Legislature(2019 - 2020)GRUENBERG 120
04/01/2019 01:00 PM House JUDICIARY
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| SB89 | |
| Adjourn |
* first hearing in first committee of referral
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+ teleconferenced
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| + | SB 89 | TELECONFERENCED | |
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ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 1, 2019
1:01 p.m.
MEMBERS PRESENT
Representative Matt Claman, Chair
Representative Gabrielle LeDoux, Vice Chair
Representative Chuck Kopp
Representative Louise Stutes
Representative Adam Wool
Representative Laddie Shaw
Representative David Eastman
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 89(JUD)
"An Act relating to the Legislative Ethics Act; and providing
for an effective date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 89
SHORT TITLE: LEGISLATURE: ETHICS, CONFLICTS
SPONSOR(s): RULES
03/13/19 (S) READ THE FIRST TIME - REFERRALS
03/13/19 (S) JUD
03/18/19 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/18/19 (S) Heard & Held
03/18/19 (S) MINUTE(JUD)
03/20/19 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/20/19 (S) Moved CSSB 89(JUD) Out of Committee
03/20/19 (S) MINUTE(JUD)
03/22/19 (S) JUD RPT CS 1DP 3NR 1AM SAME TITLE
03/22/19 (S) DP: HUGHES
03/22/19 (S) NR: REINBOLD, MICCICHE, SHOWER
03/22/19 (S) AM: KIEHL
03/27/19 (S) TRANSMITTED TO (H)
03/27/19 (S) VERSION: CSSB 89(JUD)
03/29/19 (H) READ THE FIRST TIME - REFERRALS
03/29/19 (H) JUD
04/01/19 (H) JUD AT 1:00 PM GRUENBERG 120
WITNESS REGISTER
SENATOR JOHN COGHILL
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Introduced SB 89 on behalf of the Senate
Rules Standing Committee, the prime sponsor.
CHAD HUTCHISON, Senate Majority Counsel
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Gave a presentation and answered questions
during the hearing on SB 89.
DAN WAYNE, Legislative Counsel
Legislative Legal Services
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Answered questions during the hearing on SB
89.
JERRY ANDERSON, Administrator
Select Committee on Legislative Ethics
Alaska State Legislature
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the hearing on SB
89.
ACTION NARRATIVE
1:01:55 PM
CHAIR MATT CLAMAN called the House Judiciary Standing Committee
meeting to order at 1:01 p.m. Representatives Wool, LeDoux,
Eastman, Stutes, Kopp, Shaw, and Claman were present at the call
to order.
SB 89-LEGISLATURE: ETHICS, CONFLICTS
1:02:46 PM
CHAIR CLAMAN announced that the only order of business would be
SENATE BILL NO. 89 "An Act relating to the Legislative Ethics
Act; and providing for an effective date." [Before the
committee was CSSB 89(JUD), version 31-LS0209\K.]
1:03:24 PM
SENATOR JOHN COGHILL, Alaska State Legislature, said SB 89
addresses House Bill 44 [passed during the Thirtieth Alaska
State Legislature], which enacted various legislative ethics
requirements and restrictions. He summarized changes made by
House Bill 44. He said SB 89 would not affect most provisions
of House Bill 44 but instead would make changes to its conflict
reporting requirements. He explained that the legislature had
not realized how broadly the ethics rules in House Bill 44 were
written. He said SB 89 would repair those broad definitions.
SENATOR COGHILL explained that he was tasked with drafting SB 89
because he has sat on the Select Committee on Legislative Ethics
for a number of years and is familiar with how it operates. He
stressed the importance of keeping SB 89 clear, clean, and
unambiguous. He noted that House Bill 44 included new language,
new definitions, and new requirements that created a "cloud of
question." He said the resultant confusion has caused ethical
legislators, acting out of an abundance of caution, to avoid
legislative duties that they otherwise would do ethically. He
added that the "cloud of doubt" has protected those who may be
"less than ethical" because there is an understanding that no
one would be charged with ethical misbehavior amid this
confusion. He said SB 89 would clarify these issues. He
pointed to Article 2 of the Standards of Conduct for legislators
found in AS 24.60.030. He said SB 89 primarily addresses
subsections (e) and (g).
