Legislature(2007 - 2008)BELTZ 211
03/20/2008 09:00 AM STATE AFFAIRS
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SCR 12-AMEND UNIFORM RULES: ABSTAIN FROM VOTING SB 203-LEGISLATIVE ETHICS: VOTING & CONFLICTS 9:53:28 AM CHAIR MCGUIRE announced the consideration of SCR 12 and SB 203. MICHELLE SYDEMAN, Staff to Senator Bill Wielechowski, said SCR 12 will bring Alaska in line with most other states prohibiting legislators who have a substantial financial stake from voting on a bill. She said 65 percent of states do this, including Colorado, Florida, Maine, Texas and Washington. An additional 35 percent allow legislators with substantial conflicts to request permission to abstain. Most of these states permit abstention if a majority of legislators vote to grant it. Alaska is the only state that requires unanimous consent before a legislator with a conflict can abstain from a vote. The Center for Ethics in Government knows of no other states. The House Clerk and the Senate Secretary do not recall a single time when permission to abstain was granted. Alaska is at the far end of the spectrum, even among states with small citizen legislatures. Existing statutes go to lengths to insure that conflicts are substantial before a legislator would be required to abstain. Any benefit a legislator might receive from supporting a particular piece of legislation would have to be greater than the benefit a large group of Alaskans would receive in order to require abstention. A legislator who teaches during the interim could vote on the salary of teachers, because the gain is shared among many. 9:56:47 AM MS. SYDEMAN said SCR 12 would require legislators to declare their conflict, identify the provision of the ethics act that would be violated, and abstain from voting. A request to abstain due to anything other than ethical concerns would still require unanimous consent. There will be few instances that a member will be able to demonstrate direct and substantial economic benefit that is greater than that received by the substantial class of persons to which that legislator belongs as a member of a profession, industry or region. This is the existing language of AS24.60.030. In those rare instances, this change in the uniform rules would provide assurance that decisions are made in the public interest. It would also protect legislators from allegations that a vote was influenced by personal concerns. SENATOR BUNDE said "a large or substantial number" is squishy. He would like a better definition. MS. SYDEMAN said it is terminology used across the country. She couldn't find a state with a good definition. She believes it is left to the discretion of the ethics committees. It is also the existing language in Alaska's statutes right now. 9:58:38 AM SENATOR BUNDE said that Ms. Sydeman mentioned that teachers would be a substantial group, and he asked about fishers, crab fishers, hair crab fisher, and how to determine substantial. MS. SYDEMAN said she has this discussion with many people across the country and she hasn't gotten a clear answer. The decision must be made on a case-by-case basis. SENATOR BUNDE said he applauds the goal but questions the mechanism for getting there. 9:59:36 AM SENATOR STEVENS said there are conflicts of interest when voting on the floor. There are also conflicts elsewhere. For example, he retired from the university and was asked him to come back to teach a class. Legislative attorneys said he can't work at the university because he votes on the university budget. What is the connection with that conflict and a voting one? 10:00:38 AM MS. SYDEMAN said those are separate parts of state statutes. DAN WAYNE, Legal and Research Services Division, said there is a specific statute keeping legislators from taking certain jobs. The concern, he believes, was about exerting influence to get a job -- being hired because of legislative status. SENATOR BUNDE said he had the same experience. The constitution says a person cannot have two positions of profit with the state. A public school teacher can be a legislator because schools are "not directly a facet of the state" as the university is. There was a legislator from Juneau who taught at the university, and no one challenged it. 10:03:00 AM SENATOR FRENCH said he couldn't work as a prosecutor in the off season for the state but he could for a municipality. CHAIR MCGUIRE said many lawmakers have been talking about this and it has been awkward. It would be helpful to see how other states handle it. For this small community everyone knows everyone, and a large number of people may get conflicted out. SENATOR STEVENS said legislators don't want to take a position on an issue where their constituents are split, and it might be convenient not to vote. Now, a person has to vote. He questioned how the legislature operates when people can weasel out on a vote. It might be difficult to get anything done if there were a narrow majority. SENATOR FRENCH asked if this would change the tally of votes required to pass a bill. MS. SYDEMAN said those requirements are in the constitution. SENATOR FRENCH asked about a difficult issue, like a phone war, where members would skip out on the vote by declaring a false conflict of interest. He asked what happens in that instance. 