Legislature(2021 - 2022)GRUENBERG 120
03/16/2021 11:00 AM House FISHERIES
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| Audio | Topic |
|---|---|
| Start | |
| HB26 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 26 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE SPECIAL COMMITTEE ON FISHERIES
March 16, 2021
11:00 a.m.
MEMBERS PRESENT
Representative Geran Tarr, Chair
Representative Louise Stutes, Vice Chair
Representative Jonathan Kreiss-Tomkins
Representative Andi Story
Representative Dan Ortiz
Representative Sarah Vance
Representative Kevin McCabe
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 26
"An Act relating to participation in matters before the Board of
Fisheries and the Board of Game by the members of the respective
boards; and providing for an effective date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 26
SHORT TITLE: CONFLICT OF INTEREST: BD FISHERIES/GAME
SPONSOR(s): FISHERIES
02/18/21 (H) PREFILE RELEASED 1/8/21
02/18/21 (H) READ THE FIRST TIME - REFERRALS
02/18/21 (H) FSH, RES
02/25/21 (H) FSH AT 10:00 AM GRUENBERG 120
02/25/21 (H) -- MEETING CANCELED --
03/12/21 (H) BILL REPRINTED
03/16/21 (H) FSH AT 11:00 AM GRUENBERG 120
WITNESS REGISTER
THATCHER BROUWER, Staff
Representative Geran Tarr
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Introduced HB 26 on behalf of the House
Special Committee on Fisheries, sponsor.
GLENN HAIGHT, Executive Director
Board of Fisheries
Boards Support Section
Alaska Department of Fish and Game
Juneau, Alaska
POSITION STATEMENT: Provided invited testimony regarding HB 26.
FRANCES LEACH, Executive Director
United Fishermen of Alaska
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 26.
MARK RICHARDS, Executive Director
Resident Hunters of Alaska
Fairbanks, Alaska
POSITION STATEMENT: Testified in support of HB 26 as currently
written.
VIKKI JO KENNEDY
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 26.
MALCOLM MILNE, President
North Pacific Fisheries Association
Homer, Alaska
POSITION STATEMENT: Testified in support of HB 26.
BEN MOHR, Executive Director
Kenai River Sportfishing Association
Soldotna, Alaska
POSITION STATEMENT: Testified in opposition to HB 26.
ACTION NARRATIVE
11:00:35 AM
CHAIR GERAN TARR called the House Special Committee on Fisheries
meeting to order at 11:00 a.m. Representatives Vance, Story,
McCabe, Kreiss-Tompkins, Ortiz, Stutes, and Tarr were present at
the call to order.
HB 26-CONFLICT OF INTEREST: BD FISHERIES/GAME
11:01:27 AM
CHAIR TARR announced that the only order of business would be
HOUSE BILL NO. 26, "An Act relating to participation in matters
before the Board of Fisheries and the Board of Game by the
members of the respective boards; and providing for an effective
date."
CHAIR TARR pointed out that this legislation was introduced by
Representative Stutes at the beginning of the session. Then, on
[3/12/21] the House Special Committee on Fisheries made it into
a committee bill. She invited Representative Stutes to make
opening remarks.
11:02:02 AM
REPRESENTATIVE STUTES shared that she sponsored this legislation
as House Bill 87 in the Thirtieth Alaska State Legislature and
as House Bill 35 in the Thirty-First Alaska State Legislature.
She explained that HB 26 would allow both the Board of Game and
Board of Fisheries to benefit from the expertise of their
members, facilitating more informed decisions and stronger
resource management. The legislation has been well supported
over the years. Last year it went as far as the Senate, but the
legislature left early [due to the COVID-19 pandemic]. United
Fishermen of Alaska has been very supportive of this legislation
for 14 years. The bill provides that when a board member is
conflicted out, he or she may join in on the conversation and
discussion but may not vote.