SENATOR COGHILL discussed how the Select Committee on
Legislative Ethics approached the question of legislators
holding private meetings on conflicted topics and whether that
can be done legitimately. He said the committee determined the
answer to be "no" because, under the broad definition of what a
conflict would be, any impact that was greater than that of the
general public would create a conflict. He explained that this
means legislators are unable to have private meetings about
those topics, as those meetings would have to be public for the
purpose of declaring the conflict.
SENATOR COGHILL said SB 89 builds upon language "that we knew
worked." He said one new thing proposed by SB 89 is the
declaration of conflicts in committee as well as on the floor.
SENATOR COGHILL said he approached SB 89 with an eye toward
practicality in determining how legislators should declare
conflicts when it is clear to them and to the public that a
conflict may exist. He noted that the next speaker, Chad
Hutchison, will argue that SB 89 is undergirded by
constitutional arguments. He urged the importance of informing
the public of legislator conflicts and said SB 89 strives to
clarify that process.
1:09:30 PM
REPRESENTATIVE EASTMAN asked whether the Select Committee on
Legislative Ethics has any thoughts or recommendations.
SENATOR COGHILL said the committee's approach is "you deliver
the law, we'll interpret it." He relayed the committee's
perspective that the legislature faces "some real conundrums."
He referenced Advisory Opinion (AO) 18-05 and AO 19-01 in which
the Select Committee on Legislative Ethics interpreted the law
to address questions pertaining to conflicts. He said the
committee determined that if a legislator has family members or
some interest in an enterprise, it would qualify as a conflict.
He opined that this flies in the face of a citizen legislature
and a representative democracy.
1:10:34 PM
REPRESENTATIVE WOOL asked how much of the tension around these
laws is attributable to the committee's interpretation of House
Bill 44. He recalled a conversation he had with one of the
sponsors in which the sponsor claimed the law was being
misinterpreted and that disallowing legislators to discuss
certain topics was not the intent.
SENATOR COGHILL confirmed that this was not the intention, but
the problem is in how the words were interpreted. He opined
that the legislature must strike a cleaner line than what has
been delivered to us.
1:11:27 PM
REPRESENTATIVE LEDOUX said the problem seems to be with the
committee's interpretation of the law. She asked, instead of
going back and revising, why the legislature cannot just pass
clarifying language reasserting the intention to not disallow
private meetings with constituents, regardless of what the
Select Committee on Legislative Ethics has said.
SENATOR COGHILL said that is what SB 89 seeks to do. He argued
that language from House Bill 44 must be changed in order to
accomplish that goal. He said this includes the inclusion of
family members in the conflicts provision. He called that
language "too broad" and said SB 89 would revert back to more
easily-understood language.
REPRESENTATIVE LEDOUX said she still does not understand why her
proposed statement would be insufficient. She suggested leaving
the ethics laws extremely broad. She restated that the problem
seems to be not that the law includes family members, but that
legislators "cannot have any meetings about anything."
SENATOR COGHILL opined that the definitions and the breadth have
become a problem.
1:13:45 PM
CHAD HUTCHISON, Senate Majority Counsel, Alaska State
Legislature, recognized and thanked Dan Wayne from Legislative
Legal Services for his work raising constitutional issues
related to House Bill 44. He also thanked Jerry Anderson,
Administrator of the Select Committee for Legislative Ethics,
for his fairness in implementing the law and his patience as the
legislature fields him with questions. He referred to several
AOs issued by the Select Committee for Legislative Ethics and
pointed out that they were unanimous opinions. He argued that
the problems that resulted from House Bill 44 are not due to its
interpretation as there have been no dissenting opinions. He
said SB 89 attempts to resolve the issues with the written word
of the law.
