Legislature(2005 - 2006)BUTROVICH 205

05/01/2005 04:00 PM JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Moved CSSB 125(JUD) Out of Committee
Heard & Held
Moved CSSB 186(JUD) Out of Committee
Heard & Held
Scheduled But Not Heard
Scheduled But Not Heard
Scheduled But Not Heard
Scheduled But Not Heard
Scheduled But Not Heard
Scheduled But Not Heard
+ Bills Previously Heard/Scheduled TELECONFERENCED
<Order listed does not indicated order
each bill will be taken up>
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                          May 1, 2005                                                                                           
                           4:41 p.m.                                                                                            
MEMBERS PRESENT                                                                                                               
Senator Ralph Seekins, Chair                                                                                                    
Senator Charlie Huggins, Vice Chair                                                                                             
Senator Gene Therriault                                                                                                         
Senator Hollis French                                                                                                           
Senator Gretchen Guess                                                                                                          
MEMBERS ABSENT                                                                                                                
All members present                                                                                                             
COMMITTEE CALENDAR                                                                                                            
SENATE BILL NO. 125                                                                                                             
"An Act  relating to the licensing,  regulation, enforcement, and                                                               
appeal  rights of  ambulatory surgical  centers, assisted  living                                                               
homes, child  care facilities,  child placement  agencies, foster                                                               
homes,  free-standing   birth  centers,  home   health  agencies,                                                               
hospices  or  agencies  providing  hospice  services,  hospitals,                                                               
intermediate   care  facilities   for   the  mentally   retarded,                                                               
maternity  homes,  nursing  facilities,  residential  child  care                                                               
facilities, residential psychiatric  treatment centers, and rural                                                               
health clinics; relating to criminal  history requirements, and a                                                               
registry, regarding certain  licenses, certifications, approvals,                                                               
and  authorizations  by  the  Department  of  Health  and  Social                                                               
Services;  making conforming  amendments;  and  providing for  an                                                               
effective date."                                                                                                                
     MOVED CSSB 125(JUD) OUT OF COMMITTEE                                                                                       
SENATE BILL NO. 127                                                                                                             
"An Act prohibiting a public  officer from taking official action                                                               
regarding a matter in which  the public officer has a significant                                                               
financial interest;  and defining 'official action'  for purposes                                                               
of  the chapter  generally referred  to as  the Executive  Branch                                                               
Ethics Act."                                                                                                                    
     HEARD AND HELD                                                                                                             
SENATE BILL NO. 186                                                                                                             
"An Act relating to the Alaska Executive Branch Ethics Act."                                                                    
     MOVED CSSB 186(JUD) OUT OF COMMITTEE                                                                                       
SENATE BILL NO. 187                                                                                                             
"An Act relating to legislative  ethics open meetings guidelines,                                                               
to  the public  members of  the Select  Committee on  Legislative                                                               
Ethics, to  alternate members  of the  legislative subcommittees,                                                               
to  advisory  opinions,  and   to  confidential  information  and                                                               
proceedings   regarding   legislative   ethics   complaints   and                                                               
     HEARD AND HELD                                                                                                             
CS FOR HOUSE BILL NO. 33(FIN)                                                                                                   
"An Act  relating to required  notification of the  Department of                                                               
Commerce,  Community, and  Economic Development,  economic effect                                                               
statements,  and regulatory  flexibility  analyses regarding  the                                                               
adoption  of regulations  that may  govern the  conduct of  small                                                               
businesses;  relating to  a private  cause of  action, regulation                                                               
invalidation,   and   judicial   review   related   to   required                                                               
notification,   economic   effect  statements,   and   regulatory                                                               
flexibility  analyses for  the adoption  of regulations  that may                                                               
govern  the conduct  of small  businesses; and  providing for  an                                                               
effective date."                                                                                                                
     SCHEDULED BUT NOT HEARD                                                                                                    
CS FOR HOUSE BILL NO. 81(L&C)                                                                                                   
"An  Act establishing  an administrative  fine and  procedure for                                                               
construction  contractors  in certain  circumstances;  increasing                                                               
the amount of a civil penalty  for persons acting in the capacity                                                               
of contractors  or home inspectors;  modifying the elements  of a                                                               
crime   involving   contractor   registration   and   residential                                                               
contractors; modifying  the exemptions  from regulation  under AS                                                               
08.18 for contractors; and  exempting the administrative hearings                                                               
for imposing  an administrative fine on  construction contractors                                                               
from  the  hearings conducted  by  the  office of  administrative                                                               
hearings in the Department of Administration."                                                                                  
     SCHEDULED BUT NOT HEARD                                                                                                    
CS FOR HOUSE BILL NO. 149(FIN) am                                                                                               
"An  Act  relating  to controlled  substances;  relating  to  the                                                               
crimes of manslaughter,  endangering the welfare of  a child, and                                                               
misconduct  involving a  controlled  substance;  relating to  the                                                               
manufacture of  methamphetamine and to the  sale, possession, and                                                               
delivery  of  certain  substances  and  precursors  used  in  the                                                               
manufacture  of  methamphetamine;  relating  to  listing  certain                                                               
anabolic steroids as controlled  substances; and providing for an                                                               
effective date."                                                                                                                
     SCHEDULED BUT NOT HEARD                                                                                                    
CS FOR HOUSE BILL NO. 183(JUD) am                                                                                               
"An Act relating to the  use of campaign contributions for shared                                                               
campaign  activity   expenses  and  to  reimbursement   of  those                                                               
expenses;  and  amending  the  definition  of  'contribution'  in                                                               
regard  to  sharing  fundraising  lists  between  candidates  and                                                               
political parties without compensation."                                                                                        
     SCHEDULED BUT NOT HEARD                                                                                                    
HOUSE BILL NO. 184 am                                                                                                           
"An Act relating to firearms."                                                                                                  
     SCHEDULED BUT NOT HEARD                                                                                                    
CS FOR HOUSE BILL NO. 210(JUD)                                                                                                  
"An Act relating  to blood testing of certain  persons alleged to                                                               
have committed  certain offenses  directed toward  peace officers                                                               
or emergency workers."                                                                                                          
     SCHEDULED BUT NOT HEARD                                                                                                    
PREVIOUS COMMITTEE ACTION                                                                                                     
BILL: SB 125                                                                                                                  
SHORT TITLE: LICENSING MEDICAL OR CARE FACILITIES                                                                               
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR                                                                                    
03/02/05       (S)       READ THE FIRST TIME - REFERRALS                                                                        
03/02/05       (S)       HES, JUD, FIN                                                                                          
03/14/05       (S)       HES AT 1:30 PM BUTROVICH 205                                                                           
03/14/05       (S)       Heard & Held                                                                                           
03/14/05       (S)       MINUTE(HES)                                                                                            
04/06/05       (S)       HES AT 1:30 PM BUTROVICH 205                                                                           
04/06/05       (S)       Heard & Held                                                                                           
04/06/05       (S)       MINUTE(HES)                                                                                            
04/13/05       (S)       HES AT 2:00 PM BUTROVICH 205                                                                           
04/13/05       (S)       Moved CSSB 125(HES) Out of Committee                                                                   
04/13/05       (S)       MINUTE(HES)                                                                                            
04/14/05       (S)       HES RPT CS 3DP 2NR NEW TITLE                                                                           
04/14/05       (S)       DP: DYSON, WILKEN, GREEN                                                                               
04/14/05       (S)       NR: ELTON, OLSON                                                                                       
04/20/05       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
04/20/05       (S)       Heard & Held                                                                                           
04/20/05       (S)       MINUTE(JUD)                                                                                            
04/23/05       (S)       JUD AT 4:00 PM BUTROVICH 205                                                                           
04/23/05       (S)       -- Rescheduled from 04/22/05 --                                                                        
04/30/05       (S)       JUD AT 9:00 AM BUTROVICH 205                                                                           
04/30/05       (S)       Scheduled But Not Heard                                                                                
05/01/05       (S)       JUD AT 4:00 PM BUTROVICH 205                                                                           
BILL: SB 127                                                                                                                  
SHORT TITLE: EXEC. BRANCH ETHICS: FINANCIAL INTERESTS                                                                           
SPONSOR(s): SENATOR(s) FRENCH                                                                                                   
03/03/05       (S)       READ THE FIRST TIME - REFERRALS                                                                        
03/03/05       (S)       STA, JUD                                                                                               
04/26/05       (S)       STA AT 3:30 PM BELTZ 211                                                                               
04/26/05       (S)       Moved SB 127 Out of Committee                                                                          
04/26/05       (S)       MINUTE(STA)                                                                                            
04/27/05       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
04/27/05       (S)       Scheduled But Not Heard                                                                                
04/28/05       (S)       STA RPT 1DP 3NR                                                                                        
04/28/05       (S)       NR: THERRIAULT, HUGGINS, WAGONER                                                                       
04/28/05       (S)       DP: ELTON                                                                                              
04/28/05       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
04/28/05       (S)       Scheduled But Not Heard                                                                                
04/29/05       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
04/29/05       (S)       EXECUTIVE BRANCH ETHICS                                                                                
04/30/05       (S)       JUD AT 9:00 AM BUTROVICH 205                                                                           
04/30/05       (S)       Scheduled But Not Heard                                                                                
05/01/05       (S)       JUD AT 4:00 PM BUTROVICH 205                                                                           
BILL: SB 186                                                                                                                  
SHORT TITLE: EXECUTIVE BRANCH ETHICS                                                                                            
SPONSOR(s): SENATOR(s) SEEKINS                                                                                                  
04/22/05       (S)       READ THE FIRST TIME - REFERRALS                                                                        
04/22/05       (S)       STA, JUD                                                                                               
04/26/05       (S)       STA AT 3:30 PM BELTZ 211                                                                               
04/26/05       (S)       Moved CSSB 186(STA) Out of Committee                                                                   
04/26/05       (S)       MINUTE(STA)                                                                                            
