Legislature(2009 - 2010)CAPITOL 120
01/28/2009 01:00 PM House JUDICIARY
| Audio | Topic |
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| Start | |
| Overview(s): Questioning of the Attorney General Regarding Legislative Subpoenas | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
January 28, 2009
1:08 p.m.
MEMBERS PRESENT
Representative Jay Ramras, Chair
Representative Nancy Dahlstrom, Vice Chair
Representative John Coghill
Representative Carl Gatto
Representative Bob Lynn
Representative Max Gruenberg
Representative Lindsey Holmes
MEMBERS ABSENT
All members present
OTHER LEGISLATORS PRESENT
Representative Kurt Olson
COMMITTEE CALENDAR
OVERVIEW(S): QUESTIONING OF THE ATTORNEY GENERAL REGARDING
LEGISLATIVE SUBPOENAS
- HEARD
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
TALIS COLBERG, Attorney General
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Responded to questions regarding
legislative subpoenas.
MARGARET PATON-WALSH, Assistant Attorney General
Labor and State Affairs Section
Civil Division (Anchorage)
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions regarding
legislative subpoenas.
ACTION NARRATIVE
1:08:41 PM
CHAIR JAY RAMRAS called the House Judiciary Standing Committee
meeting to order at 1:08 p.m. Representatives Ramras, Gatto,
Lynn, Gruenberg, Holmes, and Dahlstrom were present at the call
to order. Representative Coghill arrived as the meeting was in
progress. Representative Olson was also in attendance.
^OVERVIEW(S): QUESTIONING OF THE ATTORNEY GENERAL REGARDING
LEGISLATIVE SUBPOENAS
1:12:34 PM
CHAIR RAMRAS indicated that as the only order of business, the
committee would be seeking information from the attorney general
regarding the legislative subpoenas that were issued last year.
1:17:03 PM
TALIS COLBERG, Attorney General, Department of Law (DOL), in
response to comments, said that although [the DOL] feels that
legislative subpoenas, when properly issued, do have force, the
DOL was asserting what it believed to be legitimate legal
questions about the particular subpoenas that were issued, not
questions about the legislature's right to investigate or issue
subpoenas. The seven employees' appeal was distinct,
challenging the validity of the subpoenas they received, rather
than the general authority of the legislature. During the court
proceedings, however, another lawsuit was filed by a few
legislators and was joined with the DOL's lawsuit, but the DOL
never took the position asserted by those few legislators in
their lawsuit. The DOL, he assured the committee, never ordered
or directed people not to obey the subpoenas, but instead simply
presented them with legal options.
ATTORNEY GENERAL COLBERG opined that what the DOL did was not
extraordinary, unusual, or unprecedented, either in terms of
court proceedings or legislative subpoenas. On the latter
point, he noted that at one time, then Senator Jalmar Kerttula
challenged the validity of a legislative subpoena and, although
the Alaska Superior Court upheld that subpoena, the Alaska
Supreme Court ultimately quashed it. In this case, he
reiterated, the DOL was not challenging the legislature's
authority to conduct investigations or to issue subpoenas, but
was instead challenging how the subpoenas in question were
issued.
REPRESENTATIVE HOLMES offered her understanding that the Senate
Judiciary Standing Committee authorized a number of subpoenas,
half of which were served shortly thereafter though only a few
were complied with; that the remaining subpoenas were not served
because an agreement between the legislature and the
administration was reached regarding the conditions under which
the subjects of those subpoenas would cooperate without a
subpoena; that when that agreement "broke down," those remaining
subpoenas were issued; and that although a lawsuit was
subsequently brought, it was not brought until after the dates
listed on most of the subpoenas, particularly the first group of
subpoenas. She indicated that she is questioning the
correctness of the behavior of the subpoena recipients to simply
ignore the subpoena date and wait several days to see whether
the court concurred that they weren't required to honor the
subpoenas.
1:23:37 PM
ATTORNEY GENERAL COLBERG clarified that none of the people that
the DOL actually represented were scheduled to appear [before
the Senate Judiciary Standing Committee] before the DOL filed
its court action on their behalf, but acknowledged that those
people who had retained [outside] counsel may have been. He
went on to explain that when the concept of issuing subpoenas
was first brought up, there was reference to possible criminal
proceedings, and this reference alarmed his staff with regard to
what the subpoenas might be issued for; this in turn brought
about what he characterized as a nonbinding agreement. The
subpoenas were challenged within two days of when the last one
was issued, before any of the people the DOL represented were
scheduled to appear.