1:15:09 PM
MR. HUTCHISON began his PowerPoint presentation [hard copy
included in the committee packet] and addressed slide 2. He
clarified that SB 89 would not repeal House Bill 44. He
addressed slide 3, which featured a list of House Bill 44
provisions and other standards of conduct which would remain
intact.
MR. HUTCHISON addressed slide 4. He said SB 89 would eliminate
unconstitutional language added to statute in 2018. He
addressed slide 5, which featured a list of constitutional
issues that have emerged because of the conflict provisions of
House Bill 44, which he said have affected fundamental rights.
He explained that fundamental rights may be restricted by the
government, but only when it is necessary to compelling state
interests and those restrictions are narrowly tailored to be the
least restrictive alternative. He argued that the conflict
provisions of House Bill 44 clash with Article II of the
Constitution of the State of Alaska because they diminish core
legislative functions and representation. He offered the
example of a current senator who is also a miner and how this
senator has been unable to discuss, meet privately about, or
carry legislation relating to mining.
1:18:43 PM
REPRESENTATIVE LEDOUX asked why there is so much focus on
restoring previous language rather than adding clarifying
language that supersedes the findings of the Select Committee on
Legislative Ethics.
MR. HUTCHISON said that is essentially what SB 89 attempts to
do. He argued that the changes are necessary because some
provisions in House Bill 44 restrict fundamental rights and are
not the least restrictive alternative. He pointed to additional
rights laid out in Article I, Sections 1, 5, and 6 of the state
constitution. He argued that these rights are also restricted
by language in House Bill 44. He stressed the importance of the
"least restrictive alternative" requirement when restricting
fundamental rights.
1:20:29 PM
REPRESENTATIVE EASTMAN asked why the approach to addressing
House Bill 44 was not to clarify the definition of "official
action" and ensure it does not include things like private
meetings.
MR. HUTCHISON said "official action" has not technically been
defined. He said the Select Committee on Legislative Ethics has
interpreted it as "legislative action," which has a broad
definition. He said he would address the topic during his
presentation.
1:21:36 PM
MR. HUTCHISON explained that Article II of the Constitution of
the State of Alaska has been violated from two perspectives:
that of the legislators who must be able to fulfill their duties
and that of constituents who must have representation in
government. He said the violations of Article I of the state
constitution are a result of the restrictions not fulfilling the
requirement that they be "narrowly tailored to be the least
restrictive alternative" He said the current ethics law
violates equal rights and equal protections provisions
encompassed in Article I, Section 1 because different groups of
constituents are disallowed equal access to their
representatives. He said the law violates freedom of speech
protections encompassed in Article I, Section 5 because of
restrictions placed on legislators and constituents as relates
to conversations about the legislative process. He said the law
violates the right to free assembly and petition encompassed in
Article I, Section 6 because legislators are not permitted to
discuss the legislative process with constituents.
MR. HUTCHISON noted that House Bill 44 defines a conflict as a
situation in which "substantial benefit or harm" could result.
He referenced a senator who had to withdraw a bill because of
its potential negative impacts to her husband, who works in the
medical field. Theoretically, he said, a senator could not push
legislation that would benefit the entire state of Alaska if it
would also harm him/her financially.
1:25:01 PM
MR. HUTCHISON addressed slide 6, which listed federal
constitutional rights that he said have been violated by the
ethics law. He spoke to violations of the First Amendment of
the Constitution of the United States of America. He remarked
that the Fourteenth Amendment, which ensures citizens liberty,
is also violated when restrictions are placed on constituents'
ability to petition their government.
1:25:59 PM
REPRESENTATIVE WOOL asked for an elaboration of the Fourteenth
Amendment protection relating to property.
MR. HUTCHISON said the government cannot deprive people of life,
liberty, or property without due process of law. He said this
requires some sort of notice, process, or adjudication.
REPRESENTATIVE WOOL inquired about the constitutionality of a
withholding the legislator per diem should certain bills not
pass. He clarified that the legislator per diem is compensation
for room and board in a town other than one's own. He asked if
withholding expected compensation for living expenses would be
covered.