04/27/05       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
04/27/05       (S)       Scheduled But Not Heard                                                                                
04/28/05       (S)       STA RPT CS 1DNP 3NR NEW TITLE                                                                          
04/28/05       (S)       NR: THERRIAULT, WAGONER, HUGGINS                                                                       
04/28/05       (S)       DNP: ELTON                                                                                             
04/28/05       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
04/28/05       (S)       Scheduled But Not Heard                                                                                
04/29/05       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
04/29/05       (S)       LEGISLATIVE ETHICS/MEETINGS                                                                            
04/30/05       (S)       JUD AT 9:00 AM BUTROVICH 205                                                                           
04/30/05       (S)       Scheduled But Not Heard                                                                                
05/01/05       (S)       JUD AT 4:00 PM BUTROVICH 205                                                                           
BILL: SB 187                                                                                                                  
SHORT TITLE: LEGISLATIVE ETHICS/MEETINGS                                                                                        
SPONSOR(s): SENATOR(s) SEEKINS                                                                                                  
04/22/05       (S)       READ THE FIRST TIME - REFERRALS                                                                        
04/22/05       (S)       STA, JUD                                                                                               
04/26/05       (S)       STA AT 3:30 PM BELTZ 211                                                                               
04/26/05       (S)       Moved CSSB 187(STA) Out of Committee                                                                   
04/26/05       (S)       MINUTE(STA)                                                                                            
04/27/05       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
04/27/05       (S)       Scheduled But Not Heard                                                                                
04/28/05       (S)       STA RPT CS 1DNP 2NR 1AM SAME TITLE                                                                     
04/28/05       (S)       AM: THERRIAULT                                                                                         
04/28/05       (S)       DNP: ELTON                                                                                             
04/28/05       (S)       NR: WAGONER, HUGGINS                                                                                   
04/28/05       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
04/28/05       (S)       Scheduled But Not Heard                                                                                
04/29/05       (S)       JUD AT 8:30 AM BUTROVICH 205                                                                           
04/30/05       (S)       JUD AT 9:00 AM BUTROVICH 205                                                                           
04/30/05       (S)       Scheduled But Not Heard                                                                                
05/01/05       (S)       JUD AT 4:00 PM BUTROVICH 205                                                                           
WITNESS REGISTER                                                                                                              
Ms. Virginia Stonkas                                                                                                            
Division of Public Health                                                                                                       
Department of Health & Social Services                                                                                          
PO Box 110601                                                                                                                   
Juneau, AK  99801-0601                                                                                                          
POSITION STATEMENT:  Commented on SB 125                                                                                      
Ms. Stacie Kraly, Senior Assistant Attorney General                                                                             
Department of Law                                                                                                               
PO Box 110300                                                                                                                   
Juneau, AK  99811-0300                                                                                                          
POSITION STATEMENT:  Commented on SB 125                                                                                      
Mr. Merle Thompson                                                                                                              
Susitna Valley, Alaska                                                                                                          
POSITION STATEMENT:  Testified in opposition to SB 186                                                                        
ACTION NARRATIVE                                                                                                              
CHAIR  RALPH   SEEKINS  called  the  Senate   Judiciary  Standing                                                             
Committee meeting to  order at 4:41:08 PM.  Present were Senators                                                             
Gretchen Guess, Hollis French,  Gene Therriault, Charlie Huggins,                                                               
and Chair Ralph Seekins.                                                                                                        
          SB 125-LICENSING MEDICAL OR CARE FACILITIES                                                                       
4:41:08 PM                                                                                                                    
CHAIR RALPH SEEKINS announced SB 125 to be up for consideration.                                                                
SENATOR  CHARLIE   HUGGINS  moved  Version  \I   as  the  working                                                               
CHAIR SEEKINS objected for the purpose of discussion.                                                                           
4:42:10 PM                                                                                                                    
MS.   VIRGINIA  STONKAS,   Division  of   Public  Health   (DPH),                                                               
Department of Health and Social  Services (DHSS), advised Version                                                               
\I added a couple of amendments  that were adopted. Section 6 was                                                               
added through  a recommendation by the  Legislative Legal Affairs                                                               
Agency.  The  new  language  was  added to  comply  with  SB  125                                                               
licensing entities  in lieu of individuals.  The second amendment                                                               
is  on Page  23, line  13. The  concern was  for a  definition of                                                               
entities in regulation. The third  amendment is on Page 25, lines                                                               
14-16. Existing  language was  cut and pasted  into the  bill for                                                               
clarification  that when  licensing an  entity they  will not  be                                                               
negatively affected in  their ability to do  business. The fourth                                                               
amendment is to  ensure compliance with AS 47.33.  Amendment 5 is                                                               
on  Page  38,  line  28  to ensure  assisted  living  is  clearly                                                               
referenced  in terms  of  long-term care  and  nursing homes  and                                                               
assisted living.                                                                                                                
4:45:59 PM                                                                                                                    
CHAIR  SEEKINS removed  his objection.  The committee  would work                                                               
with Version \I for the purpose of this meeting.                                                                                
SENATOR  GENE THERRIAULT  asked  Ms. Stonkas  whether there  were                                                               
still  concerns   about  assisted   living  homes   with  certain                                                               
provisions in SB 125.                                                                                                           
MS.  STONKAS  responded  no.  Concerns in  the  past  related  to                                                               
costing rather than structure.                                                                                                  
CHAIR SEEKINS  understood the structural side  had been addressed                                                               
yet the fee schedule is a  different matter that is not addressed                                                               
in the bill.                                                                                                                    
MS. STONKAS  added they were  never meant to  be part of  SB 125.                                                               
Legislative Legal Affairs submitted  another set of amendments to                                                               
4:49:26 PM                                                                                                                    
CHAIR  SEEKINS  moved  Amendment  1. He  also  objected  for  the                                                               
purpose of discussion.                                                                                                          
            Amendment to CSSB 125 (JUD) (version I)                                                                         
Page 4, line 15 through page 5, line 28:                                                                                        
     Delete all material.                                                                                                       
Renumber bill sections accordingly.                                                                                             
Page 8, line 15 through page 9, line 30:                                                                                        
     Delete all material.                                                                                                       
Renumber bill sections accordingly.                                                                                             
Page 13, line 31, following "jurisdiction":                                                                                     
     Insert "or to have committed medical assistance fraud under                                                                
AS  47.05.210 or  a substantially  similar  provision in  another                                                               
Page 15, line 23, following "jurisdiction":                                                                                     
     Insert "or to have committed medical assistance fraud under                                                                
AS  47.05.210 or  a substantially  similar  provision in  another                                                               
Page 17, following line 26:                                                                                                     
     Insert "Sec. 47.05.350.  Immunity.  An entity or individual                                                              
service  provider  that  obtains information  about  an  employee                                                               
under a  criminal history check  under AS 47.05.310 may  use that                                                               
information  only  as  provided  in regulations  adopted  by  the                                                               
department  under  AS 47.05.320.    However,  if that  entity  or                                                               
individual   service   provider   reasonably   relies   on   that                                                               
information in denying employment  for an individual selected for                                                               
hire as  an employee,  including during  a period  of provisional                                                               
employment,  the entity  or individual  service  provider is  not                                                               
liable  in an  action  brought  by the  individual  based on  the                                                               
employment determination resulting form the information."                                                                       
Page 33, line 20:                                                                                                               
     Delete "applies"                                                                                                           
     Insert "and AS 44.62.330 - 44.62.630 apply"                                                                                
Page 34, lines 9 - 15:                                                                                                          
     Delete all material.                                                                                                       
Page 39, line 22, following "to", through line 30:                                                                              
     Delete all material and insert "assisted living homes as                                                                   
defined in AS 47.32.900."                                                                                                       
Page 42, following line 9:                                                                                                      
     Insert a new bill section to read:                                                                                         
   "*Sec. 44.  AS 14.43.148(h)(1)(B)(iii) is repealed."                                                                       
Renumber the following bill sections accordingly.                                                                               
Page 42, following line 16:                                                                                                     
     Insert a new bill section to read:                                                                                         
   "* Sec. 47.  AS 25.27.244(s)(2) is repealed."                                                                              
Page 43, line 16:                                                                                                               
     Delete "36"                                                                                                                
     Insert "37"                                                                                                                
Page 43, line 17:                                                                                                               
     Delete "36"                                                                                                                
     Insert "37"                                                                                                                
Page 43, line 19                                                                                                                
     Delete "36"                                                                                                                
     Insert "37"                                                                                                                
Page 43, line 26:                                                                                                               
     Delete "36"                                                                                                                
     Insert "37"                                                                                                                
Page 43, line 31:                                                                                                               
     Delete "36"                                                                                                                
     Insert "37"                                                                                                                
MS. STONKAS advised the revisions had to do with technicalities                                                                 
and consistency throughout the bill. She asked that Stacy Kraly                                                                 
explain the changes.                                                                                                            
MS. STACEY  KRALY, senior assistant attorney  general, Department                                                               
of  Law (DOL),  explained  the  revisions are  in  response to  a                                                               
lengthy  bill with  a  lot of  conforming  amendments. The  first                                                               
revision deletes Section 6.                                                                                                     
