere to constitutional standards in criminal cases since the state could potentially take away someone's freedom. The evidentiary standard of proof in criminal cases is beyond a reasonable doubt, whereas civil cases use a preponderance of evidence standard. This means the state must prove it is more likely than not the conduct happened or that the action was unlawful. Finally, the flow of information is different. In civil cases, it is possible to acquire information to assist the division in making determinations that the director must make by statute. However, law enforcement holds this information confidential in criminal cases, so the division may not hear about it until after charges are filed. She characterized this as providing another layer of tools for civil cases. 1:42:29 PM SENATOR MYERS wondered if this structure allows the department to move a case from civil to criminal. MS. MILLS answered yes. SB 82 will not limit criminal investigations or prosecutions because the department could conduct concurrent investigations. She stated that the department needs to be mindful of when evidence can be gathered for both investigations and when it must be gathered independently. DOL can determine which avenue is appropriate or if both are warranted. 1:43:43 PM SENATOR SHOWER asked whether law enforcement will get additional training on election laws and procedures and conversely if the Division of Elections will get additional training on law enforcement procedures. MS. MILLS explained that these cases will be investigated by an investigative unit within the Department of Law. These cases will be handled similarly to how the department conducts consumer protection cases unless the Alaska State Troopers refer the cases for criminal prosecution. DOL's consumer protection investigators are trained on civil investigative techniques. She did not recall if it was by regulation or policies and procedures. It makes sense to create this civil layer for election violations since AST may not prioritize election violations as high as some criminal cases. 1:46:17 PM SENATOR SHOWER asked if she could report back on whether this will be codified or set by policy. He highlighted his concern that policies often change with each administration. MS. MILLS agreed to do so. 1:47:01 PM SENATOR KIEHL asked what efforts the Division of Election would make to train the Division of Election staff on pre- investigative techniques. MS. MILLS answered that determinations on complaints or allegations would be made by the division, in consultation with DOL, as to whether the allegation is true, whether the complaint is considered a legal violation, a frivolous complaint, or in compliance with the law. The Division of Elections would not conduct a pre-investigation since the bill does not give the division any investigative authority. She commented that this was intentional and she would be happy to elaborate. 1:48:15 PM SENATOR KIEHL said it would be helpful to know why the complaints must be filed with the Division of Elections if that agency will not decide if the complaints are valid. 1:48:29 PM SENATOR SHOWER expressed concern about whether the Division of Election staff will have adequate training so staff will know what to look for and how to respond to the allegations. MS. MILLS offered to try to address some of the points. 1:49:20 PM MS. MILLS said many models exist for housing election investigations. Election investigations could be housed in the Secretary of State's office, which is the lieutenant governor's office; the Board of Elections for states without a division; or in the attorney general's office. The administration decided to house the election investigations in the attorney general's office because DOL uses a similar process for consumer protection complaints. Since DOL has a criminal division, it can collaborate with the civil division due to confidentiality in the department. It is more cost-effective to use the existing structure rather than creating an entirely new infrastructure within the Division of Elections. 1:51:08 PM MS. MILLS reviewed slide 6, which listed two examples where civil investigations and enforcement actions could have been beneficial. The first example related to suspicious absentee ballot applications in the 2018 House District 15 case led to filed criminal charges. Initially, the Division of Elections received suspicious absentee ballots with anomalies, including signatures that looked the same, or a substantial number of people appeared to live in one motor home. The Division of Elections began working with the criminal division and law enforcement, which was appropriate. However, the Division of Elections lacked the authority to determine whether these voters were valid voters and who signed the applications. Suppose DOL's civil division had an investigator with authority to conduct election investigations. In that case, the Division of Elections could have referred the names on the suspicious ballots to the civil division's investigator. If so, the division may have resolved the case much more quickly. It may have been possible to go to court to force compliance for any violations. 