MR. HUTCHISON said, "I think your instincts are correct on the
per diem," though stressed that the per diem was not a focus of
his presentation. He recommended the committee members read Dan
Wayne's memorandums on various constitutional issues related to
House Bill 44.
1:28:01 PM
MR. HUTCHISON addressed slide 7. He said section 1 of SB 89
would amend AS 24.60.030(e) and address issues related to the
"scope of conflict. He highlighted various issues related to
the practical result of House Bill 44 including "a vast net of
conflict" because conflicts extend to the immediate family. He
stressed that these are not the least restrictive alternatives.
MR. HUTCHISON addressed slide 8, which detailed proposed changes
to AS 24.60.030(e). He explained that SB 89 would return the
language used before 2018. For perspective on the
ramifications, he recommended the committee consult Uniform Rule
34(b); Mason's Manual Sections 241, 522, and 560; and Advisory
Opinions 04-02, 08-01, 11-05, and 13-01. He said those sources
provide insight on how ethics issues related to conflicts were
handled prior to House Bill 44. He noted that SB 89 would
eliminate the language "immediate family" within the scope of
conflict, as well as passages that restrict legislator advocacy.
He said the bill would also eliminate the $10,000 income
threshold and the language "preceding 12-month period."
1:32:25 PM
MR. HUTCHISON addressed slide 9. He said section 2 of SB 89
would amend AS 24.60.030(g). He spoke to the connectedness of
subsections (e) and (g) of the statute. He said the changes
proposed by SB 89 further address the expansion of conflicts
enacted by House Bill 44. He noted that House Bill 44 made
omnibus bills impractical because their multiple provisions
increase the likelihood of legislator conflicts. He referenced
a situation involving Senator Shelley Hughes, who chairs the
Senate Judiciary Standing Committee. He said Senator Hughes
could not hold a hearing on an omnibus criminal justice reform
bill because the bill dealt with the Alaska Therapeutic Courts
and her husband works in the medical field. He spoke to other
impractical approaches the Senate Majority has had to take in
order to abide by the provisions of House Bill 44.
MR. HUTCHISON addressed slide 10, which listed the changes to AS
24.60.030(g) proposed by SB 89. He said conflicts would still
have to be declared before voting on a question in committee,
but all other restrictions and prohibitions would be removed.
He said SB 89 would revert the language "financial interest" to
the less-restrictive "equity or ownership interest." He added
that the language "general public" would be returned to
"substantial class of persons to which the legislator belongs as
a member of a profession, occupation, industry, or region." He
explained that "general public" is too broad and therefore does
not abide by the "least restrictive" requirement.
1:36:56 PM
MR. HUTCHISON addressed slides 11 and 12, which covered section
3 of SB 89. He explained that section 3 would repeal AS
24.60.030(j)(2), which defines "substantially benefit or harm,"
and AS 24.60.990(a)(6), which defines "financial interest." He
argued that these paragraphs should be removed for purposes of
clarity, as the current definitions are too broad and therefore
too restrictive. He noted that the current language creates
myriad problems for legislators who might or might not be
conflicted. He reiterated that these restrictions of
fundamental rights do not abide by the necessary requirements.
1:38:21 PM
MR. HUTCHISON addressed slide 13, which explained that section 4
of SB 89 would make the act effective immediately upon signing.
MR. HUTCHISON addressed slide 14, titled "This clarification
attempts to find the right balance." He referenced AO 19-01,
authored by Dan Wayne, and stressed the indubitable importance
of high moral and ethical standards among public servants in the
legislative branch. He said such standards are vital to
government trust, respect, and the confidence of constituents.
MR. HUTCHISON paraphrased Mason's Manual section 522 and said,
"The right of the members to represent their constituencies is
of such major importance that members should be barred from
their constitutionally required representative duties only in
clear cases of personal enrichment." He pointed to previously-
utilized tools for addressing these situations such as voter
recall, censure, and ethical sanctions. He said the final
decision is in the election process, where voters can engage in
recourse against a legislator who is perceived to be unethical.