4:52:07 PM                                                                                                                    
The second revision is a conforming edit with respect to the                                                                    
change on Page 9.                                                                                                               
SENATOR FRENCH:                                                                                                                 
      Ms. Kraly, both of the revisions have the affect of                                                                       
         taking out the change to a license issued to a                                                                         
     childcare facility.  Is that  going to be  relocated or                                                                    
     what is happening to both of those changes?                                                                                
MS. KRALY  said the revision  goes back to  her misunderstanding.                                                               
This  particular statute  deals with  individual property  rights                                                               
and  the  DOL  is  no   longer  licensing  individuals  they  are                                                               
licensing entities. They won't be  re codified or moved somewhere                                                               
else they will be repealed in total.                                                                                            
4:53:50 PM                                                                                                                    
The third and  fourth revisions are to include  Medicaid fraud as                                                               
an inclusion  on the  abuse registry.  If somebody  is prosecuted                                                               
for Medicaid fraud the DOL wants  that to be part of the criminal                                                               
background check.                                                                                                               
SENATOR FRENCH:                                                                                                                 
     Ms. Kraly  on Page 13  what I have  in front of  me now                                                                    
     reads,  "the  department  may  not  issue  or  renew  a                                                                    
     license   or  certification   for  an   entity  if   an                                                                    
     individual is applying for  a license, license renewal,                                                                    
     certification, or certification  renewal for the entity                                                                    
     and  that  individual has  been  found  by a  court  or                                                                    
     agency  of   this  or  another  jurisdiction   to  have                                                                    
     neglected, abused,  or exploited a child  or vulnerable                                                                    
     adult  under AS  47.10,  AS  47.24, or  AS  47.62 or  a                                                                    
     substantially    similar     provision    in    another                                                                    
     jurisdiction." Is  it the entity  may not  have someone                                                                    
     make  this  application,  the  person  can't  make  the                                                                    
     application, and  the person can't  be part of  a group                                                                    
     that... It's just not clear to me how this works.                                                                          
MS.  KRALY explained  it  would be  further  developed through  a                                                               
regulatory  process similar  for  what is  done  for an  assisted                                                               
living  home.  The  premise  is  that the  entity  would  be  the                                                               
licensed  structure. With  respect to  the hiring  decisions, the                                                               
entity  would  submit  a  name  for a  background  check  for  an                                                               
individual to see whether they  were barred from employment under                                                               
a mandatory barrier crime list.                                                                                                 
SENATOR FRENCH said  it sounds like the entity  can't have anyone                                                               
with a criminal history working for  the entity or applying for a                                                               
license for the entity.                                                                                                         
CHAIR SEEKINS said  it looks like the individual  in question can                                                               
not own an entity or be  an officer, director, partner, member or                                                               
principal of  a business or  organization that owns an  entity if                                                               
any of the things were there.                                                                                                   
SENATOR  FRENCH restated  it was  unclear as  to how  it operates                                                               
with the licensing statute.                                                                                                     
4:56:37 PM                                                                                                                    
MS. KRALY said it is very similar  to what is being done with the                                                               
assisted living statute and the foster care statute:                                                                            
     If you  have somebody working  with you or  residing in                                                                    
     your home  who has regular contact  with an individual,                                                                    
     they  must submit  to a  criminal background  check and                                                                    
     that  criminal  background  check will  show...  if  it                                                                    
     shows  a conviction  for a  certain  listed crime  then                                                                    
     that  person cannot  be employed  or have  any sort  of                                                                    
     function within  the entity. There is  another rigorous                                                                    
     list  called "permissive  barrier  crimes" where  there                                                                    
     would be  the potential that  if you were 20  years old                                                                    
     and got into a bar fight  in college and you are now 35                                                                    
     and  have not  had  any trouble  since  that time,  you                                                                    
     would  still be  able to  become a  part in  a licensed                                                                    
     entity. The  basic structure of  what we  envisioned is                                                                    
     the nuts and  bolts of this will be  dealt with through                                                                    
     the regulations,  which is currently  how we  do things                                                                    
     for  the assisted  living homes  and it  seems to  work                                                                    
     pretty well.                                                                                                               
4:58:17 PM                                                                                                                    
SENATOR  FRENCH  said it  seems  clumsily  drafted but  the  idea                                                               
behind it seems sound.                                                                                                          
MS. KRALY continued  Page 17 following line  26 (immunity clause)                                                               
was created  to remove the  immunity provision from  the criminal                                                               
background check.                                                                                                               
5:00:12 PM                                                                                                                    
SENATOR GUESS  asked Ms.  Kraly to  explain the  term "reasonably                                                               
MS. KRALY  responded "reasonably  relies" means when  an employee                                                               
presents a fingerprint card for a  background check and it is run                                                               
through the  state process the  employer reviews  the information                                                               
and  makes a  decision. If  they decide  not to  employ somebody,                                                               
then  the individual  cannot file  suit  against the  prospective                                                               
SENATOR  GUESS asked  if  something shows  up  on the  background                                                               
check  that wouldn't  exclude the  applicant,  does the  employer                                                               
have a right to not employ the person.                                                                                          
MS. KRALY  said the decision  would be  left up to  the employer.                                                               
The  immunity  attaches  only  to  the  case  if  an  applicant's                                                               
background check flags a barrier crime.                                                                                         
5:03:08 PM                                                                                                                    
SENATOR GUESS asked whether there would  be anything come up in a                                                               
criminal  background  check that  would  not  be a  reason  under                                                               
statute for them  to hire the person. She is  worried this allows                                                               
open immunity.  The employer could use  information they wouldn't                                                               
normally have to not hire the person.                                                                                           
MS.  KRALY  said  the  distinction is  a  low  level  misdemeanor                                                               
wouldn't be listed as a permissive  crime. If the decision not to                                                               
employ was based  upon something that was not  listed through the                                                               
regulatory process,  the employer  couldn't use  that as  a basis                                                               
for preventing employment.                                                                                                      
5:04:59 PM                                                                                                                    
CHAIR SEEKINS asked Ms. Kraly  whether the employer would be able                                                               
to see everything on the criminal history check.                                                                                
MS.  KRALY admitted  the  employer would  see  everything on  the                                                               
background check.                                                                                                               
CHAIR SEEKINS  asked whether a criminal  history background check                                                               
was public information.                                                                                                         
MS. KRALY said not as readily  as this process would envision but                                                               
yes, it is public information.                                                                                                  
CHAIR  SEEKINS  said  this  would  be putting  the  onus  on  the                                                               
employer to do  a reasonably available background  check. If that                                                               
employer wanted to  preclude someone from being  hired they could                                                               
already do that.                                                                                                                
5:06:54 PM                                                                                                                    
SENATOR GUESS expressed concern with  the immunity. She said this                                                               
would give the  employer the ability to look  at someone's entire                                                               
background  and deny  him or  her employment  while being  immune                                                               
from a  lawsuit. She  said the immunity  clause seems  to provide                                                               
immunity regardless  of the  reason the  employer decides  not to                                                               
5:08:56 PM                                                                                                                    
CHAIR SEEKINS disagreed.  He read it as the employer  may use the                                                               
information  only  as  provided  in regulations  adopted  by  the                                                               
MS. KRALY agreed. There are  sufficient sideboards in the bill to                                                               
ensure the  immunity that  is being  provided addresses  only the                                                               
use of the information from the criminal background check.                                                                      
SENATOR   FRENCH   said   it  appears   to   be   two   different                                                               
interpretations happening. If the  second sentence said, "however                                                               
if the individual  or service provider reasonably  relies on that                                                               
information only  in the manner  provided in  regulations adopted                                                               
by  the  department  and  denies  employment  for  an  individual                                                               
selected for  hire as an employee,  the entity is not  liable for                                                               
any action." What  Senator Guess is saying is  that someone could                                                               
misread that  information and mistake  a charge for  a conviction                                                               
or they could  decide that a 15-year-old DWI is  a barrier crime.                                                               
This is all based on  somebody's interpretation of someone else's                                                               
criminal history.                                                                                                               
5:12:44 PM                                                                                                                    
CHAIR SEEKINS  said an employer  always has to  determine whether                                                               
or  not the  person is  of good  character. He  said an  employer                                                               
should  be  held  harmless  for  making a  decision  based  on  a                                                               
background check.  He said  he has no  objection to  a conceptual                                                               
amendment to  clarify the employer  can only use  the information                                                               
in the manner  prescribed by the regulations. He  asked Ms. Kraly                                                               
whether she objected to the proposed conceptual amendment.                                                                      
MS. KRALY said no.                                                                                                              
CHAIR SEEKINS  announced the conceptual amendment  was adapted to                                                               
Amendment 1.                                                                                                                    
Ms.  Kraly  continued explaining  the  revisions.  Last week  the                                                               
committee wanted to make sure  that "assisted living" was defined                                                               