ATTORNEY GENERAL COLBERG pointed out that after the ruling by
the Alaska Superior Court, all seven of the people that were
represented by the DOL agreed to appear and provide statements,
and did so before the conclusion of the investigation.
CHAIR RAMRAS, after asking Attorney General Colberg who he
worked for, remarked that it didn't feel to him as though
Attorney General Colberg was working for Alaskans.
ATTORNEY GENERAL COLBERG replied that he works for several
people at the same time - the people, the state of Alaska, the
Alaska State Constitution, the departments, the State employees,
and the governor - but that he'd advised the governor to seek
outside legal counsel and so didn't represent her during the
aforementioned proceedings.
CHAIR RAMRAS opined that at the time, it was quite unclear
whether Attorney General Colberg was representing the citizens
of Alaska, or the executive branch, or "the candidacy of the
Republican party," or fourteen people, or seven people, or the
four people whom Mr. Barnhill said would come before [the
legislature] but whom three days later Attorney General Colberg
said wouldn't.
ATTORNEY GENERAL COLBERG indicated that the DOL was representing
the seven State of Alaska employees who'd been issued subpoenas.
1:32:46 PM
REPRESENTATIVE HOLMES relayed that she, too, was confused about
who was being represented by the DOL. She asked whether the DOL
specifically advised its clients not to testify. She referred
to a letter written by Michael Barnhill, a senior assistant
attorney general with the DOL, dated September 9, 2008, which in
part read [original punctuation provided]:
The purpose of this letter is twofold: First, to
explain why the Department of Law decided not to
proceed with the depositions of the Department of
Administration employees last week ....
REPRESENTATIVE HOLMES pointed out that Mr. Barnhill didn't use
the phrase, "why my clients decided not to participate." She
said that she is troubled by that phrasing in the letter.
ATTORNEY GENERAL COLBERG, in response to a question, relayed
that ultimately the decision of whether to comply with the
subpoenas was made by the individual employees themselves; that
although he didn't recall the aforementioned letter, perhaps Mr.
Barnhill had simply characterized the decision made by the
employees as a departmental position; and that no one at the DOL
was following direction by the national Republican Party or its
campaign. He reiterated that the clients were simply given
options.
CHAIR RAMRAS, in response to comments and a question, said he
and other legislators felt that the attorney general had advised
his clients to ignore the subpoenas, and characterized such
advice as doing systemic damage to the rights of the
legislature.
1:40:25 PM
ATTORNEY GENERAL COLBERG said that the DOL did not tell anyone
to ignore a subpoena; instead the DOL merely made its clients
aware of their constitutional rights and options.
CHAIR RAMRAS - referring to a letter dated September 16, 2008,
written by Attorney General Colberg to Senator French - asked
whether "all four of these people" decided at the same time to
ignore the subpoenas, and, if not, why weren't four separate
letters generated. Why did these four clients appear to act as
a group rather than as individuals? Chair Ramras then referred
to an e-mail written by Mr. Barnhill to Senator French dated
September 13, 2008, and noted that it said in part [original
punctuation provided]:
Each of these four individuals have confirmed that
they wish to proceed with their deposition without
service of a subpoena, and that they have elected to
have representation from Law at their deposition. Law
will provide that representation.
Their availability is as follows:
CHAIR RAMRAS pointed out that three days later, in the
aforementioned letter written to Senator French dated September
16, 2008, Attorney General Colberg said in part, "Your committee
has subpoenaed certain employees of the executive branch ...."
He then read AS 24.25.010(b):
(b) A subpoena requiring the attendance of a
witness before a standing or special committee of the
legislature may be issued by the chairman of a
committee when authorized to do so by a majority of
the membership of the committee and with the
concurrence of the president or the speaker, or with
the concurrence of the house or the senate.