11:03:39 AM
THATCHER BROUWER, Staff, Representative Geran Tarr, Alaska State
Legislature, introduced HB 26 on behalf of the House Special
Committee on Fisheries, sponsor. He drew attention to the
various documents provided in the committee packet for committee
members to consult for background information or help in
answering questions. He stated that HB 26 would change the way
the Board of Fisheries and the Board of Game function by
allowing members to deliberate on the subjects for which they
have declared a personal or financial interest according to AS
39, the Alaska Executive Branch Ethics Act ("Ethics Act").
Consistent with current law, the legislation still precludes
members with a conflict of interest from voting.
MR. BROUWER noted that board members are currently required to
divulge a conflict of interest if they or their immediate family
members are involved in a subject that is being deliberated.
The conflicted member can no longer vote or even deliberate on
that issue. The Ethics Act defines immediate family member as a
spouse, a conjugal co-habitant, child, stepchild, adopted child,
parent, sibling, grandparent, aunt, uncle, and spouse's parents
and siblings. Title 39 currently prohibits a public officer
from taking or withholding official action to affect a matter in
which the member has personal or financial interest. Official
action is defined as advice, participation, or assistance,
including for example a recommendation, decision, approval,
disapproval, vote, or other similar actions. In other words,
the member cannot deliberate on the topic that is before the
Board of Game or Board of Fisheries.
11:06:03 AM
MR. BROUWER said financial interest is defined as interest held
by a public officer or immediate family member which includes
involvement or ownership in a business that is a source of
income, or from which will result in a person receiving or
expecting to receive some financial benefit. It also includes
holding a position in the business such as an officer, director,
trustee, partner, employee, or the like, or holding a position
of management in that business. Personal interest is defined as
an interest held or involvement by a public officer or the
officer's immediate family member, including membership in an
organization, fraternal, nonprofit, for profit, charitable, or
political, from which or as a result from which a person or
organization receives a benefit.
MR. BROUWER stated that HB 26 clarifies that a conflicted member
can lend his or her expertise to the discussion while still
being unable to vote on that matter. He pointed out that
members of the Board of Fisheries and Board of Game are selected
based on their "knowledge and ability in the field of action of
the board and with a view of providing diversity of interest and
points of view in membership." So, he continued, HB 26 would
allow those members to share their knowledge and would allow the
members of the full board to make the sound resource management
decisions with all the available information. Often in the
fishing and hunting world, financial or personal interests are
tied to knowledge of a particular fishery or hunt. The person
with an aunt, uncle, or brother who owns a permit or a guide
license or the person who owns a permit or license themselves
may be the only person on the board who understands the nuances
of what is being discussed. An example of how common it is for
a member of the board to recuse themselves is that in the 2017-
2018 Board of Fisheries meeting cycle, a board member had to
recuse him/herself from 54 of the 242 proposals that were before
the board, that's 22 percent of the time. Both the Board of
Fisheries and Board of Game are tasked with allocating Alaska's
precious resources.
11:08:23 AM
REPRESENTATIVE VANCE requested a description of how the changes
proposed in HB 26 would affect what legislators are required to
disclose or declare as a conflict of interest.
MR. BROUWER replied that HB 26 deals with the Alaska Executive
Branch Ethics Act. The Legislative Ethics Act is quite
different in that legislators disclose their conflicts of
interest but are still allowed to vote on the matter. [Under HB
26], a member of the Board of Fisheries or Board of Game would
be able to disclose that information and that would allow them
to deliberate, but it would not allow them to vote. So, it
would still be more restrictive than the Legislative Ethics Act.
REPRESENTATIVE VANCE posed a scenario in which a board member
declares a conflict of interest and asked whether that conflict
could be overridden by a majority vote of the board members.
MR. BROUWER offered his understanding that if there is a vote of
the majority of members [the conflicted] board member [could be]
allowed to participate and to vote. He deferred to Mr. Glenn
Haight to provide clarification. In further response, Mr.
