Legislature(1995 - 1996)
03/26/1996 03:35 PM STA
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SB 141 LEGISLATIVE ETHICS Number 420 CHAIRMAN SHARP brought up SB 141 as the next order of business before the Senate State Affairs Committee. SENATOR DONLEY made a motion to adopt the "R" version committee substitute for SB 141. Number 435 CHAIRMAN SHARP, hearing no objection, stated the committee substitute was adopted. Number 470 SENATOR RANDY PHILLIPS made a motion to adopt amendment M.1 by Phillips. Amendment M.1: Would create new Section 2, page 1. Prohibits spouses and spousal equivalents of legislators from serving as legislative lobbyists. CHAIRMAN SHARP objected to the amendment. He asked if there was any discussion. SENATOR LEMAN made a motion to amend the amendment. Amendment to amendment M.1: Delete the term "spousal equivalent" and replace it with whatever language the committee used before to replace that term. The drafter can determine what that language should be. CHAIRMAN SHARP stated he would speak to his objection to amendment M.1. His objection is that the regulation for disclosure by lobbyists, whether they be married to legislators or not, is very detailed and very strict at the present time. Therefore, he does not see reason to deny anyone from practicing a legal, highly regulated trade. Number 500 SENATOR RANDY PHILLIPS thinks the public sees legislative spouses who are also lobbyists as a conflict of interest. By having it totally banned, then there is no question in anyone's mind about it. CHAIRMAN SHARP asked if there is any objection to the amendment to the amendment. Hearing none, the chairman stated amendment M.1 has been amended. CHAIRMAN SHARP asked if there were any other comments on the amended amendment. The chairman asked that the role be called on amendment M.1. Amendment M.1 passed by a vote of 4 yeas, 1 nay. Voting for the amendment are Senators Phillips, Leman, Duncan, and Donley. Voting against the amendment is Senator Sharp. Number 515 SENATOR DONLEY stated what he would like to do, instead of moving amendment O.4 - he was working this afternoon on something he thinks would better address that issue. He wants to clarify what is meant by "public area". He proposed that after the language "...government business." on page 4, line 17, add "offices of individual legislators are not public areas for the purpose of this section." SENATOR LEMAN asked if that language was instead of amendment O.4. SENATOR DONLEY replied it is offered instead of amendment O.4. So we are actually adopting exactly what the committee asked for, we are just clarifying the definition of "public area". Senator Donley moved the amendment. CHAIRMAN SHARP asked if there are objections to the amendment. We will call it amendment O.4. CHAIRMAN SHARP, hearing no objection, stated the amendment was adopted. Number 550 SENATOR DONLEY stated amendment O.3 would affect the language on page 6, Section 7. His original amendment asked that some of the descriptive words be deleted, because he did not think they were consistent with the original purpose of the Ethics Act. Senator Donley wants to modify his original amendment. The amendment would read as follows: Delete the word "minimal" on line 10, delete the words "short" and "incidental" on line 14, and delete the last sentence on line 15, "Incidental political campaign activities shall be kept to a minimum." CHAIRMAN SHARP asked about the word "incidental" after the word "minimal". SENATOR DONLEY stated he would leave that one in, because he thinks that is appropriate to the original intent. But the others go far beyond what the original Ethics Act intended, and they're putting their own interpretation into it, which he thinks is inconsistent. SENATOR DONLEY made a motion that his amendment be adopted. Number 575 SENATOR DONLEY stated he finds "minimal" to be a very difficult standard. It is subjective and in the eye of the beholder. He finds offensive the idea on line 14 that you can only answer a short telephone call. It was always anticipated, especially on the part of legislators, that telephone calls would not be limited. SENATOR RANDY PHILLIPS asked, how about "incidental" telephone calls, instead of "short"? SENATOR DONLEY asked how does one control incoming telephone calls? He asserted that you cannot control them. SENATOR RANDY PHILLIPS stated, but you can ask the caller to call another number. SENATOR LEMAN stated that's how he handles political calls; he just refers the caller to another phone number. TAPE 96-23, SIDE B SENATOR DONLEY thinks there was a very consistent philosophy running through the Ethics Act, that the telephone calls were - it doesn't cost the state anything, first of all. The idea that someone has to have a short telephone call is ludicrous. What is a short telephone call? "Short" is so subjective. SENATOR RANDY PHILLIPS asked Senator Donley how he handled those telephone calls before. SENATOR DONLEY responded it will be different for different people in different locations. Some people's legislative offices may be far away from their