He said there were plenty of options for addressing unethical
behavior prior to House Bill 44.
1:40:23 PM
REPRESENTATIVE STUTES asked for verification that SB 89 would
not change the practice of a legislator declaring a conflict on
the floor and then being required to vote upon a colleague's
objection.
MR. HUTCHISON said things would go back to how they were prior
to House Bill 44, so if that was the process back then, the
answer is yes.
REPRESENTATIVE STUTES noted that this custom seems to be the
topic related to legislative ethics that elicits the most
complaints from her constituents. She called the custom
"troublesome."
1:41:26 PM
REPRESENTATIVE EASTMAN recalled that there was a proposed change
to the Uniform Rules of the Alaska State Legislature to address
the issue raised by Representative Stutes, and that it
accompanied House Bill 44 but did not pass. He asked if that is
correct.
MR. HUTCHISON said he remembered it being a House Concurrent
Resolution. He asked for clarification.
CHAIR CLAMAN noted that House Bill 44 came attached to a
concurrent resolution [House Concurrent Resolution 1 (introduced
in the Thirtieth Alaska State Legislature)] that would have
changed the uniform rule relating to the issue referenced by
Representative Stutes. He said changes to the uniform rules
require a two-thirds vote; House Concurrent Resolution 1 failed
to reach that threshold in the House.
MR. HUTCHISON clarified that if House Concurrent Resolution 1
did not pass, then SB 89 would not address the issue mentioned
by Representative Stutes.
1:42:56 PM
REPRESENTATIVE STUTES asked for verification that to change the
current practice of declaring conflicts on the floor would
require a change to the uniform rules.
MR. HUTCHISON deferred to Dan Wayne.
1:43:44 PM
DAN WAYNE, Legislative Counsel, Legislative Legal Services,
Alaska State Legislature, said Uniform Rule 34(b) was unchanged
during the passage of House Bill 44. He quoted language from AS
24.60.030(g) indicating that the voting requirement spelled out
in Uniform Rule 34(b) takes precedent over statute.
REPRESENTATIVE STUTES asked again if the Uniform Rules must be
changed to change the practice.
MR. WAYNE answered correct. He noted that [House Concurrent
Resolution 1] did not pass the legislature.
1:44:53 PM
CHAIR CLAMAN said the custom is to not identify the legislator
who objects when another legislator requests to be excused from
a vote. He asked if there is anything in the Uniform Rules or
Mason's Manual that would prevent the House from adopting a new
practice of identifying the objector.
MR. WAYNE said there is nothing that he knows of that would
prevent that.
CHAIR CLAMAN asked if it has long been customary that the
objector is not identified.
MR. WAYNE said it is his understanding that it has evolved as a
custom. He said he does not know if that has always been the
same custom, "but it is the custom now and has been for some
time."
1:45:47 PM
REPRESENTATIVE WOOL asked a question about the $10,000
salary/benefit restriction included in House Bill 44.
MR. HUTCHISON said $10,000 is the standard used to determine if
a legislator has a conflict. As an example, he said a person
who earned $100,000 over the past 12 months working in the
insurance industry would have to be careful when considering
insurance-related bills.
REPRESENTATIVE WOOL noted that SB 89 returns language requiring
"ownership or equity" for there to be a conflict. He said this
means a person working for a labor union or oil company would
not be deemed to be conflicted because he/she does not own or
hold shares in the union or oil company.
MR. HUTCHISON said it is true that the class of conflict will be
reset to "equity or ownership interest," which is what existed
in statute prior to House Bill 44. He noted that it is
important to remember that the Select Committee on Legislative
Ethics assesses each potential ethical conflict on a case-to-
case basis.
1:49:16 PM
CHAIR CLAMAN presented a hypothetical scenario: "Let's say I own
ExxonMobil stock valued at more than $10,000 ... and they pay
dividends of $1,000. And now there's an oil and gas tax bill
that comes in front of the legislature." He asked, under the
current law, whether that is something to disclose.
MR. HUTCHISON deferred to Jerry Anderson.