CHAIR RAMRAS noted that a majority of the membership of the
Senate Judiciary Standing Committee voted to issue the
subpoenas, that that order was signed by the Senate President,
and that the subpoenas were issued. He offered his
understanding that it was after the aforementioned had occurred
that those who were issued the subpoenas were advised not to
comply.
ATTORNEY GENERAL COLBERG again reiterated that the DOL did not
specifically advise its clients not to comply, adding that only
one [position] letter was issued because all of the clients took
the same position. He offered his belief that the lawsuit filed
by the DOL outlines the five reasons why the legislature's
subpoenas were thought to be infirm and therefore challenged.
1:44:22 PM
REPRESENTATIVE GRUENBERG asked whether the subpoenas had been
issued as of September 16, 2008.
ATTORNEY GENERAL COLBERG said yes. In response to comments, he
clarified that the subpoenas were issued by that date but had
not yet been served.
REPRESENTATIVE GRUENBERG acknowledged that subpoenas are not
effective until they are served. He then pointed out that in
the aforementioned September 16, 2008, letter, Attorney General
Colberg said in part [original punctuation provided]:
As state employees, our clients have taken an oath to
uphold the Alaska Constitution and for that reason
they respect the legislature's desire to carry out an
investigation in support of its law-making powers.
However, our clients are also loyal employees subject
to the supervision of the Governor. Your subpoena
places them in the difficult position of choosing
either to support the Governor's decision to cooperate
only with the Personnel Board investigation or to
voluntarily comply with the subpoenas issued by the
committee.
REPRESENTATIVE GRUENBERG opined that when issued a subpoena, as
a matter of law, a state employee only has a duty to obey the
law and comply with the subpoena regardless of his/her loyalty
to the governor.
ATTORNEY GENERAL COLBERG concurred. In response to questions,
he offered his belief that state employees have a right to
assert executive privilege.
REPRESENTATIVE GRUENBERG asked Attorney General Colberg at what
point was he going to decide whether to assert executive
privilege.
ATTORNEY GENERAL COLBERG indicated that that decision would have
been made by whichever attorney accompanied the DOL's clients to
their hearings.
REPRESENTATIVE GRUENBERG expressed concern about the potential
conflict between the legislature's constitutional right to
investigate and conduct legislative activity, and the executive
branch's right to conduct its activity in the form of executive
privilege.
ATTORNEY GENERAL COLBERG, in response to a question, again
reiterated that the DOL never made the argument that the
legislature didn't have the authority to investigate, but was
instead making the argument that the subpoenas themselves
weren't properly issued. In response to other questions, he
opined that the Alaska Superior Court was reluctant to address
that issue, and offered his belief that there is room for more
clearly defined rules regarding legislative investigations,
particularly given that legislators, in conducting an
investigation, are not bound by the same rules that a court of
law would be.
REPRESENTATIVE GRUENBERG asked Attorney General Colberg to
address that point in writing, adding that he is questioning
whether perhaps there should be something set out in [statute]
on that issue.
ATTORNEY GENERAL COLBERG agreed to do so.
1:56:32 PM
REPRESENTATIVE GRUENBERG referred to the last paragraph of a
letter written by Attorney General Colberg to Senator Elton
dated September 25, 2008, that read [original punctuation
provided]: "Finally, as you noted in your letter, I did not
respond to your questions concerning specific advice and
conversations. As I hope you can appreciate, my obligations to
my clients prevent me from disclosing such information."
Representative Gruenberg offered his understanding that the
attorney-client privilege set out in the Alaska Rules of
Evidence has not been applied, per se, during the course of
legislative hearings. He asked what such evidence rules should
be with regard to legislative hearings, and whether they should
mirror the court rules.
ATTORNEY GENERAL COLBERG asserted that the attorney-client
privilege applies during legislative proceedings.
REPRESENTATIVE GRUENBERG questioned, then, whether such rules
should be set out in statute or elsewhere in writing.
ATTORNEY GENERAL COLBERG opined that such rules are already
clear enough.
REPRESENTATIVE GRUENBERG disagreed, noting, for example, that it
was not clear who Attorney General Colberg was representing or
whether he could, consistent with the cannons of ethics,
represent clients with conflicting points of view, as seemed to
be the case. Furthermore, he opined, the attorney-client
privilege can not be asserted in situations with such a conflict
and it's only asserted in a confidential setting.