homes. We have other lives as legislators, and this is not an improper impact upon the state. CHAIRMAN SHARP asked Senator Donley if he sees a difference between "minimal" on line 10, and "minimum" on line 15. SENATOR DONLEY stated he is proposing to take both those out. CHAIRMAN SHARP asked if there are objections to the amendment. SENATOR LEMAN objected. Senator Leman agrees that interpretation difficulties produce some very ludicrous situations. He has seen the APOC come up with some ludicrous interpretations of what he sees as common-sense rules. But he hopes the legislative record is clear here that is not what is intended in opposing amendment O.3. CHAIRMAN SHARP asked that the role be called on amendment O.3. Amendment O.3 passed by a vote of 4 yeas, 1 nay. Voting for the amendment are Senators Sharp, Phillips, Duncan, and Donley. Voting against the amendment is Senator Leman. Number 535 CHAIRMAN SHARP brings up amendment O.7 as the next item before the committee. Amendment O.7: Conceptual amendment; Legislator may not work for Executive Branch, quasi-state agency, or university while holding public office. Legislator may not provide any services, materials, or supplies unless legislator goes through the state's procurement code procedures regulating the competitive bidding process. CHAIRMAN SHARP stated the amendment would clarify what legislators could not do. Where that amendment would fit into the legislation would be up to the drafter. CHAIRMAN SHARP made a motion to adopt amendment O.7. SENATOR DUNCAN objected to the amendment. He doesn't know of a legislator who has ever worked for the executive branch or for a state agency. He thinks that is already prohibited. Senator Duncan disclosed that he would be directly impacted by this amendment, if he understands the amendment. When the amendment states "including the university" - for the last fifteen years he has had individual contracts with the university system to teach a course, which is a contract that is available to anyone in the public who is qualified. It has gone through all the review and everything and is a very minimal salary. It has been very beneficial to the university though, to be able to use part-time instructors. As he understands, this amendment would prohibit him doing that. This activity has always been allowed in the past, and has been discussed by the Ethics Committee. It is not a position of high income, and the course is only offered if the enrollment is high enough to pay the cost of the course, so it is not a budgetary consideration. Number 500 SENATOR LEMAN stated that activity wouldn't trouble him so much if the application of the law was consistent. When the legislature addressed this several years ago, as legislative history shows, he and several other legislators asked the question, and were assured that the prohibitions against working for the state would not keep them from doing their professional jobs. Senator Leman is a consulting engineer, and he was assured that though there would be certain restrictions, they would be able to do their jobs. And yet the rules came out and said they couldn't do that for an agency of the state. Initially, the ruling was that they could do it for municipalities. Then the Ethics Committee said we couldn't, if the municipalities received any funding for the project he was working on provided by the state. He thinks that went beyond legislative intent and legislative history. He thinks if they're not going to do something like this, they should take a look at the other, and decide what is minimal. He could make the same argument in his case as Senator Duncan has made. He is troubled by the interpretation that any association, and in his case the association occurred for years before he was in the legislature, is disallowed because he is in the legislature. SENATOR DUNCAN is not sure about that interpretation, because he thinks there is at least one individual in the legislature who works for a city as a city attorney. It cannot be determined whether it is state money that pays that individual or local money. SENATOR LEMAN agrees, and he had the same trouble about comingling of funds. How does the municipality decide what is their money, etc. In most cases the easiest thing to do is just stay away from it. SENATOR DUNCAN stated there was a court case some years ago concerning state operated schools, specifying that there was no problem with Nick Begich's involvement in public education. He thinks the amendment is an over-reach, especially when you are not talking about state dollars being used. He doesn't think there has ever been a legislator who has worked for a state agency, executive branch, legislative branch, or judicial branch. He thinks that's always been clearly prohibited. SENATOR DONLEY thinks that's prohibited by the constitution. SENATOR DUNCAN thinks the only thing not already prohibited that would now be prohibited under amendment O.7 is his case. He also thinks there are other legislators who would be qualified to teach university courses, who would then also be prohibited from doing