1:52:34 PM SENATOR HUGHES asked for clarification on when cases are considered civil or criminal because she tends to think of civil cases as between two parties. If SB 82 were law, she asked whether it would it be necessary for a party to file a complaint to initiate action or if the case could be triggered by election staff observing suspicious behavior and reporting it. MS. MILLS answered the latter. If the Division of Election's staff identified suspicious activity, the division could refer the issue to the DOL's civil division. The investigation would be held confidential until the civil division acquired enough evidence to go to court and file an action. SENATOR HUGHES asked if the Division of Elections would file the civil complaint. MS. MILLS acknowledged that was correct. Just as in consumer protection cases, DOL would investigate the case. Sometimes DOL will alert parties about a violation and achieve voluntary compliance. Otherwise, the attorney general would file a case on behalf of the Division of Elections but the division of elections would be involved. SENATOR HUGHES asked for a list of activities covered under APOC's jurisdiction and to identify any gaps that would fall under DOL's civil division. 1:55:55 PM SENATOR SHOWER referred to the scenario on slide 6. He expressed concern that in seeking voluntary compliance, the civil division would need to alert the violator. He expressed concern that the violator will not be prosecuted for the crime once the violator is alerted that the case will be pursued as a civil case. He asked how confidentiality is maintained. MS. MILLS responded that this illustrates another reason to house election investigations in the attorney general's office. She said DOL handles civil and criminal Medicaid fraud. She acknowledged that it is important to be careful when proceeding with the investigations to avoid alerting the bad actor in cases that should be criminally enforced. There may be some aspects that need to be referred as criminal cases. SENATOR SHOWER asked who would make the referrals. MS. MILLS answered that the attorney general would make the referrals. 1:57:58 PM CHAIR REINBOLD asked if there are penalties if someone informs the violator. MS. MILLS answered that the state has laws it can enforce if someone tips off a violator, such as obstructing an investigation, which would apply to civil and criminal cases. She offered to research the specific statutes that would apply and report back to the committee. 1:58:56 PM MS. MILLS referred to the second example on slide 6, the signature gathering for the oil and gas initiative 190GTX. A lawsuit was filed after the lieutenant governor certified the oil and gas signatures. The lawsuit alleged that petition gatherers were receiving more than one dollar per signature, which is prohibited by statute. She said she would set aside the interpretation question on whether signature gatherers were being paid too much. The complainant came forth just prior to the lieutenant governor's decision to certify the petition. At the time, if DOL had had the civil investigative tools in place, the department could have referred the complaint to the civil division. The department could have resolved the case more quickly, she said. The department could have reviewed the contracts to determine if they violated the law. The lawsuit process required filing discovery to acquire that information. 2:00:36 PM MS. MILLS discussed the complaint referral process on slide 7. The attorney general would also have independent authority to conduct investigations. Under SB 82, the division will review the complaint and determine whether it warrants investigation once a complaint is received. If not, the department would dismiss the complaint. If the complaint merits further review, it would be forwarded to the attorney general's office. The attorney general has the discretion to conduct an investigation, which is similar to law enforcement or prosecutorial discretion. The cases will be prioritized if the attorney general is inundated with complaints. 2:02:49 PM SENATOR HUGHES asked for assurance that the determination would be objective rather than subjective. She asked if the Division of Elections would have access to legal advice for its assessment process. She said she would prefer strict criteria be developed that the division must follow. MS. MILLS answered that the bill provides a standard to determine if the complaint is frivolous or alleges some type of violation. Someone might think an action or behavior constitutes a violation or is illegal, but it is not. The division will consult with the Department of Law (DOL) on these matters. 2:04:20 PM THOMAS FLYNN, Assistant Attorney General, Information and Project Section, Department of Law, Anchorage, Alaska, stated that [AS 15.56.140] (l) in SB 82 defines frivolous. He characterized the definition as a standard one in law, including in Civil Rule 11. It read: (1) "frivolous" means (A) not reasonably based on evidence or on existing law or a reasonable extension, modification, or reversal of existing law; or (B) brought to harass the subject of the complaint or to cause unnecessary delay or needless expense; 2:04:49 PM SENATOR HUGHES stated that the Division of Election's staff are not attorneys. She asked what assurances could be made that the division staff will be trained or if they will seek legal advice from DOL. MS. MILLS answered that currently, DOL's attorney assigned to the Division of Elections works very closely with the division. She assured members that the division does not take action without consulting the DOL. Further, DOL works with the division on pamphlets and procedures used when determining which votes to count or not count. She said she anticipates DOL will provide the division with examples of how the statute works to allow the division to implement the statute consistently. She clarified that the division director would be making these decisions. 