ATTORNEY GENERAL COLBERG opined that regardless of who someone
is being represented by, he/she is still entitled to attorney-
client privilege.
REPRESENTATIVE GRUENBERG suggested that such rules should be set
up, defining in some detail, for example, exactly what
constitutes conflicts of interest within the attorney general's
office, how they are determined, who determines them, and what
the rights of appeal are. He added, "I think you were walking
right up to the edge of the envelope in this one, maybe over."
2:01:44 PM
REPRESENTATIVE COGHILL said he is interested in having a clear
process for situations in which the legislature is requiring
information from the executive branch, and opined that any
barrier to the legislature is unacceptable when it's requiring
information well within its authority to obtain. He questioned
whether the people who were issued subpoenas actually received
them.
ATTORNEY GENERAL COLBERG said they did.
REPRESENTATIVE COGHILL surmised that the legislature hadn't
followed the process set out in AS 24.25.030, which read:
Sec. 24.25.030. Disobeying subpoena or refusing to
testify.
If a witness neglects or refuses to obey a subpoena,
or neglects or refuses to testify or to produce upon
reasonable notice any material and proper books,
papers, or documents in the possession or under the
control of the witness, the senate or house of
representatives may by resolution entered on its
journal commit the witness for contempt. If contempt
is committed before a committee, the committee shall
report the contempt to the senate or house of
representatives, as the case may be, for such action
as may be considered necessary.
REPRESENTATIVE COGHILL offered his understanding that that
statute anticipates that the legislature will be in session
whenever it issues a subpoena, in that if someone refuses to
respond to a subpoena, the legislature can pass a resolution
[committing the person to contempt]. In the situation that
arose last year, the legislature was issuing subpoenas requiring
two committees to act in concert - Legislative Council and the
Senate Judiciary Standing Committee - and perhaps this created
some confusion with regard to the nature of the subpoenas. He
questioned whether the legislature should change statute to
clarify the process that should be undertaken during the
legislative interim, when passage of a resolution regarding
contempt is [unlikely] to occur in a timely manner.
ATTORNEY GENERAL COLBERG explained that the refusal to comply
was made in tandem with the assertion that the subpoenas were
not properly issued because the legislature was not in session
at the time. In response to a question, he offered his
understanding that after "the seven people" agreed to comply,
they sent statements instead of depositions, and that in general
Mr. Branchflower was conducting his depositions in private.
REPRESENTATIVE COGHILL said he is questioning whether such
[interviews] should be conducted in a public forum.
2:07:06 PM
CHAIR RAMRAS clarified that the recipients of the subpoenas were
instructed to come before the full Senate Judiciary Standing
Committee but were given the option of being deposed in private
- with or without counsel as they saw fit. Furthermore, in some
cases, in order to expedite matters, a written statement was
accepted in lieu of deposition. He offered his understanding
that because the legislature was not in session [when the
subpoena recipients refused to comply, the legislature was not
able to have law enforcement compel the recipients to appear.
CHAIR RAMRAS said he is still dissatisfied with Attorney General
Colberg's response to the question of who he was representing.
Chair Ramras questioned why the attorney general and his staff
didn't erect [firewalls], adding, "You got the governor, you got
the people of Alaska, you have the legislative branch, you have
these seven people or the four people or the eleven people, and
I thought it was just sloppy."
2:11:11 PM
ATTORNEY GENERAL COLBERG replied that the DOL never attempted to
represent the legislature in this matter, and had provided the
governor with independent counsel - "we did not represent her."
CHAIR RAMRAS argued that initially the DOL did represent the
governor.
ATTORNEY GENERAL COLBERG acknowledged that point, but indicated
that outside counsel was sought for the governor fairly early on
- "within a couple [of] weeks of when this got going." The DOL
then represented the State employees who were being sought as
witnesses in the investigation.
CHAIR RAMRAS asked Attorney General Colberg why he believes the
subpoenas weren't properly issued.