Brouwer confirmed that HB 26 just allows for deliberation but
not a direct vote in the matter.
11:10:47 AM
The committee took an at-ease from 11:10 a.m. to 11:18 a.m. to
address technical difficulties with the online audio system.
11:18:30 AM
MR. BROUWER provided a sectional analysis of HB 26 as follows:
Section 1 would amend AS 39.52.220(b) to allow Board of Game or
Board of Fisheries members to take official action, defined by
Section 3 of the bill as deliberating but not voting on a matter
that they have a personal or financial interest in. Section 2
would amend AS 39.52.220(a) to exempt Board of Fisheries and
Board of Game members from the provision in the Alaska Executive
Branch Ethics Act that prevents them from deliberating on
matters that they have a personal or financial interest in.
Section 3 would amend AS 39.52.220 by adding a new section that
allows Board of Fisheries and Board of Game members with a
personal or financial interest in a matter to deliberate but not
vote [on that proposal or subject being considered by the
board]. Section 4 would establish an immediate effective date.
11:19:52 AM
REPRESENTATIVE STORY stated that, generally, she sees the wisdom
behind the intent of the bill, and it makes her think about how
it works in tandem with appointments to the board that it
should as much as possible represent all the stakeholders
because they will be giving their opinions. She noted that
statute does not state a certain designation for stakeholders on
the board, but that it has been a traditional practice to try to
get representation from the different stakeholders. She
requested clarification in this regard because she is concerned
about assuring that the expertise is balanced, so to speak.
REPRESENTATIVE TARR responded that she can definitively say the
statute does not designate representation. She said historical
tradition has been to have three commercial positions, three
sport positions, and one subsistence position. As well, she
added, there has been some geographic historical tradition that
more recently has not been as closely followed.
REPRESENTATIVE STUTES said that when working on this legislation
there was tremendous pushback on those issues. It was therefore
decided that the most important thing was to allow for the area
of expertise to participate and she backed away from [including
either of the two historical traditions in the bill].
REPRESENTATIVE STORY expressed her hope that the practice would
be upheld by administrations.
11:22:12 AM
REPRESENTATIVE KREISS-TOMKINS commented that he is robustly
supportive of HB 26.
11:22:36 AM
REPRESENTATIVE STUTES added that HB 26 allows a little more
transparency because when an individual is excluded from giving
his or her area of expertise the member still does it, but just
not in public. The bill would therefore provide the public with
more transparency.
11:23:19 AM
GLENN HAIGHT, Executive Director, Board of Fisheries, Boards
Support Section, Alaska Department of Fish and Game (ADF&G),
provided invited testimony regarding HB 26. He noted that the
Boards Support Section facilitates the work of the Board of Game
and Alaska's 80-plus locally led fish and game advisory
committees. He stated that the Ethics Act factors heavily into
the board meeting process. Prior to board meetings the members
are encouraged to review the proposals, which can number between
20 and 200 proposals, and see whether they have any potential
conflicts. To the extent they do, members are encouraged to
work with the chair who is the ethics supervisor for the board
and to also work with the attorney general's office to figure
things out so that coming into a meeting members know which
proposals they likely will be conflicted out of. At the start
of every meeting, ethics disclosures are made and handled there.
It is not unusual for there to not be any conflicts, there is
often a couple, but occasionally there are dozens.
MR. HAIGHT drew attention to page 4 of the background document
on the Ethics Act process and stated that the Board of Fisheries
has many more allocative monetary issues than does the Board of
Game, which is what creates a lot of those conflicts. For the
Board of Fisheries, he noted that every three years starting
from 2005/2006 a bit of a bump can be seen in the number of
recusals, which is the Southeast finfish meeting. He related
that the board has a longstanding member from Petersburg who has
family members in the commercial fisheries and the member has a
few permits as well, which creates dozens of recusals for that
one individual at that meeting. So, it can be seen from this
document how this impacts meetings from year to year and that it
depends on the subject matter and the board members.