1:50:05 PM
JERRY ANDERSON, Administrator, Select Committee on Legislative
Ethics, asked for clarification that the income in the scenario
is $1,000 in the form of a dividend.
CHAIR CLAMAN repeated that the dividend payment last year was
$1,000 and the stock is worth over $10,000. He noted that, like
all stock owners, he would hope that the stock price would go up
and not down. He repeated that the scenario includes an oil and
tax bill before the legislature.
MR. ANDERSON said it would be his informal advice that, under
that scenario, a conflict would not exist because income was
only $1,000, less than the $10,000 restriction.
CHAIR CLAMAN asked whether, under the proposed changes of SB 89,
the same situation with the ExxonMobil stock would be a
declarable conflict.
MR. ANDERSON said the answer to that question can be found in AO
13-01 which addressed a similar scenario. He said the answer
was that it was not a conflict, based on those specific facts
"where it was a small number of shares compared to the
outstanding number of shares."
1:52:14 PM
CHAIR CLAMAN asked Mr. Anderson to respond to Representative
Wool's previous question.
MR. ANDERSON said questions related to employment were also
addressed by the Select Committee on Legislative Ethics in AO
13-01. He said that opinion addressed both self-employment and
employment with an oil industry company. He noted that, even
though the language of the law at that time was similar to the
language proposed by SB 89, the committee was "looking at things
like employment, stock ownership, self-employment."
REPRESENTATIVE WOOL asked for verification that there is not a
simple yes or no answer to questions of conflicts related to
employment, and that the answer is located somewhere in Advisory
Opinion 13-01.
MR. ANDERSON answered, "I believe that is correct." He said the
committee would consider the specific set of facts.
CHAIR CLAMAN noted that, while he appreciates Mr. Anderson's
input, the committee would like to hear his opinion on these
matters rather than be told to "go home and read the opinion."
1:54:39 PM
REPRESENTATIVE EASTMAN recalled discussing House Bill 44 with
the prime sponsor during the previous session. He said the
concerns about floor votes raised by Representative Stutes were
part of that discussion. He said it was ironic that it was the
one thing he and the prime sponsor agreed upon, yet it is not
present in SB 89. He asked Mr. Hutchison why that is and
whether there is some type of value in maintaining objector
anonymity.
MR. HUTCHISON answered that the specific focus of SB 89 is AS
24.60.030(e) and AS 24.60.030(g), and that this focus was in the
interest of time and workload.
1:56:02 PM
CHAIR CLAMAN said SB 89 makes reference to a legislator who is
negotiating for employment. He noted that this reference is
located in line 9 of page 2. He said the bill makes no
reference to a person with whom the legislator is employed. He
asked: "Why would there be no duty to declare a conflict if a
person is employed, but nevertheless they would declare a
conflict if they were negotiating for employment?"
MR. HUTCHISON answered that the presumption is to return the
language exactly to the way it was prior to House Bill 44, and
that is how the law read then.
CHAIR CLAMAN asked if he could think of any reason why someone
would need to disclose that he/she is negotiating for employment
while another legislator employed by someone who could
experience "substantial benefit or harm" would not need to
disclose his/her employment.
MR. HUTCHISON said the drafters are open to discussing potential
adjustments to the language of the bill.
1:57:25 PM
REPRESENTATIVE WOOL asked whether, in the interest of
simplicity, a full repeal of House Bill 44 was ever discussed.
MR. HUTCHISON answered yes. He noted that Senator David Wilson
had wanted a complete repeal. He said a full repeal would raise
additional issues. He noted that other parts of House Bill 44
have quite a bit of support. He said the focus has been on the
conflict provisions because of how they have hampered
legislative duties.
CHAIR CLAMAN asked for confirmation that Senator Wilson offered
a floor amendment to fully repeal House Bill 44 and that the
amendment failed in the Senate.
MR. HUTCHISON answered yes. He restated that there are others
in the Senate Majority Caucus who support other provisions of
House Bill 44 and do not support a full repeal.