ATTORNEY GENERAL COLBERG said:
We believe that the legislature did not expressly
authorize the Legislative Council, Senator French, or
the Senate Judiciary Committee to conduct an
investigation during the interim between legislative
sessions. We believe that the Legislative Council did
not authorize the Senate Judiciary Committee to play a
role in the investigation that ... [Mr. Branchflower
was] conducting. We believe ... [that] if the
Legislative Council granted any implied authority to
the Senate Judiciary Committee to assume jurisdiction
over the investigation that Mr. Branchflower was
conducting, that grant constituted an invalid
delegation of legislative power, in violation of the
Uniform Rules of the legislature.
(Indisc.) believe that the subjects described in the
subpoenas were outside the jurisdiction of the Senate
Judiciary Committee, and that the Senate Judiciary
Committee did not authorize Senator French to issue
subpoenas to plaintiffs requiring that they bring any,
quote, "any relevant material and proper books,
papers, or documents," end of quote, when they
appeared before that committee. Those were our
specific reasons for filing the appeal.
CHAIR RAMRAS asked, "How'd that go for you."
2:15:07 PM
ATTORNEY GENERAL COLBERG acknowledged that at the superior court
level, the judge determined that "this" was ultimately not
justiciable. However, the DOL has since filed an appeal out of
concern that it protect the subpoena recipients from any
sanction that might be forthcoming. In response to a question,
he indicated that there were five reasons he considered the
subpoenas to be invalid. The first reason, he reiterated, was
that the legislature did not expressly authorize Legislative
Counsel, Senator French, or the Senate Judiciary Standing
Committee to conduct an investigation during the interim between
legislative sessions.
CHAIR RAMRAS pointed out, though, that [AS 24.25.010(b), text
provided previously,] stipulates that a subpoena may be issued
by any committee with concurrence of the body's presiding
officer.
ATTORNEY GENERAL COLBERG offered his interpretation that that
statute only applies when the legislature is in session, and
that the whole legislature must approve issuance of a subpoena.
CHAIR RAMRAS disagreed with that interpretation.
ATTORNEY GENERAL COLBERG reiterated the second reason as being
that Legislative Council did not authorize the Senate Judiciary
Standing Committee to play any role in the investigation that
Mr. Branchflower was conducting.
CHAIR RAMRAS pointed out that the legislature was in session
when Legislative Council took its vote.
REPRESENTATIVE COGHILL noted that AS 24.25.010(c) read:
(c) A subpoena requiring the attendance of a
witness before an interim committee established by
either house of the legislature, or by both, may be
issued by the chairman of a committee when authorized
to do so by a majority of the membership of the
committee and with the concurrence of the president or
the speaker.
2:19:44 PM
MARGARET PATON-WALSH, Assistant Attorney General, Labor and
State Affairs Section, Civil Division (Anchorage), Department of
Law (DOL), offered her belief that the language of the motion
Legislative Council members voted on didn't mention either the
House Judiciary Standing Committee or the Senate Judiciary
Standing Committee.
CHAIR RAMRAS disagreed.
ATTORNEY GENERAL COLBERG reiterated the third reason as being
that if Legislative Council granted any implied authority to the
Senate Judiciary Standing Committee to assume jurisdiction over
the investigation that Mr. Branchflower was conducting, that
grant constituted an invalid delegation of legislative power, in
violation of the Uniform Rules of the legislature.
MS. PATON-WALSH offered her belief that under the Uniform Rules
of the Alaska State Legislature, the jurisdiction of the House
Judiciary Standing Committee and the Senate Judiciary Standing
Committee is limited to matters pertaining to the Department of
Law, the Alaska Court System, and bills currently before the
committee. She noted, though, that under the Uniform Rules, the
House State Affairs Standing Committee and the Senate State
Affairs Standing Committee do have jurisdiction over the Office
of the Governor, the Department of Public Safety, and the
Department of Administration.
MS. PATON-WALSH added: "These subpoenas and this investigation
was constructed in violation of those rules, and we felt that
that made the subpoenas questionable, and that's why we
challenged them in court."
ATTORNEY GENERAL COLBERG reiterated the fourth reason as being
that the subjects described in the subpoenas were outside the
jurisdiction of the Senate Judiciary Standing Committee.
ATTORNEY GENERAL COLBERG reiterated the fifth reason as being
that the Senate Judiciary Standing Committee did not authorize
Senator French to issue subpoenas to plaintiffs requiring that
they bring relevant material, proper books, papers, or documents
when they appeared before the committee.