11:25:55 AM
MR. HAIGHT spoke to personal and financial conflicts. He said
he has not seen many personal conflicts but recalled one where a
board member's brother was an attorney who worked for a
corporation that had crafted a proposal and the brother was
advocating for the proposal at the board meeting. The board
member recused himself from anything dealing with that proposal.
The other example was where a board member's wife was testifying
for her corporation against a proposal. The chair found that
that created a personal conflict and in that instance the board
member did not agree. When that happens, the determination can
be challenged and then it's up to the rest of the board to vote
on it. At that specific meeting the individual was recused from
that proposal. That starts to address Representative Vance's
question, Mr. Haight continued, about whether a board can
override an ethics conflict. Once a conflict is determined a
board member needs to step down. He said he has not seen a time
where a conflict has been determined, a board member agrees he
or she is conflicted, and the rest of the board votes to allow
them that does not happen. The board member can challenge a
determination and then the board must vote on that, but once
someone is conflicted out, he or she is not participating.
MR. HAIGHT said financial conflicts are much more common. He
advised that here is not a lot of case law that helps guide the
Ethics Act and how the boards work with it. But, he continued,
one court finding said that there is a threshold of $5,000 and
when that is approached it meets the threshold of substantial.
So, when reviewing proposals board members will think about
whether it can impact them to that extent, but it isn't hard and
fast and board members are challenged in figuring out whether
they have a potential conflict.
MR. HAIGHT stated that meetings are fairly standard there are
always introductions, ethics disclosures, staff reports, and
public testimony. He said the Board of Fisheries has committees
that go through each proposal with the participants and then
there are deliberations. The way conflicts of interest are
currently treated is that board members who have an ethics
conflict will stay at the table through staff reports and public
testimony, but once into committee or deliberation a conflicted
individual will stand up and go to the audience or remove
himself or herself from the table. He offered his understanding
that under HB 26 conflicted board members would simply stay at
the table and be able to ask questions through the deliberations
and participate in discussing the merits, but simply could not
vote.
11:29:36 AM
FRANCES LEACH, Executive Director, United Fishermen of Alaska
(UFA), testified in support of HB 26. She noted that UFA is the
largest commercial fishing organization in Alaska, composed of
37 multi-gear and regional commercial fishing groups. She
stated that for over 10 years UFA has supported the conflict-of-
interest bill for the Board of Fisheries and Board of Game.
MS. LEACH related that before coming to UFA she worked several
years for the Board of Fisheries. From attending over 50
meetings of the Board of Fisheries and Board of Game, she said
she has seen firsthand how this bill would be beneficial to the
board and public process that these boards are known for.
Currently, a board member with a conflict on a proposal is not
allowed to participate in the deliberations. Yet, Board of
Fisheries and Board of Game members are chosen by the governor
to represent their region and because they have expertise in
fisheries, be it sport, commercial, subsistence, or a science
background in fisheries. For comparison, she posed a scenario
in the legislature of a committee holding a hearing on a bill to
rename a bridge in a town within a legislator's district. She
pointed out that if the legislature followed the Board of
Fisheries and Board of Game rules, the legislator for that
district would be asked to leave the table and go sit with
members of the public, unable to weigh in or provide any
insight. When fellow legislators asked questions about the
bridge the legislator would not be able to answer. She said
this is what is happening on the Board of Fisheries and Board of
Game right now. Ms. Leach attested that she has seen what
Director Haight described where board members talk to the board
members who have been conflicted out and ask them about their
insight, all of which is off the record. It would be so much
better, she maintained, to have these discussions on the record
before the public and for all board members to benefit from.
