Legislature(1997 - 1998)

03/13/1997 03:40 PM Senate STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
            SB 105 LEGISLATIVE ETHICS CODE REFORM                            
                                                                               
  CHAIRMAN GREEN  brought SB 105 back before the committee and stated          
 the committee would continue with the overview on the legislation             
 beginning with Section 32 at the bottom of page 16.                           
                                                                               
  JOE DONAHUE , a public member of the Select Committee on Legislative         
 Ethics participating in the meeting via teleconference from                   
 Anchorage, presented the following overview, as well as responding            
 to questions from comittee members.                                           
                                                                               
 SECTION 32.  This section relates to advisory opinions.  The                  
 proposed lnguage in this section allows the committee to issue an             
 advisory opinion to a person who anticipates becoming a legislative           
 employee, 45 days prior to employment.  It also allows the                    
 committee 60 days to respond instead of 30 days.  Mr. Donahue said            
 the cost of getting together and also trying to get legal advice in           
 the 30 days has been quite difficult.  Subsection (b) contains                
 language to restrict attendance by a person who requested an                  
 opinion, including a legislator, during deliberations in the                  
 executive session on the advisory opinion.  He added that it is the           
 way the committee has been operating, but it wasn't absolutely                
 clear in the statute.                                                         
                                                                               
 SECTION 33.  Current law requires the committee to process                    
 complaints, even if against all the members of the legislature or             
 all members of one house, etc.,  -- things like that that are                 
 blanket and would take a lot more collusion than would be a normal            
 situation.  This section makes it clear that the committee wouldn't           
 have to do anything with those kind of complaints and can return              
 them to the complainant.  It also allows the committee to reinstate           
 a complaint if an employee, who has terminated, is rehired or if a            
 legislator, who has left the legislature, is reelected in less than           
 five years.  It makes it clear in terms of the five-year moratorium           
 on going back and looking at potential violations.                            
                                                                               
 SECTION 34.  The new language clarifies that the complainant must             
 sign a statement that says that they have reason to believe that a            
 violation has occurred and that the person who files it may be                
 called to testify, as well as placing the responsibility on the               
 committee to notify the complainant.  Mr. Donahue noted the form              
 the complainant signs already has such a statement, but it isn't              
 clear in the law that was the situation.  He added that this is a             
 partial response to some of the complaints the committee has had              
 from legislators and others that there is no strings on the person            
 who files the complaint.                                                      
  CHAIRMAN GREEN  asked if there has previously been anonymous                 
 complaints.   MR. DONAHUE  acknowledged there have been, but unless           
 they are signed and sworn to, the committee doesn't deal with them.           
  SENATOR MACKIE  voiced his agreement with the proposed language              
 because it strengthens the provision and cuts down on a lot of                
 frivolous, politically motivated type of activity that the                    
 committee does not want to deal with.                                         
                                                                               
 SECTION 35.  This section relates to a preliminary exam and                   
 dismissal if there is absolutely no merit.  Mr. Donahue said they             
 have had cases in the past where, based on either a quick                     
 investigation of the written record or something submitted by the             
 subject of the complaint, or even by the materials in the complaint           
 itself that there was really not going to be a need for an                    
 investigation, but there might be a need for some preliminary or              
 follow-up investigation for clarity.  He noted Ms. Barnett, staff             
 to the committee, has been allowed to do some of that under the               
 direction of the chair, but it hasn't been clear that that                    
 preliminary investigation could take place.                                   
                                                                               
 SECTION 36.  This section clarifies that the deliberations, the               
 vote on the dismissal order and the decision on a finding of lack             
 of probable cause can take place and will take place in the                   
 confidential executive session.                                               
                                                                               
  CHAIRMAN GREEN  asked if there is a time frame in the process set            
 out for the committee for a specific action on a complaint.   MR.             
 DONAHUE  answered there isn't a time frame in the statute, although           
 in the past, they have tried to move forward with them as fast as             
 possible.                                                                     
                                                                               
  CHAIRMAN GREEN  inquired if there is a penalty for an individual who         
 makes a frivolous complaint.   MR. DONAHUE  replied there isn't a             
 provision for a frivolous complaint, but there is a provision for             
 a fraudulent complaint, which is very different from frivolous.               
                                                                               
 SECTION 37.  This section clarifies the procedures if after a                 
 finding of probable cause and corrective action, the individual               
 agrees to do the corrective action and then later doesn't.  It                
 provides a mechanism where it would could come back to the                    
 committee and the committee could go forward with the formal                  
 charge.  Otherwise, without this, there is a question of the                  
 committee retaining any jurisdiction.                                         
                                                                               
