Legislature(2003 - 2004)
04/29/2003 01:42 PM Senate STA
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HCR 7-UNIFORM RULES: EXECUTIVE SESSIONS
REPRESENTATIVE BRUCE WEYHRAUCH, bill sponsor, reported the bill
was drafted on behalf of the House State Affairs Committee after
they conducted hearings on homeland security for the State of
Alaska. The commissioners of veterans and military affairs and
public safety testified in a public forum on matters that did
not interfere with any security issues. After that, he asked the
committee go into executive session excluding the public and
staff so the commissioners could more fully disclose areas of
homeland security that may have led to the need for additional
policy discussions, legislation, or appropriations.
As a result of September 11, homeland security has become a
significant part of what legislators do as government policy
makers. However, difficulties arose when he asked Legislative
Legal and Research Services to invoke certain statutory
provisions so that the committee could go into executive session
to discuss homeland security. HCR 7 amends the Uniform Rules to
allow a legislative body to call an executive session, and
specifically exclude the public, to discuss matters that might
affect the security of the state or nation or a government unit
or agency. The House Rules Committee amended the bill to include
the adjective "adversely" to make it clear that adverse affect
is what would be discussed in those executive sessions. As a
policy matter, the Legislature wants to discuss things as openly
as possible with the public, but they must also balance that
with protecting the public on matters of security.
CHAIR GARY STEVENS asked Ms. Cook to discuss paragraph (3),
which refers to discussion of a matter that may, by law, be
required to be confidential and whether the current statute
already addresses the issue.
TAMARA COOK, Director of Legislative Legal and Research
Services, advised that lends itself to consideration of
information such as tax records that an agency may possess. That
type of material is listed in statute as confidential, but
information an agency might possess that relates to security
matters wouldn't necessarily be outlined as such in statute.
That is partly because individual offices may be struggling with
pragmatic and practical decisions about how to keep their office
physically safe and yet there is no specific statute that says
that type of concern is confidential information. In fact, it
would be difficult to draft a statute that would take into
account all the possibilities that could arise when considering
a security matter.
SENATOR COWDERY asked if there were parameters to determine
allowable security for calling an executive session.
REPRESENTATIVE WEYHRAUCH replied it would depend on the
expertise and concerns raised by those providing information to
the committee. Information from an executive session could
always be opened to the public at a later time if it was
determined that was in the public's best interest. This is
cutting new ground and there is no clear answer.
SENATOR DYSON said, "You're right on the mark and I'm surprised
that we didn't have this provision and I commend you for doing
it." He asked if there had been any significant criticism.
REPRESENTATIVE WEYHRAUCH said any criticism was philosophic in
nature. It's a balancing act between the public's right to know
and the public's need to be protected and is not to be used to
evade the natural and necessary public watchfulness on what is
happening in government.
Paragraph (3) covers not just tax records, but also personnel
matters that are required, by law, to be confidential. Many Rule
22 issues are the types of thing Legislative Council discovers
when it discusses personnel evaluations or litigation, which
makes it more likely that they would invoke that protection as
opposed to a legislative committee. Paragraph (4) is an uncommon
type of invocation, but there was nothing in statute that made
it easy to enter executive session to address homeland security
issues.
SENATOR DYSON said he agreed with the bill and would like to
move it whenever the Chair was ready to entertain a motion.
SENATOR GRETCHEN GUESS agreed with Senator Dyson, but wanted to
know who would decide on entering executive session.
REPRESENTATIVE WEYHRAUCH replied the House State Affairs
Committee went into executive session twice to discuss homeland
security after talking with each of the commissioners and each
member of the committee. After each executive session, he
publicly reported what the committee was doing and why.
SENATOR GUESS appreciated that approach, but asked Ms. Cook if a
specific process would be outlined if the bill were to pass.
MS. COOK replied Representative Weyhrauch pointed out that the
three existing provisions for going into executive session would
depend on the good faith and responsible judgment of the
particular legislative body. By the nature of going into
executive session, there is no way for an outside person to
challenge the decision.
She reminded members that when a legislative body goes into
executive session, it does not have the power to exclude other
legislators. Additionally, a group of legislators' peers could
make a collective judgment if they determine a committee was
abusing the power to go into executive session.
SENATOR COWDERY asked whether a caucus was exempt as an
executive session.
REPRESENTATIVE WEYHRAUCH made it clear the intent of HCR 7 was
not for going into caucus.
SENATOR COWDERY asked whether there had ever been any court
challenges to a provision of this type.
MS. COOK explained The League of Women Voters sued to question
whether AS 44.62.310 was violated when the Senate Finance
Committee met privately to craft an alternative budget in the
last days of a legislative session. Ultimately, a budget was
adopted, which was the result of that meeting. The meeting was
not a caucus. In that suit, the lower court determined a
violation had occurred in the open meeting statute. They held
the public enjoyed the constitutional right to access committee
meetings. On appeal, the Alaska State Supreme Court said there
is no constitutional requirement that the Legislature open any
of its proceedings to the public. Furthermore, the statute,
which did apply to the Legislature, clearly applied to the
Finance Committee and could not be enforced by a court against
the Legislature itself. As a result of the holding, the
Legislature has elected to enact, in its ethics provision, a
requirement that meetings of the Legislature be held according
to open meetings principles.
At this time, it is a violation of the Legislative Ethics Act
for a legislative committee to be held in a way that would
obstruct public access. She advised the Uniform Rules probably
have no application to caucuses at all. A caucus has been
determined to be a private organization and is not a legislative
body in the same sense a committee would be. Up until now,
caucuses have established their own rules with respect to their
meetings being public or private.
4:10 p.m.
CHAIR GARY STEVENS said amending Rule 22, as described, would
say that a legislative body may call an executive session for
security issues and that a legislative body would include any
subdivision of the Alaska State Legislature.
MS. COOK agreed.
REPRESENTATIVE WEYHRAUCH stated that was the intent.
CHAIR GARY STEVENS expressed amazement this wasn't already in
place, but mused it wasn't an issue just a short time ago.
REPRESENTATIVE WEYHRAUCH replied that although it's discouraging
to think about, there is a need.
SENATOR DYSON made a motion to move HCR 7 from committee with
individual recommendations and zero fiscal note. There being no
objection, it was so ordered.
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