Legislature(1995 - 1996)
03/20/1996 05:05 PM House FSH
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE SPECIAL COMMITTEE ON FISHERIES
March 20, 1996
5:05 p.m.
MEMBERS PRESENT
Representative Alan Austerman, Chairman
Representative Scott Ogan
Representative Gary Davis
Representative Kim Elton
MEMBERS ABSENT
Representative Carl Moses, Vice Chairman
COMMITTEE CALENDAR
* HOUSE BILL NO. 542
"An Act relating to participation in matters before the Board of
Fisheries by members of the board."
- PASSED CSHB 542(FSH) OUT OF COMMITTEE
* HOUSE BILL NO. 504
"An Act relating to the types of seafood promotions and promotional
contracts that can be made by the board of the Alaska Seafood
Marketing Institute."
- SCHEDULED BUT NOT HEARD
(* First public hearing)
PREVIOUS ACTION
BILL: HB 542
SHORT TITLE: BOARD OF FISH VOTING ETHICS
SPONSOR(S): COMMUNITY AND REGIONAL AFFAIRS
JRN-DATE JRN-DATE ACTION
03/13/96 3114 (H) READ THE FIRST TIME - REFERRAL(S)
03/13/96 3114 (H) FISHERIES, RESOURCES
03/20/96 (H) FSH AT 5:00 PM CAPITOL 124
WITNESS REGISTER
NICK SZABO
P.O. Box 1633
Kodiak, Alaska 99615
Telephone: (907) 486-3853
POSITION STATEMENT: Supported HB 542.
BRUCE SCHACTLER
P.O. Box 2254
Kodiak, Alaska 99615
Telephone: (907) 486-4686
POSITION STATEMENT: Supported HB 542.
JEFF STEPHANS
United Fishermen's Marketing Association
P.O. Box 1035
Kodiak, Alaska 99615
Telephone: (907) 486-3453
POSITION STATEMENT: Supported HB 542.
NEIL SLOTNICK, Assistant Attorney General
Civil Division (Juneau)
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3600
POSITION STATEMENT: Answered questions on HB 542.
ACTION NARRATIVE
TAPE 96-15, SIDE A
Number 0001
CHAIRMAN ALAN AUSTERMAN called the House Special Committee on
Fisheries meeting to order at 5:05 p.m. Members present at the
call to order were Representatives Austerman, Davis and Elton;
Representative Ogan joined the meeting at 5:34. Absent was
Representative Moses.
HB 542 - BOARD OF FISH VOTING ETHICS
Number 0044
CHAIRMAN AUSTERMAN explained that he had introduced HB 542 through
the House Community and Regional Affairs Committee. Basically, the
bill changed the handling of conflicts of interest by the Board of
Fisheries. Currently, when a board member had a conflict of
interest, the conflict was stated by the member and the board ruled
on it. "Part of the problem that we're having with that system
right now is that, also, the Attorney General's Office has the
ability to offer a letter of opinion on whether there is really a
conflict and whether that member ... should or should not vote on
an issue in front of the board," he said. As a result of those
opinions, members with a conflict could neither participate in
discussions nor vote on issues relating to that conflict. For
example, a salmon fisherman who had one permit out of 800 had been
ruled to have a conflict and thus was unable to testify on salmon
issues.
CHAIRMAN AUSTERMAN said, "The essence of what I've done with this
bill is to make it mandatory for a member of the board to
participate in all activities of the board, that he has to declare
a conflict of interest but he does have to vote, very similar to
what we, as legislators, have to do. It also removes the ability
of the Attorney General to say, one way or the other, whether a
person can vote or cannot vote."
Number 0247
REPRESENTATIVE KIM ELTON stated his understanding that the bill
allowed a person to declare a conflict and then have the board vote
on whether or not that person was allowed to opt out.
CHAIRMAN AUSTERMAN replied, "No, if my bill is enacted in law, it
will not allow them to opt out at all."
REPRESENTATIVE ELTON pointed out that in the legislature, the body
decided whether or not to allow a person to opt out of voting. He
wondered if there might be, at times, conflicts serious enough to
allow the Board of Fisheries to decide whether a person should be
allowed to opt out of voting. That would at least protect
perceptions, and, in some cases, would provide a cloak of
protection to a member who would then have to decide whether to do
what they thought was right, or to vote in a manner that would
minimize accusations of self-interest. Representative Elton asked
if there had been any consideration of that middle ground.