  TAPE 97-11, SIDE B                                                           
 Number 572                                                                    
                                                                               
 SECTION 39.  This section relates to discovery.  Mr. Donahue said             
 the way it is currently written in statute, it's somewhat confusing           
 as to when discovery takes place.  The committee has interpreted it           
 as discovery taking place after probable cause has been determined            
 and has not generally allowed discovery prior to probable cause               
 with a limited exception.  This would clear that up and permit the            
 committee to adopt procedures to let it allow discovery earlier in            
 the stages, as well as putting restrictions on how much discovery             
 that would be.  He noted it also changes subsection (b) to                    
 subsection (h).                                                               
                                                                               
 SECTION 40.  This section relates to attendance at executive                  
 sessions and the waiver of confidentiality.  The proposed language            
 clarifies that all the meetings of the Ethics Committee concerning            
 an individual complaint that are closed to the public, i.e. the               
 confidential deliberations, are also closed to the legislators                
 unless they are a committee member.  As has been the committee's              
 practice, it allows the committee to call in the subject of the               
 complaint and give the opportunity to present their side of the               
 story or to talk to committee, but they would not stay in for the             
 deliberative process itself.                                                  
                                                                               
 SECTION 41.  This section requires the committee to put a timetable           
 on when someone must finish whatever corrective action and whatever           
 sanctions the committee recommend to the Legislature.  Mr. Donahue            
 said the statute was silent on this, and the committee had bad                
 experiences of failing to place any deadlines.  This will make it             
 statutory that there be deadlines and it will allow fines if they             
 are met.                                                                      
                                                                               
 SECTION 42.  This section is an additional timetable for after the            
 Ethics Committee makes a recommendation for sanctions to the                  
 Legislature.  It is requiring the legislators to let the committee            
 know what timetable they agreed to so that if it has to come back             
 to the Ethics Committee for failure to comply, then they will know            
 where they are.  Mr. Donahue advised that the current law is                  
 totally silent on any deadlines for sanctions or corrective                   
 actions.                                                                      
                                                                               
 SECTION 43.  This section relates to recommendations where the                
 violator is a legislative employee.  The current code says that the           
 recommendation is to go to the appointing authority, and the                  
 proposed language clarifies who the appointing authority is in each           
 instance, and the companion SECTION 44 will define the appointing             
 authority.  Mr. Donahue said this is to let legislators be the                
 supervisor of their legislative employees, but in Legislative                 
 Budget & Audit, that director is the supervisor, and that who the             
 corrective actions or the recommended actions would go to in each             
 case.                                                                         
                                                                               
 SECITON 45.  This section relates to recommended sanctions.  The              
 current law is totally silent as to what kinds of sanctions there             
 might be.  Mr. Donahue said the committee, in its deliberations               
 without breaching any confidentiality, went to a lot of creative              
 brainstorming to come up with sanctions.  This would give at least            
 some idea to both the public, the potential subject of the                    
 complaint and the committee and its members of some of the kinds of           
 the sanctions that might be available.  Some of these sanctions               
 would also include fines.                                                     
                                                                               
 SECTION 46.  This section relates to financial disclosure by                  
 legislators, legislative directors, public members of the                     
 committee, and certain legislative employee.  Mr. Donahue pointed             
 out that under the current law legislators and legislative                    
 directors are required to annually file the financial disclosure              
 statement with APOC, but the employees are not, and this will                 
 require that  employees who are at Range 19 and above who are                 
 handling a lot of constituent dealings and have more responsibility           
 to file the statement.  He noted the old legislative ethics bill              
 that was in place before 1993 had a similar provision for Range 19            
 and above.                                                                    
                                                                               
 Number 512                                                                    
                                                                               
  BEN BROWN , staff to Senator Tim Kelly, pointed out that Section 46          
 is the provision that created the fiscal note and the fiscal impact           
 in the bill because APOC will have to employ additional staff to              
 handle the disclosures from the Range 19 employees and above.   MR.           
 DONAHUE  noted that the concept of adding the Range 19 employees is           
 added to the next three sections of the bill.                                 
                                                                               
  CHAIRMAN GREEN  asked if the bill contains a definition for "certain         
 legislative employees."   TERRY CRAMER , Legislative Legal Counsel,           
 Legislative Affairs Agency, directed attention to Section 53,                 
 paragraph (15) which defines "legislative employee who is required            
 to disclose."  She added that the old ethics law did not apply to             
 employees who were compensated below Range 18, so far as she knows            
 there has never been a requirement that "run of the mill"                     
 legislative employees filed financial disclosure statements, so               
 this is new in that respect.  Singling out employees paid at a                
 higher range has been done in the past.                                       
                                                                               