10:06:42 AM MS. SYDEMAN said that is an important question. The ethics committee could make a determination. There could be a mechanism for the body to determine if a conflict is real. It could be rulings by a presiding officer or a vote by the body. The uniform rules once called for a majority vote to determine whether a member did have a substantial conflict, and then it went to a two-thirds vote, and now it is unanimous consent. SENATOR BUNDE said if SCR 12 becomes law, "and I declare a conflict, then whether I had one or not and was prohibited from voting would be a matter of a majority vote in the body." MS. SYDEMAN said that is not the intent of this bill. It relies on the judgment of the individual legislator, so that no other members have to judge. "This bill leaves that completely up to the determination of individual legislators." People thought there could be political maneuvering if one member were to be judged by a majority. A member with a conflict must go on record and make the determination. If there is abuse, the ethics committee is there. 10:09:17 AM SENATOR BUNDE said the bill creates a huge opportunity for a member not to vote on tough issues. He has a friend who lost an election because he stood up and took the tough vote, "and he could've ducked it." He asked how the ethics committee can consider someone unethical who thinks there is some personal financial impact. They may have to do a polygraph. SENATOR STEVENS said one option is having the rules committee or legislative council decide. But that would throw sand in the wheels, and some may take advantage of that. The legislature, now, is not as bad as some options being considered. SENATOR BUNDE asked about another member deciding someone else shouldn't vote. MS. SYDEMAN said that is why the bill leaves it up to the member - we didn't want other members pointing fingers. 10:12:27 AM SENATOR GREEN asked, "How many other instances has the legislature amended the uniform rules in statute?" MS. SYDEMAN said this would not amend the uniform rules through statute; it is a concurrent resolution. This particular rule has been amended twice. SENATOR GREEN asked if it was amended by the adoption of new uniform rules or by direction in statute. 10:13:10 AM MS. SYDEMAN said she believes it was done in a joint session of the legislature, but she is not sure. SENATOR GREEN said the uniform rules and the adoption of Mason's current manual were really big issues when she was newly elected. She hasn't heard that conversation as much recently, but the uniform rules are considered powerful in order to keep the legislature in charge of its business. The court has recognized that. It makes her nervous to amend them without the adoption of a whole new set of uniform rules. CHAIR MCGUIRE said she will set the bill aside, but it is good for bringing up this discussion. Members have been struggling with how to handle conflicts. The body may want to consider looking at the uniform rules. The Anchorage assembly deals with conflicts of interest through its own internal rules, which seems to work well. The discussion needs to continue. SENATOR GREEN asked if for an example of someone being conflicted from a vote. SENATOR BUNDE asked if a three-quarters vote would be better than the unanimous consent as a middle ground. CHAIR MCGUIRE said members get cut off when they discuss why they have a conflict. Maybe they should be in the public record. SENATOR FRENCH said this is a difficult and fascinating issue - ethically, politically, and philosophically. "We all know that something has to happen." He suggested looking at examples in other states where it works. Perhaps it only happens every four or five years. Apparently the other states can get their work done with some rule that prevents voting in some circumstances. It seems like the Alaska legislature works, but it also seems like a dinosaur. "We need to be open to the idea that there are methods out there for dealing with what may be a circumstance which is far more rare than most of us perceive." 10:18:50 AM SENATOR STEVENS said the public knows where a politician stands when elected. Citizens know what they are getting and want their elected representatives to vote. MS. SYDEMAN said there are many facets to the debate. The committee could establish a small task force. SENATOR BUNDE noted the disenfranchisement of the citizens who elected someone who won't vote. CHAIR MCGUIRE set aside SCR 12 as well as SB 203. 10:21:37 AM MS. SYDEMAN said she has a separate presentation for SB 203. It makes changes to the statute governing conflicts of interest. CHAIR MCGUIRE set SCR 12 and SB 203 aside. The committee took a brief at-ease at 10:22:21 AM.