Number 0362
CHAIRMAN AUSTERMAN replied, "At this point in time, no." He
explained that the Board of Fisheries, as well as the Board of
Game, was a lay board for which people were expected and required
to have expertise in certain areas. "We ask them to have that
expertise, but then, when we get them there ... we don't let them
vote," he said. Chairman Austerman believed that when someone was
asked to sit on the board as a salmon fisherman, for example, there
should be an understanding that there was an inherent conflict in
salmon issues or fishing issues.
Number 0428
REPRESENTATIVE ELTON outlined a scenario where the board would be
asked to endorse the fish initiative. If a board member had helped
to draft that initiative, there would be a conflict.
Representative Elton suggested, under such a scenario, it may be to
a member's advantage and may protect the integrity of the board if
the board was allowed the option of saying, "we accept your
declaration [of conflict] and we accept your request not to vote on
the issue."
Number 0508
CHAIRMAN AUSTERMAN responded that he considered it part of the job
of being a board member. "As long as it's declared and everything
is up-front, and everybody knows what your conflict of interest is
when you vote, I see nothing wrong with it," he said, indicating it
would give the board the power to discuss and react to the
different issues before it. With the present forum, both
discussion and input were often disallowed from the member who had
the expertise.
Number 0568
REPRESENTATIVE GARY DAVIS stated his understanding that there were
seven board members. He asked if a majority of members present was
required to take action. He suggested that with all their issues
related to fish, and all members belonging to fisheries entities of
one kind or another, there would always be someone abstaining. He
asked how often abstention was requested.
Number 0629
CHAIRMAN AUSTERMAN replied he had no answer.
CHAIRMAN AUSTERMAN emphasized his opinion that the Board of
Fisheries was a lay board and that members placed themselves in
that position when they volunteered to serve on the Board of
Fisheries. That was the reason he had drafted the legislation, he
said.
Number 0676
REPRESENTATIVE ELTON expressed that he thought Chairman Austerman
was making an important point. "My understanding of the situation
is, the way the Department of Law is now interpreting the interest
ethics provisions, is that it is ... removing from people the
ability to vote, whether the board wants that removal to occur or
not," he said. He questioned whether the answer was a blanket
provision requiring a member to vote. He suggested that, instead,
a person could declare a conflict, ask to be excused from voting,
and allow the board to decide. Then, in those few, extraordinary
circumstances, the board could prohibit voting where necessary.
"That way, it's a voluntary decision made by the board, rather than
a mandatory decision, as it's now applied," he said.
CHAIRMAN AUSTERMAN noted that Nick Szabo, a past Board of Fisheries
chairman, was on teleconference to testify and answer questions.
Number 0797
NICK SZABO testified via teleconference from Kodiak in support of
HB 542. A member of the Board of Fisheries from 1975 to 1982, he
had recently attended a meeting of past and present board chairmen,
called by Chairman Austerman, where all present had fully agreed
that the change proposed in HB 542 was most needed.
MR. SZABO said, "Fisheries management and allocation decisions are
very important to Alaska's economy. We need the full participation
of members who are highly knowledgeable and widely experienced in
a variety of different fishery uses. The issues are too complex
and too important to risk their outcome on a board that doesn't
fully understand all the implications of their decisions."
MR. SZABO continued: "People with a lot of knowledge and
experience are likely to have both a financial and a personal
interest in an issue. However, the executive branch Ethics Act
prohibits participation by a member with a financial or personal
interest in the matter. With only a seven-member board that
requires four votes, regardless of how many are in attendance, to
pass an action, the Ethics Act frustrates the intent to have a
board that is composed of members with knowledge and experience."
Number 0904
MR. SZABO said, "At one time, the board had four members who held
Bristol Bay salmon permits. Under the present legal opinions, that
board couldn't function on any action that dealt with Bristol Bay.
There have been other situations where only four or five members
have been ruled eligible to participate in the board meeting. An
action to change the status quo had failed by a 3-2 vote, yet a
motion to approve findings to document the board's reasons for not
changing the status quo also failed because only a small number
were allowed to vote."
MR. SZABO concluded: "To those who say this is an outrageous
proposal and violates the public trust, I believe there are other
ways to protect the public's interest while still allowing
participation by members who are involved with the issues. The
board could be required to document the reasons for an action by
findings of fact. These findings would give the public a written
basis for a controversial board decision. Possibly, each board
member could additionally be required to produce personal findings
explaining to the public their reasons for a particular vote.
These additional obligations would require increased staff support,
but if the board is to retain some autonomy from the Administration
and the legislature, then they are very much needed and long
overdue."