 Number 485                                                                    
                                                                               
  SENATOR MACKIE  asked if this would apply to anyone that works for           
 any branch of the Legislature that is a Range 19 and above, and  MS.          
 CRAMER  answered that it would.   MR. BROWN  said in the fiscal note          
 it is estimated that this provision will add 192 new filers every             
 year and then a turnover of about 20 filers a year.                           
                                                                               
 SECTION 47.  This section relates to deadlines for filing of                  
 disclosure statements and it adds the Range 19 and above employees            
 to the reporting deadline, as well as changing the deadline from              
 April 15 to February 15.  Mr. Donahue said this is part of an                 
 effort to make all of the reporting dates the same time period and            
 earlier in the legislative session so anyone who wants to review              
 what has been filed will have a chance to do so before the session            
 is over.                                                                      
                                                                               
 SECTION 48.  This section provides for a penalty for late filing.             
 Mr. Donahue said that currently there is no penalty for a late                
 filing.  A fine makes more sense than finding the individual in               
 violation of the statute and then trying to figure out a sanction             
 for it.                                                                       
                                                                               
  MS. CRAMER  clarified that Section 48 relates to filing financial            
 disclosure statements.  The more general penalty for not filing               
 disclosure statements to the Ethics Committee is found at Section             
 51.                                                                           
                                                                               
 SECTION 49.  This section adds the Range 19 and above employees and           
 the public members of the Ethics Committee to those who would                 
 forfeiture nominations to their office if they failed to file.                
                                                                               
 SECTION 50.  This section would allow a person to file a late                 
 disclosure, but the individual would be subject to a fine or to               
 having a complaint filed against them, in theory.                             
                                                                               
 SECTION 51.  This section permits the Ethics Committee to impose              
 fines for late disclosures and give a price range not to exceed               
 $2.00 per day to a maximum of $100 for each disclosure.  If the               
 committee finds that the late filing was inadvertent, the maximum             
 fine is $25.                                                                  
                                                                               
  MR. DONAHUE  expressed concern that by using the term "inadvertent"          
 it may be opening up a gray area because it means somebody has got            
 to determine what's inadvertent and what's not.   SENATOR PEARCE              
 recommended leaving out the "inadvertent" language, and, if the               
 committee decided the higher fine wasn't necessary, it could then             
 impose a lower fine; the committee would still have the latitude.             
                                                                               
 Number 387                                                                    
                                                                               
  SENATOR MACKIE  moved as Amendment No. 1, on page 26, beginning on           
 line 18, delete the sentence "However, if the committee finds that            
 a late filing was inadvertent, the maximum fine the committed may             
 impose under this subsection is $25."  Hearing no objection, the              
 Chairman stated the amendment was adopted.                                    
                                                                               
 SECTION 52.  This section makes a change to the definition of                 
 "immediate family" and it applies back to the contracts on leases             
 section and the section on nepotism.  These changes conform with              
 24.60.080(g) of this same bill.                                               
                                                                               
 Number 368                                                                    
                                                                               
  SENATOR PEARCE  asked if the family definitions are consistent               
 throughout the ethics bill so that disclosure requirements are the            
 same as gift requirements.   MS. CRAMER  responded they are not, and          
 she thinks it is a deliberate choice on the part of the previous              
 Legislature that considered this bill.  The definition of family              
 member is more inclusive in the gift area.  But for the kinds of              
 financial relationships that would be coming up in a contract area            
 or a nepotism area, it's a more limited definition of family so               
 that the prohibitions that those sections impose are applied to a             
 more limited group of people.   SENATOR MACKIE  noted there are a             
 number of different areas in the bill relating to family, and he              
 suggested double checking to see that there is some consistency in            
 the definition of family for disclosure, gifts, reporting or                  
 wherever it is applied.   MS. CRAMER  said she would check to be sure         
 how family member is used in the bill and in existing statute.                
                                                                               
 SECTION 53.  Mr. Donahue said this section adds the Range 19                  
 employees and the public members of the committee to those that are           
 required to file the financial report to the Alaska Public Offices            
 Commission, as well as adding "spousal equivalent" to the list of             
 those whose income must be reported.                                          
                                                                               
 SECTION 54.  This section provides an effective date of January 1,            
 1998.                                                                         
                                                                               
  SENATOR MACKIE  suggested it would be less confusing for the                 
 committee members if any additional amendments to the bill be dealt           
 with individually before adopting a final committee substitute.               
                                                                               
 Number 208                                                                    
                                                                               
  CHAIRMAN GREEN  thanked Mr. Donahue for his participation in the             
 meeting before adjourning the committee at 5:05 p.m.                          

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