2:24:51 PM
REPRESENTATIVE HOLMES, in response to questions, read - from the
July 28, 2008, Legislative Council meeting transcript - the
original motion made during the Legislative Council meeting
[original punctuation provided]:
Mr. Chair, I move the Legislative Council delegate
their authority to the council chairman to solicit,
award and expend Legislative Council funds in an
amount not to exceed $100,000 for the purpose of
contracting for legal services to investigate the
circumstances and events surrounding the termination
of former Public Safety Commissioner Monegan and
potential abuses of power and/or improper actions by
members of the executive branch and prepare a report.
Senator Hollis French will serve as the project
director for the contract. It is the intent of the
Legislative Council that the investigation be
professional, unbiased, independent, objective and
conducted at arms length from the political process.
The report shall be submitted to the Legislative
Council, Senate Judiciary committee, and the House
Judiciary committee in a timely manner.
CHAIR RAMRAS indicated that [in the aforementioned transcript],
Tam Cook, Director, Legislative Legal and Research Services,
[was quoted as saying] in part [original punctuation provided]:
The first part goes to the issue of whether Leg.
Council has the power to, I believe the motion will be
to prepare a report. Leg. Council has the power to
conduct investigations, including to issue subpoenas
itself, and to compel the testimony of witnesses, and
administer an oath, ....
REPRESENTATIVE COGHILL indicated that [in the aforementioned
transcript], Senator Elton and Tam Cook [were quoted as saying]
in part [original punctuation provided]:
Senator Elton: If in fact we strike the language, we
put a period after council and we say the final report
shall be submitted to the Legislative Council, does
that in any way inhibit the ability of the Judiciary
Chairs from issuing subpoenas to compel testimony from
those who may prefer to give testimony under a
subpoena?
Tam Cook: No. If I may, through the chair, if you
are talking about subpoenas that might be issued in
the course of preparing the report, versus any
following up on any recommendation that results from
the report, I don't see anything in the motion that
prevents the investigator from requesting the
assistance of a standing committee in issuing
subpoenas if the investigator chooses to do so, and if
the project director is in agreement.
REPRESENTATIVE COGHILL said it was understood at the time that
the judiciary committees could be getting involved, given that
the project director was the chair of the Senate Judiciary
Standing Committee and that at issue were legal questions.
2:28:34 PM
REPRESENTATIVE GATTO questioned the choice of Mr. Branchflower
as the investigator.
ATTORNEY GENERAL COLBERG said the DOL wasn't challenging the
selection of Mr. Branchflower.
REPRESENTATIVE COGHILL indicated that his only interest is in
improving the statutes pertaining to legislative investigations
and subpoenas so as to address actions taken during the interim.
REPRESENTATIVE HOLMES relayed that as required by law, the
Senate President was notified of the failure of the subpoena
recipients to comply. She offered her understanding that the
Alaska Supreme Court has affirmed the ruling by the Alaska
Superior Court that the legislative subpoenas were valid.
ATTORNEY GENERAL COLBERG clarified that the Alaska Supreme Court
has held [that question] in abeyance until June, and has only
dismissed the suit brought by the legislators who challenged the
whole process. After the Alaska Superior Court made its
decision, all seven subpoena recipients complied; again, the
lawsuit now maintained by the DOL against the legislature was
filed out of concern that the DOL protect those people from any
sanctions the legislature might choose to impose, he added.
REPRESENTATIVE HOLMES asked what would ensure that the DOL
complies with any future subpoenas.
ATTORNEY GENERAL COLBERG, after remarking that the
aforementioned five reasons the DOL challenged the subpoenas
outline what should be changed, suggested spelling out the rules
and requirements for legislative investigations and subpoenas.
He offered that the Personnel Board already has its rules in
place, and said that the legislative process regarding
investigations could be made clearer.
2:37:20 PM
CHAIR RAMRAS asked how much time and money has been spent by the
DOL fighting the subpoenas.
ATTORNEY GENERAL COLBERG agreed to research that issue and
provide the resulting information to the committee.
REPRESENTATIVE GRUENBERG said he would write Attorney General
Colberg a letter asking him for written suggestions for possible
rules and procedures regarding legislative investigations and
subpoenas, and for a list of possible challenges the DOL might
still raise should those suggestions be implemented.