Number 1142
REPRESENTATIVE ELTON asked Mr. Szabo whether, instead of a blanket
mandate that lay members must participate, a system could be
instituted in which a member declared a conflict, with the board
then deciding whether the conflict was serious enough to excuse the
member from the vote. This was similar to the legislature's
system, he said, adding that he could not recall a situation where
a legislator had actually been asked not to vote.
Number 1086
MR. SZABO agreed there may be some extreme circumstances where a
board member may have an exclusive interest from which only he or
she may benefit. "I guess that it wouldn't hurt to put some
exceptional provision in there, but I can't think of too many times
when it would actually need to be exercised," he said.
Number 1154
BRUCE SCHACTLER testified via teleconference from Kodiak in support
of HB 542. He expressed agreement with Mr. Szabo's testimony,
which he thought had pretty well covered the issue. "It's the
biggest problem that we had with the board," he said, "the loss of
the expertise that we've made such a big deal about putting on
there." He emphasized that currently, members with conflicts could
not be involved in conversations or the learning process a board
went through about an issue. "Something has to be done about this
conflict of interest, because we're just not getting the job done
with the right people, even though the right people are available
for the job," he concluded.
Number 1240
JEFF STEPHANS, United Fishermen's Marketing Association, testified
via teleconference from Kodiak in support of HB 542. He believed
that the board had been ham-strung by the current Ethics Act and
wanted to see the board operate where individual members were all
allowed to vote after stating their conflicts. "The issue really
is in the exercise of the conflict, not whether someone has a
conflict," he said. "We believe that you want people on there who
have the experience and investment in whatever facet of the
industry - the fishing business - that they're in, whether it be
recreational or sport or subsistence." He stated, "We'd like to
see the legislature, somewhere along the line, require that the
findings be required any time the board adopts a regulation and
that they prove that a reasonable and rational consideration was
given to the alternatives, and that any time they change the status
quo or adopt a regulation, that there be a little bit more
justification for their action."
Number 1381
NEAL SLOTNICK, Assistant Attorney General, Civil Division (Juneau),
Department of Law, pointed out what he saw as a potential technical
problem in Section 3, which currently read: "Notwithstanding the
prohibition against taking or withholding official action in (b)(4)
of this section, a public officer who is a member of the Board of
Fisheries must participate in matters before the board even if the
member has a personal or financial interest in the matter." Mr.
Slotnick explained, "My problem is with the language
`notwithstanding the prohibition against taking or withholding
official action in (b)(4) of this section'." He referred to
AS39.52.120(a) and said it also included a prohibition against
using or attempting to use an official position for personal gain.
He said, "Now, the Department of Law has always interpreted the
listing of specific prohibitions contained in (b) of .120 as being
subsets of part (a), which is much broader, using or attempting to
use your official position for personal gain. This language here
seems to distinguish between the two. It might imply that (b)(4)
is not a subset of .120(a). And I see potential interpretation or
implementation problems here if we're trying to distinguish between
using or attempting to use your official position for personal gain
from taking or withholding official action in a matter in which you
have a personal or financial interest." He suggested that the
current committee, or a subsequent committee, consider language
exempting the board member from the reach of .120(a), as well as
.120(b)(4).
Number 1493
CHAIRMAN AUSTERMAN asked for clarification.
MR. SLOTNICK expressed concern over what .120(a) might apply to
that was different from .120(b)(4). "For me, as the attorney who
must implement the executive branch Ethics Act, it creates a
dilemma of sorts," he said, explaining that .120(b) had several
different listings of things that were prohibited. The Department
of Law had always read that as a subset of the broad prohibition in
.120(a), which was against using an official position for personal
gain. "By making this distinction, it implies to me that maybe our
interpretation might not be right," he said. "It certainly raises
that potential argument if you're singling out only (b)(4) as ...
the exemption here." He emphasized that it was a technical problem
with the drafting.
Number 1558
REPRESENTATIVE DAVIS agreed, saying that the wording in AS
52.120(a) was still in there. "And that says a public officer may
not use or attempt to use an official position for personal gain
and may not intentionally secure or grant unwarranted benefits or
treatment for any person," he said. "If we're making a person vote
on something that he's going to have a financial interest in, it's
contrary to that."
MR. SLOTNICK responded, "I could see a potential conflict in
implementing this."
CHAIRMAN AUSTERMAN asked Mr. Slotnick for his recommendation.