so. SENATOR LEMAN acknowledged that Ms. Redman of the University of Alaska has been talking to him about teaching engineering courses at the university. But I need to finish the work on my PhD. SENATOR DONLEY thinks the executive branch and the quasi-state agency elements of amendment O.7 are already covered in a constitutional prohibition. He thinks what we're getting down to is the prohibition on university. He thinks the university is a separately created constitutional animal. It has it's own internal budget process, much to his dismay, most of the time. He can find as much logic in limiting local government employment and native corporation employment as in limiting university employment. CHAIRMAN SHARP thinks the difference between what Senator Donley is talking about and what we have here, is that these get practically 100% of their money and authorization from the State of Alaska. Number 430 SENATOR DUNCAN asked for clarification on contracts, because the way in which he is hired at the university is under contract. He is not sure how that would relate to the amendment. There is also language relating to legislators holding contracts if they do not exceed a certain amount. The difference is, his is a contract position, and not an employee position. He is not sure if you could call it a competitive bid or not, but it is open to anyone who has the background. CHAIRMAN SHARP stated he feels pretty firmly that just because a legislator hasn't worked for any of these entities in the past, the opportunity should be closed. He knows of several people from Fairbanks who worked for the university and quit their jobs to run for office. SENATOR DUNCAN stated they would have to quit their jobs. He could not work full-time for the university and be in office. The difference is, and it's been looked at by the attorneys, he is a contracted instructor for an individual course, which is much different than an employee of the university. CHAIRMAN SHARP stated it would be available if it satisfied the provision allowing services, materials, or supplies, as long as the legislator went through the procurement code procedures. SENATOR DUNCAN stated the amendment is more than conceptual. On the last page of members' packets is an actual written amendment. That amendment would prohibit contracts. CHAIRMAN SHARP thinks it would only be allowed for supplies and material. SENATOR DUNCAN stated he is concerned that they are making a blanket prohibition against teaching at the university, which means that an individual could not teach an individual course under contract. Number 370 CHAIRMAN SHARP stated he has moved amendment O.7, and he still thinks it's good public policy and perception. He asked if there were any other comments before he called for a vote. SENATOR DONLEY stated if the amendment passes, he will be proposing changes to it. He thinks the logic of it should be extended to local governments and native corporations. CHAIRMAN SHARP thinks that strays a little far from actual state owned, operated, and authorized agencies or facilities. Number 357 SENATOR LEMAN stated he will support the amendment, but he would also support an income test for this type of activity and other activity he mentioned earlier. He would like to craft something specifying an annual amount, or an annual amount per contract for university teaching and municipal government work and those types of activities. He thinks those types of activities were not meant to be prohibited. If something like that could be accommodated, he would support it. SENATOR DONLEY thinks the state's range 10 base salary level might be an appropriate level for that. CHAIRMAN SHARP stated he wouldn't argue with that. SENATOR DONLEY thinks if the amount was no more than the base amount of salary legislators receive, then arguably your conflict would never exceed what you make as a legislator. He also likes the fact that the amount will shift over time, and that it's won't be a fixed dollar amount. Number 340 SENATOR DONLEY made a motion for a conceptual amendment that there be an exception for the applicability of amendment O.7 for contracts not to exceed the legislative base salary - that the total contractual income from that entity would not exceed the legislative base salary. The constitutional prohibitions will always supersede these, so the prohibition of ever working for the executive branch would still be in place. SENATOR LEMAN asked Senator Donley if it was his intent that the conceptual amendment apply to contracts with municipal governments, and that the legislative intent would be to change the current policy, as interpreted by the Ethics Committee. SENATOR DONLEY stated he thinks he would have to add "local government bodies" after "quasi-public corporations", so it would be part of the list of entities in amendment O.7. Number 313 CHAIRMAN SHARP asked how the public will see this: is this a weaseling out of a prohibition, or is this a situation for the benefit of the legislators, or is this legitimate? SENATOR DONLEY replied it is actually a tightening-up of existing