and  so  that was  added  and  it  is consistent  throughout  the                                                               
5:15:57 PM                                                                                                                    
After  deleting  Section  6  there required  an  inclusion  of  a                                                               
repealer on Page  42. The change on  Page 42, line 16  is to make                                                               
sure  the corresponding  section in  the back  was repealed.  The                                                               
remaining revisions would be numbering issues.                                                                                  
CHAIR  SEEKINS  removed  his objection  and  hearing  no  others,                                                               
Amendment 1 was adopted.                                                                                                        
SENATOR  HUGGINS   moved  CSSB   125(JUD)  from   committee  with                                                               
individual  recommendations and  attached  fiscal note(s).  There                                                               
being no objection, the motion carried.                                                                                         
Chair Seekins announced a brief recess at 5:17:37 PM.                                                                         
        SB 127-EXEC. BRANCH ETHICS: FINANCIAL INTERESTS                                                                     
5:18:47 PM                                                                                                                    
CHAIR RALPH SEEKINS announced SB  127 to be up for consideration.                                                               
He  asked Senator  French to  describe  the approach  he took  to                                                               
define unethical  conduct with regard to  the potential violation                                                               
of  AS 39.52.110(b)  of  the  current statute.  He  asked him  to                                                               
compare SB 127 with SB 186.                                                                                                     
SENATOR  HOLLIS  FRENCH  said  both  bills tend  to  clear  up  a                                                               
loophole that the former Attorney  General Renkes case brought to                                                               
light. SB 186 takes out the  word "substantial" and says there is                                                               
no impropriety.  Both bills  say there is  no impropriety  if the                                                               
action or influence would have an insignificant effect.                                                                         
5:21:26 PM                                                                                                                    
SB 127 takes the question  of interests that are insignificant or                                                               
possessed by the public or large  class of persons. SB 186 leaves                                                               
it alone in  Section 1. Two of the sections  are very similar and                                                               
of  the  two approaches  SB  186  is  right because  it  includes                                                               
financial interest.  If a person has  stock in a company  that is                                                               
going to build a gas pipeline  and also owned a home in Fairbanks                                                               
and that person  voted to build the pipeline, the  value of every                                                               
house in  Fairbanks would go up  and that would be  okay. But the                                                               
value of the  person's stock would also go up  and it's important                                                               
to differentiate  the two. The  person could be charged  with two                                                               
violations but  would be  acquitted on  the first  charge because                                                               
everyone has that same interest.                                                                                                
5:25:29 PM                                                                                                                    
SENATOR FRENCH  said he has  difficulty interpreting  how Section                                                               
2, Paragraph  4 of SB 186  would work. He asked  Chair Seekins to                                                               
CHAIR SEEKINS said determining the value  of a stock of a company                                                               
by  percentage is  difficult. Zero  percent of  nothing is  still                                                               
nothing.  Most people  can determine  how many  dollars something                                                               
is. If a public officer owns 50  percent of a stock and the value                                                               
is less than $10,000 than it is no impropriety.                                                                                 
SENATOR FRENCH  said if the  public officer owns one-half  of one                                                               
percent  of a  high value  stock it  could be  worth ten  million                                                               
dollars. That would be impropriety.                                                                                             
CHAIR  SEEKINS added  that would  be  an equity  interest in  the                                                               
business  worth  less  than  $10,000. SB  186  is  attempting  to                                                               
establish equity value in dollars.                                                                                              
SENATOR FRENCH asked whether a person  would have to meet all the                                                               
requirements of  Section 2, Paragraph 4  subparagraphs (A)-(H) in                                                               
order to be exempt from liability.                                                                                              
CHAIR SEEKINS  said yes. He  said unless a person  "jumps through                                                               
all the hoops", s/he must do something about it.                                                                                
5:27:43 PM                                                                                                                    
SENATOR FRENCH voiced agreement with  the section. He said SB 186                                                               
looks to be better drafted than SB 127.                                                                                         
CHAIR SEEKINS  voiced the  difference between SB  127 and  SB 186                                                               
was in the dollar value.                                                                                                        
SENATOR FRENCH agreed.                                                                                                          
     It  sounds  like the  only  place  that would  have  an                                                                    
     application is not  in a stock, it's as if  you owned a                                                                    
     slice  of  Joe's  Tire Company  in  Fairbanks  and  you                                                                    
     think, with the gas line  coming you're going to sell a                                                                    
     bunch  of tires.  And if  you own  a little  tiny slice                                                                    
     it's not a  factor but if you own a  big slice it might                                                                    
     get to be one.                                                                                                             
5:29:38 PM                                                                                                                    
CHAIR SEEKINS said that's true.                                                                                                 
     But what is a slice?  It could be a conceptual company.                                                                    
     We have  to have  some real things  to look  at. That's                                                                    
     the hard part  of trying to set up a  bright line. When                                                                    
     we shine  the light on it  there should be more  than a                                                                    
     hallucination. It  has to be  something real to  take a                                                                    
     look at. And that's what I'm  trying to boil it down to                                                                    
     is something  that has three dimensions.  The hard part                                                                    
     in trying  to set this  is where to  put it and  how to                                                                    
     define it.                                                                                                                 
SENATOR FRENCH said it is a good and thorough series of hoops.                                                                  
Chair Seekins announced a recess at 5:30:51 PM.                                                                               
Chair Seekins reconvened the meeting at 6:43:03 PM.                                                                           
CHAIR  SEEKINS  advised  before   the  break  the  committee  was                                                               
discussing the  similarities and  differences between SB  127 and                                                               
SB 186.                                                                                                                         
6:43:27 PM                                                                                                                    
SENATOR FRENCH  noted another  difference is on  Page 2,  lines 3                                                               
and 4.  SB 186  has an  exception for those  interests held  in a                                                               
blind trust and interests where  the public officer does not have                                                               
management control over the financial interests.                                                                                
CHAIR SEEKINS  stated in order to  set up a blind  trust a person                                                               
would have  to have assets  in excess of $1,000,000.  There could                                                               
be a potential conflict of  interest but it would not necessarily                                                               
have  to preclude  the public  officer from  making decisions  if                                                               
they did not  have their hands on the investment.  In the case of                                                               
a  public  officer  advising  their superior  of  a  conflict  of                                                               
interest there may be a  way to arrange their financial interests                                                               
so  that  the  public  officer  could  continue  working  on  the                                                               
particular  project for  the state.  He said  SB 186  attempts to                                                               
find  a  balance  for  the  public  officer  to  continue  making                                                               
decisions for  the State  of Alaska. He  asked Barbara  Richey to                                                               
explain how it is done currently.                                                                                               
6:46:26 PM                                                                                                                    
MS. BARBARA RICHEY, chief  assistant attorney general, Department                                                               
of Law (DOL), introduced herself as  the head of a section called                                                               
Opinions, Appeals, and Ethics.                                                                                                  
CHAIR  SEEKINS  asked  the  course  when  a  person  discloses  a                                                               
potential violation of ethics or conflict of interest.                                                                          
MS.  RICHEY said  often  the inquiries  come  via the  designated                                                               
ethics supervisors. Ethics are very  fact specific so they gather                                                               
all  of  the  facts  first.  They  research  the  situation  both                                                               
factually and legally and do an advisory opinion.                                                                               
CHAIR  SEEKINS  said  Section  17  of  SB  186  states  even  the                                                               
personnel  board  may  order  the same  type  of  divestiture  or                                                               
establishment as part of their remedy.  He said a person could go                                                               
to their designated ethics supervisor  and the supervisor at that                                                               
time could advise them on how to avoid the conflict.                                                                            
MS.  RICHEY  noted a  good  example  was Attorney  General  David                                                               
Marquez, when  he was being  considered for  possible appointment                                                               
as  attorney general,  made  disclosure of  all  of his  personal                                                               
financial interests and asked for a review and an opinion.                                                                      
6:50:18 PM                                                                                                                    
SENATOR FRENCH  said management control  was a  rational approach                                                               
so  long as  the asset  in question  wasn't one  that the  public                                                               
officer put in to the account.                                                                                                  
CHAIR SEEKINS asserted once that  person puts it into a brokerage                                                               
fund it becomes managed by someone else.                                                                                        
6:52:51 PM                                                                                                                    
SENATOR THERRIAULT said he doesn't  believe people should have to                                                               
divest  themselves of  their holdings,  especially  if they  have                                                               
owned them long term.                                                                                                           
SENATOR FRENCH  stated the issue  is not  whether they own  it or                                                               
not,  the  issue is  whether  they  use  their public  office  to                                                               
influence the investment.                                                                                                       
6:54:44 PM                                                                                                                    
CHAIR  SEEKINS speculated  a public  officer  would be  compelled                                                               
under the law to seek the advice of their designated supervisor.                                                                
MS. RICHEY agreed.                                                                                                              
CHAIR SEEKINS  continued the designated supervisor  has the right                                                               
to tell  the public officer  what to  do with their  holdings and                                                               
that person either accepts the  recommendation or doesn't perform                                                               
the job.                                                                                                                        
MS. RICHEY said correct or  they could be reassigned. The concept                                                               
is to lie out options because situations differ.                                                                                
6:56:48 PM                                                                                                                    
MS. RICHEY  commented discretionary managed accounts  occur where                                                               
the broker  makes investments  without prior  knowledge. However,                                                               