Number 1624
MR. SLOTNICK suggested that wording such as "notwithstanding any
other prohibition contained in this act" might be used. He
clarified that he was not taking a position on HB 542 but was
trying to help the committee implement its objective. He noted
that Amy Daugherty, Legislative Aide to Representative Austerman,
might have had language drafted to that effect; Ms. Daugherty
subsequently handed out a new draft version of the bill, work
draftG, dated 3/20/96.
CHAIRMAN AUSTERMAN explained to Representative Ogan, who had
recently joined the meeting, that the committee was looking at
Section 3, page 2 and considering a possible amendment. Before the
committee was the redraft of that section.
REPRESENTATIVE DAVIS asked if a committee substitute had been
adopted.
CHAIRMAN AUSTERMAN replied no. He then noted that on page 2,
Section 3, where it said, "Notwithstanding the prohibition against
taking or withholding official action in (b)(4) of this section",
the new language would read: "Notwithstanding any other provision
of this chapter". Chairman Austerman asked if there was discussion
or any problem with that language. He then substituted version G
of the bill for version F, which had been before the committee but
had not been formally accepted as a work draft.
Number 1820
REPRESENTATIVE DAVIS moved that the committee accept work draft G,
dated 3/20/96, as a committee substitute for HB 542.
CHAIRMAN AUSTERMAN, hearing no objection to the motion, noted that
the committee was officially using work draft G.
REPRESENTATIVE ELTON said although he saw a need for the bill, he
was bothered by what he sensed was a different application of the
rules among boards.
MR. SLOTNICK emphasized that he was not speaking for the
Administration or the Department of Law. However, he had heard the
view that if a variant of the legislative ethics model was going to
be adopted, they should consider adopting it for all quasi-
legislative bodies. He did not believe there had been deliberate
differential application of the Ethics Act among the various boards
and commissions. "The question is whether an individual member
actually has a significant financial interest in the specific
matter," he said. "And, if so, that's when that specific member
must recuse him[self] or herself." He suggested there had been
many situations, on many boards, where people had been required to
recuse themselves.
Number 1961
CHAIRMAN AUSTERMAN agreed there had been suggestions that this
approach should, perhaps, be applied to all boards in the same
manner. "In our experience, and the information we've been able to
find out, there's only one of them that's not working right now,
and not working very well, and that is the Board of Fish[eries," he
said. The Board of Game, for example, did not have the same kind
of problems. "I've never been in favor of just going and changing
things or trying to fix a wheel that's not broke," he said,
indicating that although other boards did not have the problem, the
Board of Fisheries needed this change in order to function
properly.
Number 2011
REPRESENTATIVE SCOTT OGAN pointed out that the Board of Game did
not have members who were commercial users, with the possible
exception of a guide. He wanted to know whether the Board of
Fisheries was required to have specified types of members in order
to create balance. He suggested it might behoove the legislature
to consider redefining the numbers of commercial fishermen, sports
fishermen, public members, and so forth. "Because that's how the
Big Game Commercial Services Board was set up," Representative Ogan
said, "because there [were] conflicting interests. Then, there
wasn't a problem with a conflict of interest because there was a
balance in the structure of the board."
Number 2080
CHAIRMAN AUSTERMAN stated he would be happy to look at some other
structuring of how the Board of Fisheries members were appointed.
However, he did not envision that happening currently. In lieu of
that, he thought this was the correct step under the current
system. "It's either that or we go to a professional board," he
said. He indicated that there may not be support to put
professional board legislation through this year. He expressed
concern over having the Board of Fisheries be ineffective over the
next year.
REPRESENTATIVE DAVIS asked about the current make-up of the board.
REPRESENTATIVE ELTON replied there were no designated seats.
CHAIRMAN AUSTERMAN explained the Governor attempted to balance the
board as well as he could when making appointments. To Chairman
Austerman's understanding, there was nothing in statute that
specified who those appointees would be.
REPRESENTATIVE ELTON said that each governor had a different view
of what that balance actually was.
CHAIRMAN AUSTERMAN reiterated that if a lay board was going to make
determinations on the resource, members should not be excluded from
a determination just because they happened to be involved in the
industry. Industry people were wanted on the board in the first
place, to make the proper and knowledgeable decisions, he said.
Number 2175
REPRESENTATIVE ELTON made a motion that CSHB 542 move from
committee with individual recommendations. There being no
objection, it was so ordered.
ADJOURNMENT
There being no further business to conduct, CHAIRMAN AUSTERMAN
adjourned the House Special Committee on Fisheries meeting at
5:45p.m.
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