11:31:55 AM
MS. LEACH addressed the other objective brought up by
Representative Story about getting board members from different
regions and qualified board members. She said UFA is often
trying to find good candidates for the Board of Fisheries whose
names can be provided to the governor. However, UFA often hears
that people don't want to put their names in because they know
they are going to conflict out on most of the proposals, for
which board member John Jensen is a great example. In Southeast
Alaska she has seen Mr. Jensen conflict out of many proposals,
yet he is the expert for Southeast and is supposed to be the
voice. It's a shame, she continued, because people making
decisions for Alaska's precious wildlife and fishery resources
should be qualified and bringing expertise to the table; they
should not be muted.
MS. LEACH noted that HB 26 would not allow the board members to
vote. It would just allow them to share their knowledge and
expertise during transparent deliberations, which would benefit
everyone. This bill will benefit all user groups, she added,
not just commercial fishermen. She concluded by stating that
UFA looks forward to continuing its support of HB 26.
11:33:17 AM
REPRESENTATIVE KREISS-TOMKINS asked whether a board member who
is conflicted out can move to the public seating at that meeting
and then come forward as a member of the public to testify on
proposals.
MS. LEACH offered her belief that that has happened in the past,
but that the member could not offer comment during the
deliberations. She deferred to Mr. Haight to provide a
definitive answer.
MR. HAIGHT responded that board members are advised that if they
are recused, they may provide public testimony. He also noted
that a recused Board of Fisheries member can engage in that
board's committee process, but he hasn't seen it happen a lot.
11:34:54 AM
MARK RICHARDS, Executive Director, Resident Hunters of Alaska
(RHAK), testified in support of HB 26 as currently written. He
stated that RHAK is a hunting conservation organization with
about 3,000 members that advocates for resident hunting
priority. He noted that RHAK supported this legislation during
the last session. He said he is well versed in what goes on at
meetings because for the past 15 years he has attended every
Board of Game meeting for RHAK and has attended various Board of
Fisheries.
MR. RICHARDS advised that the problem the bill's sponsor is
trying to correct is that the member of either board who has a
conflict is often the most knowledgeable about that specific
proposal, and the fish or wildlife resource, and should be
allowed to at least participate in the on-the-record
deliberations while still being recused from voting. There
should be no allusions of what goes on when members of either
board are not on the record, he added, members speak to one
another privately on issues before them. For example, when a
member is conflicted out because he or she commercial fishes in
an area that a proposal seeks to modify, it is only prudent to
ask that member for his or her thoughts about that fishery
resource, harvest limits, catches, and allocations. He
maintained that having those discussions on the record among all
board members during deliberations would benefit everyone and
give the public a better understanding of the issue. However,
Mr. Richards clarified, RHAK does not support allowing members
with a conflict of interest to vote on that proposal.
11:37:18 AM
REPRESENTATIVE KREISS-TOMKINS asked whether RHAK has supported
previous iterations of this legislation.
MR. RICHARDS replied yes, RHAK supported the legislation during
the last session.
11:38:01 AM
REPRESENTATIVE TARR opened public testimony on HB 26.
11:38:12 AM
VIKKI JO KENNEDY, testified in support of HB 26. She said she
agrees that [conflicted board members] should not be able to
vote, but that their expertise is needed.
11:39:57 AM
MALCOLM MILNE, President, North Pacific Fisheries Association
(NPFA), testified in support of HB 26. He noted that NPFA is a
commercial fishing industry group based in Homer, comprised of
about 80 members. He said NPFA has supported this legislation
all along in its different versions and continues to support the
bill in its current version of HB 26. He said he echoes all the
information that has been provided in favor of HB 26 and urged
the bill be moved forward.
11:41:00 AM
BEN MOHR, Executive Director, Kenai River Sportfishing
Association (KRSA), testified in opposition to HB 26. He stated
that KRSA does not see the need at present to modify the
longstanding ethical guidelines that are applied to an
allocative body like the Board of Fisheries. He said the
current conflict of interest procedures already allow for a
conflicted board member to participate in the public process and
arguably to a greater degree than the public on matters where
the member has a direct financial interest.