the investor receives monthly reports  and can check accounts via                                                               
the Internet.                                                                                                                   
CHAIR SEEKINS asked  whether the process of an  ethics advisor is                                                               
MS. RICHEY  answered notices of potential  violation and requests                                                               
for advice is currently confidential.                                                                                           
CHAIR SEEKINS  asked whether it  could be discoverable if  a case                                                               
was brought.                                                                                                                    
MS. RICHEY responded  it would depend on whether  the subject was                                                               
willing to waive confidentiality.                                                                                               
CHAIR SEEKINS  clarified there  would be  a traceable  history if                                                               
charges were brought.                                                                                                           
MS. RICHEY agreed.                                                                                                              
6:59:52 PM                                                                                                                    
CHAIR SEEKINS advised Senator French  that SB 186 has hurdles but                                                               
the bill also requires the subject to get advice.                                                                               
SENATOR  HUGGINS  commented  the  contents  of  the  bill  appear                                                               
MS.  RICHEY  added  another  part  of the  process  is  that  any                                                               
notices,  declaration  of potential  violation,  as  well as  any                                                               
actual  violations,  the  designated   ethics  supervisors  on  a                                                               
quarterly basis  report all  of those  to the  attorney general's                                                               
office. They  are all reviewed  and if something  is questionable                                                               
it is  followed up on.  There is also  a report to  the personnel                                                               
board, which is made public.                                                                                                    
7:02:38 PM                                                                                                                    
CHAIR  SEEKINS asked  the number  of public  employees that  fall                                                               
under the rule.                                                                                                                 
MS.  RICHEY stated  all of  them including  members of  boards or                                                               
commissions that are formed by statute.                                                                                         
SENATOR FRENCH explained  the last difference between  SB 127 and                                                               
SB 186 is the definition of official action.                                                                                    
CHAIR SEEKINS asked  Senator French to explain how  that would be                                                               
in effect.                                                                                                                      
SENATOR FRENCH  said the impetus  for the re-definition  came out                                                               
of the (former Attorney General)  Renkes affair. He said he wants                                                               
to make  sure employees know  most of  the things they  do during                                                               
the course of the day is official action.                                                                                       
MS. RICHEY commented the current  definition of "official action"                                                               
is very broad. Senator French's proposal is more articulate.                                                                    
7:06:26 PM                                                                                                                    
MS.  RICHEY said  overall she  was comfortable  with the  current                                                               
definition of official action.                                                                                                  
SENATOR  FRENCH asserted  (former Attorney  General) Renkes  felt                                                               
some things he  did was not "official action" and  so the current                                                               
definition seems open to confusion.                                                                                             
CHAIR SEEKINS said he does not  have a problem with the effort to                                                               
re-define  things so  that  people are  clearly  informed of  the                                                               
parameters. A lot of potential  ethics violations can result from                                                               
someone not having a clear understanding of the parameters.                                                                     
7:10:27 PM                                                                                                                    
SENATOR FRENCH concluded the comparison of the two bills.                                                                       
CHAIR SEEKINS  said his intent  is to reach an  agreement between                                                               
the two bills and move one forward.                                                                                             
                 SB 186-EXECUTIVE BRANCH ETHICS                                                                             
For the  purpose of research,  it is important to  review minutes                                                               
and recordings  of SB 127  one May 1,   2005 where the  two bills                                                               
were distinctly compared.                                                                                                       
CHAIR RALPH SEEKINS announced his intent  to merge SB 127 into SB
186. He  asked Ms. Barbara  Richey whether she had  concerns with                                                               
SB 186.                                                                                                                         
MS. BARBARA RICHEY, chief  assistant attorney general, Department                                                               
of Law  (DOL), said  SB 186  does a good  job of  indicating what                                                               
constitutes  a significant  personal or  financial interest  in a                                                               
matter. The changes in confidentiality work well.                                                                               
CHAIR SEEKINS moved  Version \I as the  working document. Hearing                                                               
no objections, the motion carried.                                                                                              
7:13:29 PM                                                                                                                    
MS. RICHEY continued SB 186  does not dramatically change current                                                               
law  on confidentiality  of executive  branch ethics  matters. It                                                               
sets up a  mechanism for the steps in the  event of an allegation                                                               
of ethics  violation in regards  to the governor,  the lieutenant                                                               
governor,  and  the   attorney  general.  She  said   it  was  an                                                               
improvement to the current ethics law.                                                                                          
7:15:02 PM                                                                                                                    
CHAIR SEEKINS asked  Ms. Richey how long she has  worked with the                                                               
current law.                                                                                                                    
MS. RICHEY informed  she has headed up her section  for two years                                                               
and has worked in ethics matters prior to that.                                                                                 
CHAIR SEEKINS  asked Ms. Richey  to explain her concern  with the                                                               
effective date.                                                                                                                 
MS. RICHEY said she would like  to have an opportunity to do some                                                               
training on the  changes because they are  significant. She would                                                               
like people to have a  chance to review their financial holdings.                                                               
There may also need to be some regulatory changes as well.                                                                      
7:16:37 PM                                                                                                                    
MS.  RICHEY  added  the  law  from  1986  until  1998  identified                                                               
violation of the confidentiality provisions  of the Ethics Act as                                                               
a class A misdemeanor. Legislators in  1998 felt it was too harsh                                                               
a penalty and so they took it out.                                                                                              
CHAIR  SEEKINS  advised he  was  going  to advance  a  conceptual                                                               
amendment. On Page  1, line 8; reduce the  penalty for disclosure                                                               
of ethics  violation to a $5,000  fine. He would leave  it to the                                                               
drafters to determine whether that would  be a new section of the                                                               
bill.  He asked  Ms. Richey  to  read the  statute regarding  the                                                               
penalty that the personnel board  may impose on current or former                                                               
public officers.                                                                                                                
7:18:41 PM                                                                                                                    
MS. RICHEY said the Ethics Act  itself is not a criminal statute.                                                               
The civil penalty that may be imposed is not to exceed $5,000.                                                                  
CHAIR   SEEKINS  stated   that   would  include   confidentiality                                                               
MS.  RICHEY looked  at  Oregon law  and said  they  have a  civil                                                               
penalty for  violation of  confidentiality provisions.  It reads,                                                               
"any person aggrieved as a  result of violation of this paragraph                                                               
by a  member of the  ethics commission or  it's staff may  file a                                                               
petition in court  in the judicial district  where the petitioner                                                               
resides  in order  to enforce  a civil  penalty provided  in this                                                               
7:20:53 PM                                                                                                                    
CHAIR  SEEKINS speculated  the intent  was  the aggrieved  person                                                               
could now  bring into the process  a person who was  not a member                                                               
of the personnel board or the attorney general's office.                                                                        
SENATOR  FRENCH said  his analysis  is  that in  Oregon a  person                                                               
could sue  a member of our  equivalent of the personnel  board if                                                               
one of those members leaks to the press.                                                                                        
MS. RICHEY agreed.                                                                                                              
7:22:55 PM                                                                                                                    
SENATOR THERRIAULT asked the process previous to 1998.                                                                          
MS. RICHEY  advised the Ethics  Act was  enacted in 1986  and the                                                               
misdemeanor provision was in the bill since the beginning.                                                                      
7:24:06 PM                                                                                                                    
CHAIR SEEKINS reiterated his intent  was to allow the appropriate                                                               
public entity to impose up to $5,000 penalty.                                                                                   
7:25:58 PM                                                                                                                    
SENATOR  FRENCH assumed  the enforcement  mechanism would  lie in                                                               
the attorney general's office.                                                                                                  
CHAIR SEEKINS said yes.                                                                                                         
MS. RICHEY  agreed. Under current  law the personnel  board could                                                               
impose a penalty for violation of  the chapter and the chapter is                                                               
the entire Ethics  Act. It may be possible to  give the personnel                                                               
board jurisdiction if the complainant is not a public officer.                                                                  
CHAIR SEEKINS conceptually proposed to  ask the drafters to add a                                                               
new section to  AS 39.52.440 that allows the  board the authority                                                               
to impose a  fine on any person who  violates the confidentiality                                                               
requirements of  the statute. So  a person could be  fined $5,000                                                               
on  other  violations and  also  $5,000  fine for  violating  the                                                               
confidentiality portions.                                                                                                       
7:29:30 PM                                                                                                                    
SENATOR  FRENCH disagreed.  The  personnel board  would not  have                                                               
jurisdiction over a citizen who files a complaint.                                                                              
CHAIR SEEKINS  said in the  case of someone  who is not  a public                                                               
officer then authority would be given to the DOL.                                                                               
SENATOR  FRENCH disagreed  with the  fundamental approach  of the                                                               
amendment.  There  has  only  been   one  flagrant  violation  of                                                               
confidentiality in recent history.                                                                                              
7:31:12 PM                                                                                                                    
MS.  RICHEY  said  currently  when   a  complaint  is  filed  the                                                               
complainant and the  subject of the complaint  are always advised                                                               
the complaint is confidential under law.                                                                                        
CHAIR SEEKINS  stated a  complaint must be  in writing  and under                                                               
MS. RICHEY agreed.                                                                                                              
CHAIR  SEEKINS asked  whether there  was an  actual form  that is                                                               
