Legislature(2003 - 2004)

03/19/2003 01:32 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
               SB 45-LB&A CRIMES AND COOPERATION                                                                            
                                                                                                                                
SENATOR  LYDA  GREEN,  sponsor  of  SB 45,  told  members  that  a                                                              
proposed committee  substitute version Q was prepared  and was the                                                              
result  of   concerns  expressed   during  a  previous   committee                                                              
hearing.                                                                                                                        
                                                                                                                                
SENATOR  THERRIAULT  made  a motion  to  adopt  version Q  as  the                                                              
working document.                                                                                                               
                                                                                                                                
There being no  objection, Chair Seekins announced  that version Q                                                              
was before the committee.                                                                                                       
                                                                                                                                
SENATOR GREEN gave  the following explanation of  the changes made                                                              
in version Q:                                                                                                                   
                                                                                                                                
   · the felony status was changed to a misdemeanor throughout,                                                                 
     and accomplishes the same purpose                                                                                          
  · the term "public employee" was changed to "state employee"                                                                  
   · on line 21 of page 2, the expression, "an appointing                                                                       
     authority may appoint" includes all state employees                                                                        
   · Section 4 on line 23 of page 2 adds to current statutory                                                                   
     language   so   that   whistleblower   status   would   cover                                                              
     interference  or any failure  to cooperate  with an  audit or                                                              
     other matter  within the authority of the  Legislative Budget                                                              
     and Audit Committee.                                                                                                       
                                                                                                                                
CHAIR SEEKINS asked Senator Green about the proposed amendments.                                                                
                                                                                                                                
SENATOR   GREEN  explained   that  Senator   Therriault  has   one                                                              
amendment that  contains some deletions  and the  other amendments                                                              
pertain to changes in the reporting authority.                                                                                  
                                                                                                                                
SENATOR ELLIS  asked Senator  Green the  level of misdemeanor  and                                                              
the maximum penalty it carries.                                                                                                 
                                                                                                                                
SENATOR  GREEN said  the penalty  is  a class  A misdemeanor.  She                                                              
deferred to Mr. Branchflower for further details.                                                                               
                                                                                                                                
MR.  STEVE BRANCHFLOWER,  Office of  Victims' Rights,  Legislative                                                              
Affairs Agency,  told members that  a class A misdemeanor  carries                                                              
a maximum jail term  of one year and a maximum  fine of $2,000 and                                                              
would  be for  hindering the  Legislative Budget  and Audit  (LBA)                                                              
Committee  in the first  degree. The  second degree  is a  class B                                                              
misdemeanor  with a  maximum  penalty of  90  days in  jail and  a                                                              
fine.                                                                                                                           
                                                                                                                                
SENATOR  GREEN asked  Mr.  Branchflower to  describe  how a  court                                                              
would handle the probable sentence.                                                                                             
                                                                                                                                
MR.  BRANCHFLOWER  said  it  would  depend  on  a  person's  prior                                                              
criminal history.  Neither statute would subject  the defendant to                                                              
presumptive sentencing  because that  only applies to  felonies. A                                                              
judge  would  have  total  discretion in  terms  of  fashioning  a                                                              
sentence.  The judge  would look  to the  person's background  and                                                              
consider  the  arguments. The  court  could  also request  a  pre-                                                              
sentence report.                                                                                                                
                                                                                                                                
SENATOR  ELLIS  asked  if,  upon  conviction,  there  could  be  a                                                              
significant find and  someone could conceivably go to  jail for up                                                              
to one year.                                                                                                                    
                                                                                                                                
MR.  BRANCHFLOWER   said  that  is  correct  for   a  first-degree                                                              
conviction for a class A misdemeanor.                                                                                           
                                                                                                                                
SENATOR  ELLIS asked  if that is  the charge  for not  cooperating                                                              
with the LBA committee.                                                                                                         
                                                                                                                                
MR. BRANCHFLOWER said  it would be for violation  of AS 11.56.870,                                                              
hindering the LBA committee as a state employee.                                                                                
                                                                                                                                
CHAIR   SEEKINS   asked  if   hindering   means   more  than   not                                                              
cooperating.                                                                                                                    
                                                                                                                                
MR.  BRANCHFLOWER said  that  is correct:  hindering  contemplates                                                              
all of the  conduct that is set out  on the top of page  2, so the                                                              
person would  have to actively obstruct  as opposed to  failure to                                                              
provide information in response to a request.                                                                                   
                                                                                                                                