MR. MOHR maintained that formal deliberations are the part to
emphasize within the process of how proposals move through a
board meeting. He likened the formal deliberation as the
closing argument on a matter the final opportunity for board
members to sway one another and the time to assure that all the
boxes are checked off for the board's legal obligations.
Allowing a conflicted member to participate to a greater degree
in deliberations, he stated, could have impact on how the actual
proposal is implemented long term.
MR. MOHR asserted that HB 26 would expand the influence of board
members who have direct financial interest in matters under
consideration. He said current conflict procedures are not new,
unknown, nor untested because they have been in place a long
time and have been reasonably effective. He expressed KRSA's
belief that loosening the long-standing ethical guidelines for
this allocative body is not in the public interest.
11:43:10 AM
REPRESENTATIVE TARR closed public testimony after ascertaining
no one else wished to testify.
11:44:16 AM
REPRESENTATIVE VANCE noted there has been concern about undue
influence. For example, as stated by the last witness, passage
of HB 26 would give board members influence on decisions. But,
she continued, as stated by an earlier witness, questions are
asked off the record and deliberations among board members occur
because of that board member's expertise on the topic under
deliberation. She asked whether there are ethical repercussions
if someone were to witness these deliberations off the record.
MR. HAIGHT replied that he does not personally get involved in
discussions about proposals with board members, so he does not
have any direct experience on that. He cited the Open Meetings
Act, which for the Board of Fisheries prevents more than four
board members from getting together off the side and talking
about things. But, he continued, he doesn't know that there is
anything that prevents a board member who has been recused from
talking about it off to the side. He said he doesn't fully know
what the answer is to Representative Vance's question.
REPRESENTATIVE VANCE commented that all kinds of stories are
heard about what goes on regarding members' deliberations and
influence. She said it seems that HB 26 would provide more
transparency to the public if these discussions were on the
record, so she finds it interesting that there is opposition to
having this on the record, yet the conflicted members can still
provide public testimony. She offered her hope that this
complicated process can be simplified and provide transparency
for everyone involved.
11:46:53 AM
[HB 26 was held over.]
11:47:19 AM
ADJOURNMENT
There being no further business before the committee, the House
Special Committee on Fisheries meeting was adjourned at 11:47
a.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 26 Sponsor Statement 3.12.21.pdf |
HFSH 3/16/2021 11:00:00 AM |
|
| HB 26 Version A 2.18.21.PDF |
HFSH 3/16/2021 11:00:00 AM HFSH 3/18/2021 11:00:00 AM |
HB 26 |
| HB 26 Fiscal Note - DFG-BFG 2.19.21.pdf |
HFSH 3/16/2021 11:00:00 AM HFSH 3/18/2021 11:00:00 AM |
HB 26 |
| HB 26 Boards of Game and Fisheries Ethics Process Overview and Recusals 2.1.21.pdf |
HFSH 3/16/2021 11:00:00 AM HFSH 3/18/2021 11:00:00 AM HRES 3/31/2021 1:00:00 PM HRES 4/9/2021 1:00:00 PM |
HB 26 |
| HB 26 Informational Document BOF-BOG History and Process 03.06.19.pdf |
HFSH 3/16/2021 11:00:00 AM HFSH 3/18/2021 11:00:00 AM HRES 3/31/2021 1:00:00 PM HRES 4/9/2021 1:00:00 PM |
HB 26 |
| HB 26 Letters of Support 3.16.21.pdf |
HFSH 3/16/2021 11:00:00 AM HFSH 3/18/2021 11:00:00 AM HRES 3/31/2021 1:00:00 PM HRES 4/9/2021 1:00:00 PM |
HB 26 |
| HB 26 Sectional Analysis 3.14.21.pdf |
HFSH 3/16/2021 11:00:00 AM HFSH 3/18/2021 11:00:00 AM |