Representative Gruenberg acknowledged that Attorney General
Colberg might wish to delay his written response until after the
Alaska Supreme Court addresses the DOL's current lawsuit against
the legislature.
REPRESENTATIVE COGHILL observed that issues regarding delegated
authority, two committees working in concert, enforcement of
subpoenas, committee jurisdiction, and possible criminal conduct
still need to be addressed, perhaps via rule or statutory
changes.
REPRESENTATIVE GRUENBERG asked Attorney General Colberg to
consider the Alaska State Constitution, the Uniform Rules, and
Mason's Manual of Legislative Procedure when responding to his
request for suggested changes. What is needed is to have a
procedure by which the legislature can conduct investigations,
compel the production of evidence, and enforce the
aforementioned regardless of whether the legislature is in
session or has adjourned sine die.
ATTORNEY GENERAL COLBERG, in response to questions, explained
that there were only two parties needing representation - the
seven people who received subpoenas, and the governor - and
suggested that perhaps there should be a mechanism in place such
that should a similar situation occur, the governor would obtain
independent counsel right away. He indicated that in the
situation that occurred last year, the DOL never attempted to
represent the people of the state.
REPRESENTATIVE HOLMES opined that the primary goal of the
Department of Law is to represent the best interests of the
state of Alaska, and that in the aforementioned situation, that
did not occur. In response to a question, she agreed that the
seven individuals were entitled to legal representation.
2:50:03 PM
REPRESENTATIVE DAHLSTROM, referring to the DOL's current lawsuit
against the legislature, asked what a ruling in favor of the DOL
would mean.
ATTORNEY GENERAL COLBERG surmised that such a ruling wouldn't
undermine the legislature's ability to conduct an investigation,
but would clarify how such an investigation should be conducted.
Meanwhile, the legislature could establish clear rules for any
future such investigation. In response to a question, he
suggested that the legislature could bring the pending lawsuit
to an end.
CHAIR RAMRAS asked Attorney General Colberg whether he would
treat a similar situation in the future in the same fashion.
ATTORNEY GENERAL COLBERG indicated that he would.
CHAIR RAMRAS asked Attorney General Colberg if he would still
have advised his clients to ignore the subpoenas.
ATTORNEY GENERAL COLBERG yet again reiterated that he never
advised the subpoenaed recipients to ignore the subpoenas,
adding that were something similar to happen again, he would
still advise his clients of their options and leave the choice
up to them, as was the case in this instance.
REPRESENTATIVE GATTO recalled that Legislative Council's motion
didn't specify a conclusion date for the investigation.
CHAIR RAMRAS relayed that the conclusion date originated with
him out of concern that the investigation not continue so long
that it impact the national election.
2:55:22 PM
REPRESENTATIVE GRUENBERG asked Attorney General Colberg to also
consider the Alaska Rules of Professional Conduct specific to
conflicts of interest pertaining to government service, and to
consider whether such rules should be set out either in statute
or in regulation. Representative Gruenberg opined that such
rules are important for potential clients, members of the
executive branch, legislators, the general public, and the
press, and so shouldn't be "hidden" away. Dealing with
conflicts of interest within the DOL isn't an infrequent
occurrence, he noted, and asked whether conflicts of interest
are addressed via regulation.
ATTORNEY GENERAL COLBERG indicated that some such rules
regarding regulatory and public affairs are located in what he
called the "civil manual policy."
REPRESENTATIVE GRUENBERG asked that that information be provided
to him as soon as possible.
CHAIR RAMRAS predicted that the committee would revisit the
issue of legislative subpoenas again, and that legislation to
remedy some of the perceived gaps is likely to come from the
House Judiciary Standing Committee - remedy that will ensure
that the executive branch comply with legislative subpoenas.
3:01:07 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:01 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Attorney General Colberg docs.pdf |
HJUD 1/28/2009 1:00:00 PM |
|
| Colberg 2.pdf |
HJUD 1/28/2009 1:00:00 PM |
|
| Colberg3.pdf |
HJUD 1/28/2009 1:00:00 PM |
|
| Colberg 4.pdf |
HJUD 1/28/2009 1:00:00 PM |