law. We already have an absolute prohibition of working for the executive branch. This would actually be putting a cap on university and other contracts for the first time. CHAIRMAN SHARP thinks the executive portion is in the conceptual amendment, but not in amendment O.7. SENATOR DUNCAN stated that the executive portion is in amendment O.7 also. CHAIRMAN SHARP asked, what makes legislators so much more special that they can do this, and not spouses of legislators? SENATOR RANDY PHILLIPS agreed with the chairman. SENATOR DONLEY stated the spouse of a legislator could be a full- time University of Alaska employee; that is not limited. CHAIRMAN SHARP stated he is comparing Senator Donley's amendment with forbidding legislator's spouses to be lobbyists. SENATOR LEMAN commented that maybe there should be a diminimous standard there, also. SENATOR RANDY PHILLIPS asked, you mean a lobbyist makes as much as a legislator? He doesn't think that will work. SENATOR DONLEY stated his amendment would be to add "local government" after "public corporations", and specify that there would be an exception for contracts - and he liked the chairman's language. He wonders if it's still in this, as it was in the conceptual version, where there was a contract under - it didn't seem to fall through into the actual language of the amendment, did it? CHAIRMAN SHARP asked if that was through the state procurement code procedures. SENATOR DONLEY replied, yes. There was some impartial procedure that went into it. He thought that was a good insulating factor, but he wouldn't know how to craft that. To add "local government" after "public corporations" and say that there would be an exception if the contracts didn't exceed the legislative base salary. That can't have any impact upon any of the constitutional prohibitions. Number 270 SENATOR LEMAN stated the local government restriction is not to local governments, it's to local governments if the funds are coming from a state appropriation. He thinks that to restrict all local government contracts, with the exception of this diminimous standard is the wrong approach. We probably should say, "local government contracts that are funded through a state appropriation, up to that diminimous standard." He thinks that would be closer to what they're trying to reach. SENATOR DONLEY stated the issues of municipal aid and revenue sharing exist, and there seems to be a conflict there. Municipal aid is a much bigger conflict than a university course paid for by student-generated funds. CHAIRMAN SHARP stated he's heard a lot of words on an amendment to the amendment, but he hasn't seen anything in writing. SENATOR DONLEY stated he would try again. After the words "quasi- public corporation" add "local government". Then put a caveat on that there would be an exception for contracts awarded through an open-bid process, not to exceed the legislative base salary. SENATOR LEMAN objected to the amendment to amendment O.7. It doesn't cover what he's been trying to reach. CHAIRMAN SHARP thinks it expands it for some, and restricts it for others. He asked that the role be called. SENATOR DUNCAN stated he is trying to decide what Senator Leman is trying to reach. Is he trying to reach the fact that certain people in Senator Leman's profession are prohibited from representing people before boards and commissions? SENATOR LEMAN replied, no, he is trying to reach work for municipalities. But what Senator Donley's amendment does is go beyond that, and specify that can't be done, except up to some diminimous standard. He is not so offended by that as he is by not being able to do any consulting, even of work that may have filtered through an appropriation process. SENATOR DUNCAN stated in that case, Senator Leman should be just as offended at the university section. SENATOR LEMAN responded he stated that earlier. As long as we are consistent all the way across, he wouldn't be offended with that. SENATOR DUNCAN thinks that is important, and that they should take the time to figure out how to be consistent. But he is not sure they can figure it out in five minutes. SENATOR LEMAN asked what the next committee of referral for SB 141 is. It is noted that there is no other committee of referral. The bill will go next to the Rules Committee. SENATOR DONLEY noted this is the first time the committee has discussed this specific proposal. CHAIRMAN SHARP stated he will withdraw amendment O.7 if Senator Donley withdraws his amendment. SENATOR DONLEY replied he would be happy to do so. CHAIRMAN SHARP stated they will reconsider it Thursday. His intention is to move SB 141 out of committee on Thursday. He asked Senator Pearce if she wanted to address some of the conceptual amendments. Number 203 SENATOR PEARCE thanked the chairman for the opportunity to comment on the committee substitute for SB 141. She thanked the committee for their work on the legislation; she and the Ethics Committee both appreciate it. Senator Pearce told the committee that last year the Anchorage Daily News indicated they thought legislators should have to reveal