MS. RICHEY said it was under oath.                                                                                              
CHAIR SEEKINS  asked whether there  was anything in  statute that                                                               
bars the  complainant from disclosing  they are filing  an ethics                                                               
report before they actually file the complaint.                                                                                 
MS.  RICHEY  said no.  What  is  confidential  right now  is  the                                                               
complaint and the investigation.                                                                                                
SENATOR FRENCH  noted current law  says the attorney  general and                                                               
all  persons  contacted during  the  course  of an  investigation                                                               
shall  maintain confidentiality  regarding the  existence of  the                                                               
investigation. He  said the law  is clear the  investigations are                                                               
7:35:11 PM                                                                                                                    
CHAIR  SEEKINS  reiterated   his  earlier  conceptual  amendment.                                                               
Hearing no objections, Amendment 1 was adopted.                                                                                 
SENATOR  HUGGINS asked  Senator  French his  reservations in  the                                                               
blind trust area.                                                                                                               
SENATOR FRENCH  said the concern is  when a person puts  an asset                                                               
into a blind  trust and then later makes a  decision that affects                                                               
the stock  in the account.  As it is now,  a person has  too much                                                               
access to  their investments  and could  make decisions  based on                                                               
those assets.                                                                                                                   
7:38:22 PM                                                                                                                    
CHAIR SEEKINS  said he would  be more nervous putting  money into                                                               
an account  where he had no  control. At least a  blind trust has                                                               
more fiduciary responsibilities on the part of the trustee.                                                                     
7:43:59 PM                                                                                                                    
CHAIR SEEKINS asked for further amendments.                                                                                     
SENATOR FRENCH offered  a conceptual amendment having  to do with                                                               
the length of time  the assets are in a blind trust  and a set of                                                               
restrictions  an officer  sends along  with his/her  investments.                                                               
The assets would  have to be in  a blind trust for  six months or                                                               
greater and the management control  would be something similar to                                                               
what Attorney  General Marquez did to  put his assets out  of his                                                               
CHAIR SEEKINS  asked if he wanted  to apply that standard  to all                                                               
twenty thousand state employees.                                                                                                
SENATOR FRENCH clarified he was  trying to avoid a public officer                                                               
making  decisions  based on  their  investments  and not  on  the                                                               
public good.                                                                                                                    
CHAIR SEEKINS  said he  would consider  Amendment 3,  which would                                                               
read, "...after  consulting with  the public  officers designated                                                               
ethics supervisor the  financial interest in a matter  is held in                                                               
a blind trust  where the public officer does  not have management                                                               
control over the financial interest."                                                                                           
7:48:03 PM                                                                                                                    
MS. RICHEY  advised the committee they  were considering proposed                                                               
amendments to  AS 39.52.110 and  that is a section  that provides                                                               
overall  guidance  to  the  code   of  ethics.  She  assured  the                                                               
committee that section is followed properly.                                                                                    
Chair Seekins announced a brief recess at 7:50:48 PM.                                                                         
Chair Seekins reconvened the meeting at 7:57:12 PM.                                                                           
CHAIR SEEKINS  advised he  wants to work  with Senator  French to                                                               
craft  a good  bill. His  experience  with broker  managers is  a                                                               
person could place restrictions on what the broker can buy.                                                                     
7:58:18 PM                                                                                                                    
SENATOR FRENCH said it might be  easier to do by developing a set                                                               
of forms for each state department.                                                                                             
CHAIR SEEKINS agreed that could be done.                                                                                        
7:59:46 PM                                                                                                                    
MS.  RICHEY noted  Section 8,  sub-paragraph (A),  and asked  the                                                               
reason for the changes.                                                                                                         
CHAIR  SEEKINS   answered  they  directly  relate   to  financial                                                               
MS.  RICHEY argued  that is  true for  sub-paragraph (B)  but not                                                               
(A). She  recommended the committee  leave "personal or"  in sub-                                                               
paragraph (A).  There can be  a situation  where people are  on a                                                               
board and  if they resign from  that board it is  a personal type                                                               
8:02:06 PM                                                                                                                    
SENATOR FRENCH withdrew Amendment 2.                                                                                            
CHAIR SEEKINS proposed Amendment 3.                                                                                             
     Insert "personal, or" on Page 4, beginning of line 3.                                                                      
SENATOR THERRIAULT  asked Chair  Seekins to restate  his proposed                                                               
MS.  RICHEY   commented  it  would  allow   a  designated  ethics                                                               
supervisor to require someone to remove interests.                                                                              
Amendment 3 was adopted unanimously.                                                                                            
8:04:04 PM                                                                                                                    
CHAIR SEEKINS commented  Sections 9-13 all deal  with the process                                                               
for  the  attorney  general,  the  lieutenant  governor  and  the                                                               
SENATOR FRENCH expressed concern  regarding Section 10 and review                                                               
of the report of the independent counsel.                                                                                       
CHAIR SEEKINS  interrupted to clarify  Section 10 relates  to the                                                               
allegation of  complaint. Section 10  lays out the  process prior                                                               
and is used to determine if a complaint should be filed.                                                                        
SENATOR FRENCH  speculated a series  of newspaper  articles could                                                               
make  allegations  of  ethics violations  against  the  governor,                                                               
which  comes  to  the  attention of  the  attorney  general.  The                                                               
attorney  general would  ask the  personnel board  to appoint  an                                                               
independent counsel who would conduct  an investigation. A report                                                               
would be  submitted to the  attorney general who would  review it                                                               
to  decide  whether  the  findings  indicate  a  violation.  That                                                               
stated, he asked  why insert the judgment of a  political ally of                                                               
the subject instead  of simply handing the  completed report over                                                               
to the personnel board.                                                                                                         
8:06:56 PM                                                                                                                    
CHAIR SEEKINS  answered he would  have as much confidence  in the                                                               
attorney general as he would the politically appointed board.                                                                   
SENATOR  HUGGINS  aired  the  fail   safe  mechanism  is  nothing                                                               
precludes a  person from filing  a complaint concerning  the same                                                               
CHAIR  SEEKINS asserted  trust  must be  placed  at the  attorney                                                               
general level.                                                                                                                  
8:09:15 PM                                                                                                                    
SENATOR  GUESS   commented  since   the  investigation   and  the                                                               
conclusion is confidential there  would appear no public response                                                               
or no comment to Senator French's speculated newspaper scenario.                                                                
CHAIR   SEEKINS  said   more  than   likely  if   an  independent                                                               
investigator's  report came  back to  show no  violation, someone                                                               
would make  that fact public. In  order to stop a  public inquiry                                                               
somebody would have to disclose  the result of the investigation.                                                               
If there was  found to be probable cause the  matter then becomes                                                               
public  because  the attorney  general  would  have to  file  the                                                               
SENATOR GUESS asked  at what time does a report  of an allegation                                                               
become an allegation versus just someone's opinion.                                                                             
8:12:26 PM                                                                                                                    
SENATOR  FRENCH  answered  currently  a  person  has  to  file  a                                                               
complaint and swear  to it. SB 186 doesn't detail  how to get the                                                               
mechanism going.  He suggested adding  a probable  cause standard                                                               
in the bill for a legal reference.                                                                                              
8:14:43 PM                                                                                                                    
CHAIR SEEKINS asked Ms. Richey  her interpretation of the trigger                                                               
point for the investigation.                                                                                                    
MS. RICHEY  assessed the report part  is clear and easy,  where a                                                               
person reports  to a supervisor  under oath  and in writing  of a                                                               
potential violation. She said she  would have to think more about                                                               
allegations and newspaper  opinions because it seems  to leave it                                                               
to the discretion of the attorney  general or the governor who is                                                               
each  other's designated  ethics  supervisors  under the  current                                                               
law. For  the benefit of their  own piece of mind  and the people                                                               
of  Alaska, they  should go  to the  personnel board  and get  an                                                               
independent counsel appointed.                                                                                                  
8:17:16 PM                                                                                                                    
CHAIR SEEKINS said his intent was to allow them that discretion.                                                                
MS. RICHEY  said it happened  (in former Attorney  General Renkes                                                               
case) and the governor immediately investigated it.                                                                             
SENATOR GUESS  referred to Page  6, line  15 and noted  there are                                                               
two  campaign periods,  one when  filing for  office and  another                                                               
when filing  APOC (Alaska Public  Office Commission)  papers. She                                                               
asked which campaign period was referenced.                                                                                     
CHAIR SEEKINS responded it would  be when a person actually files                                                               
for office.                                                                                                                     
MS. RICHEY  advised "campaign  period" is  defined in  the Ethics                                                               
8:20:00 PM                                                                                                                    
SENATOR  FRENCH  detailed  currently an  interested  party  could                                                               
petition the  superior court  and the  superior court  could make                                                               
the  matter public.  He asked  the reason  for taking  that power                                                               
away from the superior court in Section 13.                                                                                     
CHAIR SEEKINS said  the intent is not to strike  the authority of                                                               
the superior court; it's just not included in the section.                                                                      
SENATOR THERRIAULT  commented the drafter  dropped it out  but it                                                               
is still included somewhere else.                                                                                               
MS. RICHEY  explained the  superior court  process. She  added it                                                               
has never been used.                                                                                                            