2:06:26 PM SENATOR SHOWER expressed concern about the number of complaints that the division and the attorney general could handle. He asked whether the penalty provisions would be codified. MS. MILLS responded that two types of penalties apply. One addresses compliance; the second would require paying attorney fees and costs if DOL prevails in the lawsuit. In addition, DOL could enforce civil penalties against the complainant as ordered by a court. Civil penalties can range from zero to $25,000, depending on the severity of the violation. 2:07:27 PM SENATOR SHOWER asked again how DOL would handle large numbers of complaints in terms of training or prosecution. MS. MILLS answered that the Division of Elections already has a high volume of complaints. The division anticipates it can continue to handle the complaints. She pointed out that DOL prepared a fiscal note for the referrals to the department. She explained it already takes more than one attorney to assist the division in peak times. DOL currently has an election team. She said DOL would need additional resources including an investigator and an attorney. The department would use its consumer protection investigator as part of the team. She anticipated that complaints would be made post-election and during the initiative process. She explained that DOL envisions both investigators being cross-trained to handle election or consumer protection complaints. 2:09:45 PM SENATOR KIEHL asked for the volume of complaints the Division of Elections anticipates. He expressed concern that the provisions in SB 82 will provide an avenue for campaigns to attack their opponents. MS. MILLS deferred to Ms. Fenumiai to respond. 2:10:49 PM GAIL FENUMIAI, Director, Division of Elections, Office of the Lieutenant Governor, Juneau, Alaska, responded that she does not have the means to predict the number of complaints. Still, in consultation with DOL, she believes that the division could handle them. 2:11:31 PM SENATOR KIEHL referred to the complaint process shown on slide 7. When the division receives a complaint, the division will make a determination whether the complaint is frivolous. He asked whether an aggrieved complainant is entitled to an appeal. MS. MILLS responded that currently, the bill does not provide for an appeal process, but the attorney general has independent authority, so a complainant could informally appeal to the attorney general. 2:13:06 PM MR. FLYNN provided a sectional analysis of the bill. He summarized the bill as follows [original punctuation provided]: This bill would add a section to the Elections Title 15 chapter 56. Subsection (a) would allow anyone can file a written complaint alleging a violation of state election laws or regulations to the Division of Elections. The complaint must be filed within 30 days after an election or 30 days after the alleged violation occurred, whichever is later. Subsection (b) directs the Division of Elections to refer alleged violations of campaign finance laws under AS 15.13 to the Alaska Public Offices Commission (APOC). The division has the discretion to refer all other complaints to the attorney general. If the complaint is incomplete, frivolous, or does not allege a violation, the division can request additional information or it could dismiss the complaint. 2:13:59 PM Subsection (c) allows the attorney general to investigate an alleged violation identified by a complainant, the division, or the attorney general. Subsection (d) authorizes the attorney general to conduct an investigation by subpoenaing witnesses for documents, holding hearings under oath, sending interrogatories and examining records. Subsection (e) provides that the records or intelligence resulting from the investigations are not public records, except that the attorney general may issue statements describing the activities that violate election law. Subsection (f) directs the attorney general to inform the Division of Elections of the results of an investigation with the option to submit a report. If the complaint against a state agency or employee has merit, the division will make efforts to take corrective action. The records and intelligence information resulting from the investigation remain confidential unless they are submitted to a court or used by the division as the basis for a course of action. 2:14:56 PM Subsection (g) allows the attorney general to sue for injunctive relief after the investigation provided the alleged violation is not a violation of campaign finance laws. Subsection (h) allows the attorney general to seek a civil penalty of not more than $50,000 per violation along with reasonable fees and costs, including the cost of the investigation. Subsections (i) and (j) allow the division and the attorney general to adopt regulations to implement this section. Subsection (k) clarifies that the person filing the complaint may also file an independent civil action in superior court. Subsection (l) defines frivolous, state agency and state employee. 2:16:01 PM SENATOR HUGHES asked whether the requirement that complaints must be filed within 30 days of an election was adequate. She stated that tight races are often not decided quickly. She suggested that DOL could respond at the next hearing. [SB 82 was held in committee.]
Document Name | Date/Time | Subjects |
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SB 82 Presentation.4.12.21.pdf |
SJUD 4/12/2021 1:30:00 PM |
SB 82 |
SB 82 Sponsor Statement version A.pdf |
SJUD 4/12/2021 1:30:00 PM |
SB 82 |
SB 82 version A.PDF |
SJUD 4/12/2021 1:30:00 PM |
SB 82 |
SB 82 Sectional Analysis version A.pdf |
SJUD 4/12/2021 1:30:00 PM |
SB 82 |
SB 82 Law Fiscal Note.pdf |
SJUD 4/12/2021 1:30:00 PM |
SB 82 |
SB15 Amdnement G.5 Hughes.pdf |
SJUD 4/12/2021 1:30:00 PM |
SB 15 |
SB15 Amendment G.6 Hughes.pdf |
SJUD 4/12/2021 1:30:00 PM |
SB 15 |
SB15 amendment G.3 Kiehl.pdf |
SJUD 4/12/2021 1:30:00 PM |
SB 15 |