any work intrests they had in the state immediately after they had that interest. As she understands it, there is currently nothing in SB 141 reflecting that. However, Senator Pearce does recommend that the committee look at having the legislative financial disclosure statement deadline on February 15 of each year. That would give the public the opportunity to look at the business interests that an individual legislator has earlier in the session, so they can make a judgement on our behavior in terms of possible conflicts of interest. SENATOR PEARCE also thinks that the governor, lieutenant governor, the commissioners, and confirmed board members who draw a salary, like APUC board members, should be held to the same standard of conflict of interest reporting to which legislators are held, rather than the lesser standard in the present law for administrative employees. Number 132 SENATOR RANDY PHILLIPS stated he agrees with Senator Pearce on the February 15 deadline, but thinks there is a practical problem related to doing that, since limited partnerships don't report until the beginning of March. SENATOR PEARCE doesn't think that you need to declare a specific income for limited partnerships. We could go back and look at that. She is sure we could also change it to say a legislator would have to do some sort of analysis. Maybe we could have a limited disclosure of what the limited partnerships are, without listing the amount, and then update the information when you find out how much money you will get from the partnership. Senator Pearce thinks there is a way to work around that. She thinks it is too long a delay for a legislator to receive work on January 1, and not have to report that until April 15; that is a very long time. SENATOR RANDY PHILLIPS thinks there is a practical problem with the limited partnerships. SENATOR PEARCE thinks that can be worked out. Number 108 SENATOR PEARCE stated it has taken the Ethics Committee an enormous amount of time in deliberations for the committee to interpret the statutes, so the more clear the statutes are, the better off they all are and the less time it takes the committee. She suggests, at least for legislative races, that an absolute deadline of June 1 be set for an end of session mailing. Number 080 SENATOR DONLEY stated he has a problem with a June 1 deadline, because he has a problem getting his newsletter out by July. SENATOR PEARCE stated she was just trying to figure out a good date that was around 90 days before the primary campaigns. She just thinks there should be a specific date set. In this particular case, special sessions don't really affect this. If the governor calls us into a special session in October, she doesn't expect all those legislators who are also candidates to be mailing at public expense. SENATOR DONLEY stated he was thinking along the lines of the sessions in which the legislature starts later in January, and therefore would not get out of session until later in May. SENATOR PEARCE stated maybe you want to pick a different date. She picked that date because it's a date to which we all pay a lot of attention. Number 040 SENATOR PEARCE stated on Section 4, she believes that legislators ought to be able to hand people whatever they want to, but legislative employees should not be allowed to distribute or post literature. She asked Senator Donley if the intent of his amendment was to change what we were doing in terms of fund-raising notices. SENATOR DONLEY replied, no, he didn't do what was on there. We did something entirely different. Were you here for that? SENATOR PEARCE responded, no. She stated there is nothing that speaks to AS 24.60.030, subsection (e), but it is in the law and is something that probably needs to be defined. We have the committee trying to define whether or not a legislator is negotiating for employment, and frankly, that word is not defined at all. It is a section she believes should be looked at and defined. [End of Tape 96-23, Side B] [Short amount of testimony not recorded during the changing of tapes.] TAPE 96-24, SIDE A Number 001 SENATOR PEARCE said it should be laid out clearly, so that we understand exactly what we're supposed to say or write when we make either an oral or a written declaration of a possible conflict. It is a question that has come up a number of times during discussions at the [Ethics] committee level. On Page 6, Section 8, regarding the special session question, we need to figure out what "accept" means. She doesn't think the definition that the [Ethics] committee has come up with is what was intended. She doesn't have a problem with not being able to accept funds during a special session, but we need to find a way to handle those funds that doesn't get you in trouble with APOC when you do what the Ethics Committee wants you to do. Right now, the committee tells you not to accept a check, and APOC tells you that if you get a check, you have to run it through your account, and then send it back. Under the committee, that is accepting the check. Whatever you do, you end up breaking either the Ethics