     The entire section  AS 39.52.335 was added  in the 1998                                                                    
     amendments to  the law.  The concept  was to  have more                                                                    
     oversight  of  what  the   attorney  general  is  doing                                                                    
     because the attorney  general has a lot  of power under                                                                    
     the Ethics  Act to  dismiss complaints or  proceed with                                                                    
     complaints.  This   is  the  one  that   triggered  the                                                                    
     quarterly  reports and  the  reports  to the  personnel                                                                    
     board that  we do every  month on what's going  on with                                                                    
     complaints  etc.  When  the bill  shows  deleting  "the                                                                    
     superior  court makes  the matter  public under  (h) of                                                                    
     this  section", before  the superior  court could  ever                                                                    
     get  involved, you'd  have to  have  a situation  where                                                                    
     number one,  it's a dismissal that  is confidential and                                                                    
     number  two,  the  personnel board,  in  their  review,                                                                    
     decides for  whatever reasons  that the  publication is                                                                    
     in the public  interest. Then they put  in their report                                                                    
     a recommendation  that the matter be  made public. That                                                                    
     was  in  AS  39.52.335(f),  which  is  proposed  to  be                                                                    
     deleted in Section 14 of SB 186.                                                                                           
     If all  those things happened, so  that the disposition                                                                    
     was  not made  public  and the  personnel board  report                                                                    
     contained recommendation  that it be made  public, that                                                                    
     is  when  an interested  person  could  go to  superior                                                                    
     court.  They can't  just go  to superior  court because                                                                    
     they feel  like it.  The personnel  board first  has to                                                                    
     decide  that this  matter should  be made  public. Then                                                                    
     they go to court and the  court could order that all of                                                                    
     it  or parts  of it  be made  public if  they determine                                                                    
     that  the several  things that  have to  be established                                                                    
     were.  One   of  those  things   is  "the   release  of                                                                    
     information  will not  infringe  on protected  rights",                                                                    
     "the  matter   concerns  public  interest",   and  "the                                                                    
     resolution was clearly contrary  to the requirements of                                                                    
     this chapter", those kinds of things.                                                                                      
     As a  matter of practice,  when we resolve  a complaint                                                                    
     through a stipulation, we  require that the stipulation                                                                    
     be made public  so that Alaskans know the  law is being                                                                    
     enforced and  it gives guidance to  state employees and                                                                    
     to  designated ethics  supervisors as  to what  sort of                                                                    
     conduct  will   result  in  an  ethics   complaint  and                                                                    
     enforcement  of  the  law.  We  try  to  make  all  our                                                                    
     resolutions of these public.                                                                                               
8:25:42 PM                                                                                                                    
MS. RICHEY summarized  the only change that SB 186  would make to                                                               
AS 39.52.335  is to  end the  process when  there is  a dismissal                                                               
that is  not public then that  would end it. The  personnel board                                                               
could not  recommend that it be  made public and the  trigger for                                                               
the superior court to make something public would be removed.                                                                   
SENATOR FRENCH  asked Ms.  Richey how  the personnel  board could                                                               
come  to  a  wrong  conclusion   about  the  need  to  publish  a                                                               
MS. RICHEY  reiterated there  is no history  of anybody  using AS                                                               
8:27:22 PM                                                                                                                    
MS. RICHEY stated  confidence in the handling of  the cases. Ones                                                               
that have substance are made public.                                                                                            
8:29:02 PM                                                                                                                    
SENATOR FRENCH relayed his belief  the superior court is a safety                                                               
valve for if a cover up  is happening. He moved Amendment 4. Page                                                               
6,  line 25  reinsert  "superior court  makes  the matter  public                                                               
under (h) of this section."                                                                                                     
CHAIR  SEEKINS objected.  He advised  Senator  French his  motion                                                               
would also have to repeal the repealer.                                                                                         
SENATOR  FRENCH added  to  repeal the  repealer  and any  further                                                               
adjustments for  statute conformity. The idea  behind Amendment 4                                                               
is to maintain the safety valve of the superior court.                                                                          
Roll  call  proved  Amendment 4  failed  with  Senators  Huggins,                                                               
Therriault and Chair Seekins dissenting.                                                                                        
SENATOR  FRENCH noted  a section  deleted on  Pages 6  and 7.  He                                                               
asked Ms. Richey whether that  section applied to personnel board                                                               
MS. RICHEY  said it all  related to AS 39.52.355  and disposition                                                               
of complaints by the attorney general's office.                                                                                 
8:33:37 PM                                                                                                                    
SENATOR  FRENCH stated  for the  record  he was  positive that  a                                                               
citizen  of   the  State  of   Alaska  could  not  be   bound  to                                                               
confidentiality as Section 15 states.                                                                                           
CHAIR SEEKINS  responded what triggers the  violation is somewhat                                                               
retrospective in that  a person has filed the  complaint. What he                                                               
is  trying to  avoid is  someone using  ethics violation  to harm                                                               
someone  else.  SB  186  is  an  attempt  to  give  somebody  the                                                               
opportunity for a deliberative body  to review a complaint before                                                               
that person is tried by the press.                                                                                              
8:38:00 PM                                                                                                                    
SENATOR FRENCH said  he believed the press  wasn't generally that                                                               
interested. The bill  is covering a range of  violations that are                                                               
already covered  by liable and  slander laws. He  moved Amendment                                                               
5. Page 7,  line 18 strike the material  "complainant" and remove                                                               
the  rest  of the  material  on  lines  20-27  that is  bold  and                                                               
SENATOR THERRIAULT objected.                                                                                                    
8:40:54 PM                                                                                                                    
Roll  call  proved  Amendment 5  failed  with  Senators  Huggins,                                                               
Therriault and Chair Seekins dissenting.                                                                                        
MS. RICHEY commented lines 24-27 are about public records cases.                                                                
SENATOR FRENCH asked  the reason for the word  changes in Section                                                               
19 sub-paragraph (B) (conjugal vs. sexual).                                                                                     
CHAIR  SEEKINS  stated  he  was  trying  to  reflect  a  marriage                                                               
relationship better.                                                                                                            
MS. RICHEY  agreed. She said  the words "conjugal"  and "cohabit"                                                               
indicate living in a marital relationship.                                                                                      
8:42:42 PM                                                                                                                    
SENATOR  FRENCH  proposed  Amendment  6.  Add  a  definition  for                                                               
"official  action",  which  would read,  "Official  action  means                                                               
performance of  any duties in  the course  and scope of  a public                                                               
official's  employment including  review, advice,  participation,                                                               
assistance, or other kind of  involvement regarding a matter such                                                               
as a  recommendation, decision,  approval, disapproval,  vote, or                                                               
other similar action including inaction by a public officer."                                                                   
CHAIR SEEKINS objected.                                                                                                         
8:44:23 PM                                                                                                                    
Roll  call  proved  Amendment 6  failed  with  Senators  Huggins,                                                               
Therriault, and Chair Seekins dissenting.                                                                                       
8:46:12 PM                                                                                                                    
MR. MERLE THOMPSON  testified in opposition of SB  186. He stated                                                               
public trust is the reason ethics  laws are written. SB 186 seems                                                               
more  concerned with  groundless  complaints, ruined  reputations                                                               
and financial restriction. It suggests  need for more secrecy and                                                               
punishes  the  complainant  more  so than  the  actual  violator.                                                               
People  in  public office  are  supposed  to  be held  to  higher                                                               
8:48:35 PM                                                                                                                    
MR. THOMPSON  continued the  class A  misdemeanor was  applied to                                                               
members of the  committee, not to the general  public. He claimed                                                               
SB  186 was  taking away  from the  system of  government and  in                                                               
violation of the First Amendment of the U.S. Constitution.                                                                      
8:52:47 PM                                                                                                                    
CHAIR  SEEKINS alleged  there was  nothing in  SB 186  that would                                                               
fine a whistleblower.                                                                                                           
MR. THOMPSON asked  whether he would be penalized in  the case of                                                               
if he intended  to file a complaint against  the attorney general                                                               
and advised the press of his intentions.                                                                                        
CHAIR  SEEKINS  said   it  depends  on  whether   he  filed  that                                                               
8:55:24 PM                                                                                                                    
CHAIR SEEKINS closed public testimony.                                                                                          
SENATOR FRENCH suggested there would  have been more citizens who                                                               
would have testified  had the hearing been  better advertised. He                                                               
said the  public is  unaware that  the Senate  Judiciary Standing                                                               
Committee is hearing SB 186 today.                                                                                              
8:57:01 PM                                                                                                                    
CHAIR SEEKINS stated SB 186 has  been on the daily schedule since                                                               
last  Friday. People  will  have opportunity  to  testify at  the                                                               
House hearings.                                                                                                                 
SENATOR  THERRIAULT  moved  CSSB  186(JUD)  from  committee  with                                                               
individual recommendations and attached fiscal note(s).                                                                         
SENATOR FRENCH objected.                                                                                                        
Roll  call   proved  Senator  French's  objection   failed.  CSSB
186(JUD) passed out of committee with Senator French dissenting.                                                                
               SB 187-LEGISLATIVE ETHICS/MEETINGS                                                                           
9:00:04 PM                                                                                                                    
CHAIR SEEKINS  announced SB 187  to be up for  consideration. The                                                               
committee is working off Version \Y.                                                                                            
9:01:37 PM                                                                                                                    
SENATOR THERRIAULT  moved Amendment 1. Adopt  similar language in                                                               
