Legislature(2003 - 2004)
03/19/2003 01:32 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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.