Committee's or APOC's rules. I can tell you, none of you really want to have to go before either committee. Number 062 SENATOR PEARCE stated that on lines 8 and 9 of that same section, we talk about a "substantial purpose of the event". She is not sure what the definition is of "substantial purpose". We may want to define that. SENATOR DONLEY commented that Senator Pearce's suggestions were good ones, but he is discouraged because he thought they were almost done revising the bill. Number 080 SENATOR PEARCE apologized. She stated that on page 10 of the "O" version, new language about a public record of disclosure concerning gifts relates to gifts not connected with the recipients legislative status. She does not think that type of gift should be made public; she thinks that disclosure should be confidential to the [Ethics] committee. She asked, relating to the language at the bottom of page 10, if you're going to specify "aunt and uncle", do you also want to specify "niece and nephew"? SENATOR DONLEY thinks it's page 11 on the "R" version. SENATOR PEARCE stated that definition is used in many places, and so deserves consideration. It includes the inheritance question. Number 120 SENATOR PEARCE wants to go back to Senator Donley's amendment regarding removing "incidental" and "minimal". She appreciates the concern by members of the committee into what balance should be struck. She thinks that "incidental" and "minimal" are in the eyes of the beholder and that the bill should be made as specific as possible: don't use adjectives. Make sure that everyone reading the same language will reach the same interpretation. That is extremely important. Regarding the legal defense funds, she hopes this language would not be precluded by the campaign finance reform initiative, and she would like to make sure it is written in such a way that it would stand. SENATOR PEARCE stated, in regards to the amendment relating to the subject of a complaint being able to attend any Ethics Committee meeting including confidential meetings, she thinks the committee should think about that amendment long and hard. She thinks subjects of complaints should be allowed to be a part of some of the meetings, but should not be at all of them. She thinks the [Ethics] committee has done a reasonable job of allowing access. Number 160 SENATOR PEARCE encouraged the committee to look at the Executive Ethics Act and make sure the elected officials and the commissioner-level folks are treated much the same as legislators, in terms of the standards met. She thinks that will make a difference in how the public views state officials and improve management of the state. She thinks the committee and legislature over-steps its' bounds when it attempts to micro-manage where a spouse can find employment, as long as the employment is disclosed. It's certainly an over-reach to affect folks who are in a relationship but are not married. She doesn't think it's up to the legislature to limit the ability of people to find work in the state; we are a very small state. Senator Pearce agrees with Senator Leman's concerns over employment, and thinks there should be some way to address his situation. She doesn't know if there's ever been an opinion requested regarding working as a city attorney. If we want a citizen legislature and to encourage good people to leave the private sector, and if we want term limitations, we need to make sure that we can encourage people to run for office. She doesn't think we should go to extraordinary lengths to limit legislators, candidates, and their family members from feeding their families. As long as everything is disclosed, it should be up to the constituencies to make those decisions. The Ethics Committee did not recommend that spouses of legislators not be allowed to lobby. Number 221 CHAIRMAN SHARP stated that the committee has requested a comparison of the Executive Branch Ethics Act and the Legislative Ethics Act. If there are glaring problems, we may want to determine if there is an opportunity to correct that in this bill, which would require a title change and some other major changes. SENATOR PEARCE stated though it would require a title change, she doesn't know that the amount work would be that enormous. There is a certain level of public servant who should all be expected to meet the same standards. SENATOR DUNCAN stated a title change would not be a problem; this is a senate bill. SENATOR PEARCE stated the Ethics Committee was wrestling with whether contract employees come under the Legislative Ethics Act by definition, and whether employees in layoff status come under the Executive Ethics Act. You can interpret whether or not you think they are receiving any remuneration from the state, because they don't lose their public service time by staying in layoff status, rather than leaving state service. There are a lot of people in Legislative Affairs Agency who are treated much differently than the employee in state service at the same level and range. CHAIRMAN SHARP stated SB 141 would be set aside until Thursday's committee meeting.