SB 186  with regard to the  $5,000 fine. Replace the  language on                                                               
Page 1, line 10. Hearing no objections, the motion carried.                                                                     
9:03:51 PM                                                                                                                    
SENATOR  FRENCH  asked  Chair   Seekins  whether  the  underlined                                                               
language  on Page  1, line  14  and Page  2,  lines 1  and 2  was                                                               
current law.                                                                                                                    
CHAIR SEEKINS:                                                                                                                  
     My   understanding,  Senator   French,   is  that   the                                                                    
     constitutional   right   and  responsibility   of   the                                                                    
     Legislature to  adopt it's own uniform  rules cannot be                                                                    
     subject to  statute. It  is a  constitutional provision                                                                    
     that has been given to  the Legislature and only to the                                                                    
     Legislature  and a  statute  adopted  by a  Legislature                                                                    
     that would  affect the uniform  rules would only  be in                                                                    
     effect  for the  term  of that  Legislature because  no                                                                    
     future  Legislature   can  be  bound  by   the  current                                                                    
     Legislature. Uniform  rules have to be  adopted by each                                                                    
     Legislature on its  opening day. This is  only meant to                                                                    
     clarify the  statute. Current law cannot  trump uniform                                                                    
9:06:14 PM                                                                                                                    
SENATOR FRENCH  asked wouldn't  the statute be  same thing  as an                                                               
amendment to the uniform rule.                                                                                                  
CHAIR SEEKINS  responded yes but  the uniform rules say  that the                                                               
uniform rules  can be changed  by majority of the  Legislature at                                                               
any  time. So  that  statute would  only be  in  existence as  an                                                               
amendment  to  the  uniform  rules  until  the  legislative  body                                                               
decided to change it.                                                                                                           
SENATOR THERRIAULT read from Mason's Manual. Section 13:                                                                        
     The power of a house  of a legislature to determine its                                                                    
     rules  of proceedings  is a  continuous  power. It  can                                                                    
     always be  exercised by the  house and is  absolute and                                                                    
     beyond the  challenge of  any body  or tribunal  if the                                                                    
     rule  does  not  ignore  constitutional  restraints  or                                                                    
     violate fundamental  rights. Rules of  procedure passed                                                                    
     by  one legislature  or statutory  provisions governing                                                                    
     the   legislative  process   are  not   binding  on   a                                                                    
     subsequent legislature.  Rules of procedure  are always                                                                    
     in control of  the majority of a  deliberative body and                                                                    
     may be changed at any time by a majority vote.                                                                             
9:11:02 PM                                                                                                                    
CHAIR SEEKINS  said rules adopted  by a state  Legislature expire                                                               
with  the convening  of  the subsequent  Legislature.  SB 187  is                                                               
trying to  clarify it so  that there is  no conflict that  has no                                                               
basis in law or under the uniform rules.                                                                                        
SENATOR FRENCH said the argument is sound, however statutes pass                                                                
for a reason. He expressed concern the bill would attempt to                                                                    
supersede a statute by the application of uniform rules.                                                                        
CHAIR SEEKINS:                                                                                                                  
     Well, I think  it's only a restatement of  a truism and                                                                    
     I think that would be a  great test case for someone to                                                                    
     bring.  So far  the state  Supreme Court  has commented                                                                    
     and the state supreme  court basically says, Article 2,                                                                    
     Section 12,  for example the  Malone vs.  Meekins case,                                                                    
     the  supreme  court has  said,  "We  can think  of  few                                                                    
     actions  which   would  be  more  intrusive   into  the                                                                    
     legislative process than  for a court to  function as a                                                                    
     sort of super parliamentarian  to decide the varied and                                                                    
     often skewed  points of parliamentary law  which may be                                                                    
     raised in the course of  the legislative day. Thus even                                                                    
     though the  uniform rules may  have been  violated such                                                                    
     violation  is solely  the business  of the  legislature                                                                    
     and does not give rise to a justice-able claim."                                                                           
     If  the Supreme  Court can't  intervene in  the uniform                                                                    
     rules, and there's another rule,  Senator, that is very                                                                    
     interesting and  it says that  for example  Section 51,                                                                    
     "A public  body cannot  delegate its powers,  duties or                                                                    
     responsibilities  to   any  other  person   or  groups,                                                                    
     including a  committee of its  own members.  However, a                                                                    
     legislative body  may delegate by rule  such procedural                                                                    
     powers as  appointment of members of  standing, special                                                                    
     and  conference  committees as  well  as  the power  to                                                                    
     refer bills to committee  to a constitutional presiding                                                                    
     officer who may or may not be a member of the body."                                                                       
     A statute  that would  delegate this  responsibility to                                                                    
     others  other than  the member  is a  violation of  the                                                                    
     rules.  So there's  the problem.  It is  constitutional                                                                    
     that  we adopt  our own  rules and  that when  we adopt                                                                    
     those rules it requires that  we are the ones who would                                                                    
     investigate  violations and  determine  whether or  not                                                                    
     they  were.  That's  not  meant  to  be  argumentative,                                                                    
     punitive, or  anything else but  merely to  clarify the                                                                    
9:15:00 PM                                                                                                                    
SENATOR FRENCH moved Amendment 2. Delete the underlined and bold                                                                
language starting on Page 1, line 14 and ending on Page 2, line                                                                 
SENATOR  THERRIAULT asked  Senator French  to clarify  whether he                                                               
thought the language was true yet superfluous.                                                                                  
SENATOR FRENCH  replied there  could be a  case where  the public                                                               
passes  a  statute through  an  initiative  process, which  could                                                               
require that the uniform rules be changed by a super majority.                                                                  
CHAIR SEEKINS:                                                                                                                  
     It  would  violate  the  constitutional  right  of  the                                                                    
SENATOR FRENCH:                                                                                                                 
     We don't exist  to enforce our own rights.  We exist to                                                                    
     serve the  will of  the public. I  would say  we should                                                                    
     bow before the will of the public.                                                                                         
CHAIR SEEKINS:                                                                                                                  
     The  Constitution   very  clearly  says  that   is  the                                                                    
     responsibility  of the  Legislature, to  adopt its  own                                                                    
     uniform rules.                                                                                                             
SENATOR THERRIAULT:                                                                                                             
     Even through  initiative, because of the  separation of                                                                    
     powers issue,  the people  cannot pass  a law  to throw                                                                    
     more   power  to   the  court   system  or   strip  the                                                                    
     Legislature of power and throw it to the governor.                                                                         
9:17:22 PM                                                                                                                    
Roll  call  proved  Amendment 2  failed  with  Senators  Huggins,                                                               
Therriault, and Chair Seekins dissenting.                                                                                       
CHAIR  SEEKINS  advised Section  3  addresses  the open  meetings                                                               
section. Section 4 concerns diversity.                                                                                          
SENATOR  FRENCH  asked the  number  of  public members  that  are                                                               
currently employed by the state.                                                                                                
CHAIR SEEKINS said two.                                                                                                         
SENATOR FRENCH asked the affect of this law on their membership.                                                                
CHAIR SEEKINS said nothing. They would have to come up for re-                                                                  
confirmation and one would have to go.                                                                                          
SENATOR FRENCH  stated whichever  one comes  up first  would have                                                               
the advantage.                                                                                                                  
CHAIR  SEEKINS said  there are  currently three  lawyers and  two                                                               
teachers. There is no current process for diversity.                                                                            
9:21:44 PM                                                                                                                    
CHAIR SEEKINS  explained Section 5  changes the structure  of the                                                               
alternate member.                                                                                                               
SENATOR FRENCH pointed  out the weakness is a member  may vote on                                                               
a  matter without  hearing any  of the  discussion. He  suggested                                                               
tightening it  so a member could  only vote on matters  they have                                                               
participated in.                                                                                                                
SENATOR  THERRIAULT  asked  Senator  French why  that  should  be                                                               
treated  differently  than  how  the  Senate  Judiciary  Standing                                                               
Committee operates.                                                                                                             
9:24:35 PM                                                                                                                    
SENATOR FRENCH  answered the  main reason  is because  the select                                                               
committee is  only hearing  complaints and  they are  highly fact                                                               
SENATOR  THERRIAULT  asked  Senator  French whether  he  has  had                                                               
conversations with the chair of the commission about the impact.                                                                
SENATOR  FRENCH  said no.  He  also  advised  he may  prepare  an                                                               
amendment for the section.                                                                                                      
SENATOR GUESS asked Chair Seekins  to explain the idea behind the                                                               
last two sentences of Section 6.                                                                                                
CHAIR  SEEKINS  said  except  as  provided  in  the  chapter,  an                                                               
advisory opinion is confidential.                                                                                               
9:27:30 PM                                                                                                                    
CHAIR SEEKINS explained Section 7  and Section 8 remove redundant                                                               
language on  confidentiality. Section 9 relates  to the committee                                                               
issuing a decision explaining the dismissal order.                                                                              
9:30:18 PM                                                                                                                    
CHAIR SEEKINS held SB 187 in committee.                                                                                         
There being  no further  business to  come before  the committee,                                                               
Chair Seekins adjourned the meeting at 9:30:29 PM.                                                                            

Document Name Date/Time Subjects