SENATOR  ELLIS asked  what  the underlying  rationale  is for  the                                                              
heavy hand  in regard to  the LBA Committee  and not to  the other                                                              
standing legislative committees.                                                                                                
                                                                                                                                
MS. JACQUELINE  TUPOU, staff to  Senator Green, told  members that                                                              
an amendment  proposed by  Senator Therriault  might resolve  that                                                              
concern  by adding  another  layer  to this  process  so that  the                                                              
consequences do not happen immediately.                                                                                         
                                                                                                                                
SENATOR THERRIAULT  moved to adopt  Amendment 1 and asked  that it                                                              
be considered  a conceptual  amendment to  give the legal  drafter                                                              
some leeway for corrections.                                                                                                    
                                                                                                                                
SENATOR ELLIS objected.                                                                                                         
                                                                                                                                
SENATOR  THERRIAULT  told  members  that  when he  looked  at  the                                                              
language on  page 2,  lines 3 and  4, he  was concerned  about who                                                              
the words  "committee or its staff"  referred to. As  the outgoing                                                              
chair of  the LBA Committee,  his staff  consisted of  the auditor                                                              
and all  of her personnel, the  fiscal analyst and  his personnel,                                                              
and the  Senator's personal  staff as well  as a committee  person                                                              
who interacted  between his  office and  the others. In  addition,                                                              
all of the  LBA Committee members  had a staff member.  He did not                                                              
feel  it was  appropriate that  a request  from any  one of  those                                                              
members  or   their  staff  would   trigger  this   provision  and                                                              
jeopardize  their  employment  and  subject  them to  a  fine.  He                                                              
explained that Amendment  1 would replace the words  "committee or                                                              
its  staff"  with  "the legislative  auditor  or  the  legislative                                                              
fiscal  analyst".   He advised that  Pat Davidson  and David  Teal                                                              
now  hold those  positions.  Therefore,  if  their shops  make  an                                                              
official  request   for  information,  this  provision   would  be                                                              
triggered  if the  information  were withheld.  He  noted that  he                                                              
could  envision departments  wanting  to protect  social  security                                                              
numbers,  income information,  or  other confidential  information                                                              
from  his  staff because  they  don't  work  under any  canons  of                                                              
confidentiality. However,  the Legislative Budget and  Audit staff                                                              
and  the  Legislative  Finance  staff do  so  agencies  should  be                                                              
comfortable  sharing that  information with  those two  divisions.                                                              
The wording of Amendment 1 solves his concern.                                                                                  
                                                                                                                                
SENATOR ELLIS said  that Amendment 1 is a huge  improvement and he                                                              
withdrew his objection.                                                                                                         
                                                                                                                                
CHAIR  SEEKINS   announced  that  Amendment  1  as   a  conceptual                                                              
amendment was adopted.                                                                                                          
                                                                                                                                
SENATOR  GREEN told  members that  Section 5  was incorporated  at                                                              
Senator Therriault's request.                                                                                                   
                                                                                                                                
MS. TUPOU  explained that  Section 5 is  a housekeeping  issue. In                                                              
1980 when  the permanent fund board  was established, there  was a                                                              
provision  requiring legislative  confirmation  of board  members.                                                              
It also  provided that  LBA would  hold some  public hearings  and                                                              
offer  recommendations on  the  nominees. In  1982,  a court  case                                                              
decision declared  that provision  unconstitutional. She  surmised                                                              
that  provision   was  removed  elsewhere  but   because  computer                                                              
programs did  not provide word search  abilities at that  time, it                                                              
was never removed from these sections of statute.                                                                               
                                                                                                                                
CHAIR SEEKINS  noted that  Section 5 was  already adopted  as part                                                              
of version Q.                                                                                                                   
                                                                                                                                
MS. TUPOU  told members that Amendment  1 would add  another layer                                                              
so that if an  auditor didn't get the requested  information, they                                                              
would notify  Ms. Davidson who would  make the official  call. The                                                              
violation would be  triggered if her request went  unanswered. The                                                              
person must be a public servant, which implies public trust.                                                                    
                                                                                                                                
SENATOR ELLIS recalled  serving on the Senate  Judiciary Committee                                                              
with Senator  Taylor who was frustrated  that he didn't  have more                                                              
power to  obtain information. That  is what prompted  his question                                                              
about why  these powers  and potential  penalties would  not apply                                                              
to other legislative committees.                                                                                                
                                                                                                                                
TAPE 03-10, SIDE A                                                                                                            
3:14 p.m.                                                                                                                     
                                                                                                                                
SENATOR  GREEN said  that  has to  do  with the  role  of the  LBA                                                              
Committee,  and   Legislative  Finance   partners  with   the  LBA                                                              
Committee  in doing investigative  work.  That standard is  higher                                                              
because  often  investigations  are  the  result  of  questionable                                                              
activity.                                                                                                                       
                                                                                                                                
SENATOR ELLIS  asked Senator  Green why she  changed her  mind and                                                              
changed the felony charge to a misdemeanor charge.                                                                              
                                                                                                                                
SENATOR GREEN said  after she left the last meeting,  it dawned on                                                              
her that  the real  question is  what is  the appropriate  penalty                                                              
that would  get the desired result  and act as an incentive  for a                                                              
person to cooperate.                                                                                                            
                                                                                                                                
SENATOR  FRENCH   expressed  concern  that  this   is  a  criminal                                                              
prosecution   that   could  be   used   to  punish   someone   for                                                              
discouraging  full   cooperation.    He  provided   the  following                                                              
hypothetical example.   Two department  employees are ready  to go                                                              
home  at 4:30  and  an  LBA auditor  calls  and requests  a  large                                                              
report right  then.  One of  the employees suggests they  say they                                                              
are  too  busy  to  get  to it  today.    That  employee  has  now                                                              
discouraged  the  other  worker  from  fully  cooperating  with  a                                                              
legislative  auditor.   He  said  that  may  seem like  a  trivial                                                              
example,  but that person  could be  prosecuted for  a crime.   He                                                              
said  the real  weapon is  a person's  job.   If a  person is  not                                                              
doing his or her  job and is malingering instead  of making copies                                                              
for an auditor,  that person should be fired.   He maintained that                                                              
no judge  would  put anyone  in jail for  breaking  this law.   He                                                              
said that losing  one's job as a consequence seems to  him to be a                                                              
more realistic approach to the problem.                                                                                         
                                                                                                                                
CHAIR SEEKINS  countered that  he does not  think any  judge would                                                              
convict anyone  of a  crime for  putting off  a request  until the                                                              
following  morning.     He  asked  Senator  French   if  he  would                                                              
prosecute such a case.                                                                                                          
                                                                                                                                
SENATOR FRENCH said  judges do not convict; juries  do. He said he                                                              
frequently  goes before juries  and tells  them their  decision to                                                              
make  is not  whether  this is  a big  or  small violation,  their                                                              
decision is whether the law has been broken.                                                                                    
                                                                                                                                
CHAIR  SEEKINS asked  if  the prosecutor's  office  would take  on                                                              
such a case considering its budget constraints.                                                                                 
                                                                                                                                
SENATOR FRENCH  said it would  not.  He  said the addition  to the                                                              
whistleblower statute is a great improvement.                                                                                   
                                                                                                                                
SENATOR THERRIAULT  said, as past  Chair of the LBA  Committee, he                                                              
would have asked  the auditor whether the report  was provided the                                                              
next day  or whether  the employees  were cooperating.   He  noted                                                              
the  thing  that   differentiates  Legislative  Finance   and  the                                                              
Legislative  Budget and  Audit  Committee  from other  legislative                                                              
committees   is  that   those  shops   are  professional   ongoing                                                              
operations.   The  make-up  of  legislative committees  and  staff                                                              
changes  regularly.    He  asked members  to  recognize  that  the                                                              
directors  of both  agencies  would be  involved  in the  decision                                                              
about whether or not a violation occurred.                                                                                      
                                                                                                                                
SENATOR  GREEN added  that she has  been impressed  that an  audit                                                              
might take  six months to  a year and  information is  not usually                                                              
expected within the same day.                                                                                                   
                                                                                                                                
SENATOR  THERRIAULT  made  a  motion to  move  CSSB  45(JUD)  from                                                              
committee with four  zero fiscal notes and the  understanding that                                                              
committee  staff  would review  the  final  work product  when  it                                                              
comes  back from  the Division  of  Legal Services  and, if  staff                                                              
thinks  it contains  anything more  than what  was discussed,  the                                                              
bill would be brought back before the committee.                                                                                
                                                                                                                                
CHAIR  SEEKINS  announced  that  with  no  objection,  the  motion                                                              
carried.  There  being no  further  business  to come  before  the                                                              
committee, he adjourned the meeting at 3:22 p.m.                                                                                

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