1:59:16 PM
REPRESENTATIVE EASTMAN asked when the constitutional problems
with House Bill 44 first became known.
MR. HUTCHISON said the issues started to become known within the
past few months. He repeated examples of senators who were
unable to fulfill legislative duties due to perceived conflicts.
REPRESENTATIVE EASTMAN said he recalled a lengthy memorandum
from "our Legislative Counsel" to then-Senator Kevin Meyer
relating to the constitutionality of House Bill 44.
MR. HUTCHISON recognized the memorandum authored by Mr. Wayne
and added that Mr. Wayne had identified many issues relating to
House Bill 44.
2:01:14 PM
CHAIR CLAMAN said he has always been troubled by the notion of
legislators not being allowed to vote because of a conflict,
which he feels conflicts with the right to petition the
government in Article I, Section 6 of the Constitution of the
State of Alaska. He noted that this issue was addressed to some
extent in the United States Supreme Court case Bond v. Floyd.
He postulated that to prevent a legislator from voting because
of a conflict would be a violation of that legislator's
constituents' right to petition the government.
MR. HUTCHISON agreed that there are constitutional issues with
depriving citizens the ability to petition their government.
2:02:20 PM
REPRESENTATIVE WOOL noted that $10,000 in income from ExxonMobil
dividends would represent a conflict. He asked whether the same
could apply with the permanent fund dividend (PFD) if a family's
household income could be augmented by more than $10,000 via a
robust PFD.
MR. ANDERSON said the Select Committee on Legislative Ethics has
determined that the PFD would not present a conflict based on
the number of children even if it went over $10,000 as a family
unit. He said this is because each family member would be
receiving the same amount - not a greater amount - as members of
the general public.
CHAIR CLAMAN asked for verification that there is no conflict
even if one legislator with 10 children looks to take in
substantially more income from a $3,000 PFD than a legislator
with only one child.
MR. ANDERSON said it is his understanding that that would not be
a conflict.
MR. HUTCHISON noted that a rising tide floats all ships. He
clarified that the Select Committee on Legislative Ethics
decided that the PFD does not represent a conflict because every
individual receives the same amount of money.
REPRESENTATIVE WOOL said he appreciates that interpretation but
noted that the parents can pocket the family's PFD checks if
their kids are minors. He shared frustrations with these
interpretations.
2:06:28 PM
REPRESENTATIVE EASTMAN asked a clarifying question about the
previous example of ExxonMobil shares and dividends. He posited
that if he were to vote a certain way that causes next year's
dividend income to soar above $10,000, he would not be
conflicted until next year. He asked if that was correct.
MR. HUTCHISON said that is correct. He referenced Advisory
Opinion 19-02, which considered the year-to-year variance of
income for professions such as commercial fishing.
2:07:32 PM
CHAIR CLAMAN noted that SB 89 would remove the provisions about
family member conflicts. He questioned the removal of spouses.
MR. HUTCHISON said the language that existed before House Bill
44 was less restrictive, so that is the rationale for returning
to it.
CHAIR CLAMAN asked why, if the intent of the legislation is for
legislators to declare their conflicts, the conflicts of a
legislator's spouse would be exempted. He noted that marriage
creates legal bonds that do not exist elsewhere.
MR. HUTCHISON said a similar conversation occurred in the Senate
Judiciary Standing Committee. He noted that Alaska Public
Offices Commission (APOC) reporting includes money coming in to
the family unit. He said, "we're open to a conversation"
regarding the spousal question but stressed that every change
will be viewed through the "least restrictive" lens.
2:09:57 PM
REPRESENTATIVE EASTMAN asked whether SB 89 would similarly
exclude children, including situations where the child's income
is being held in trust by the parent.
MR. HUTCHISON said that was considered. He added that a
household could include not just dependent children of a
legislator, but also a dependent parent. He said the
difficulties involved with assessing that financial information
were determined to be too burdensome and too restrictive.
2:11:08 PM
CHAIR CLAMAN opened public testimony on SB 89. After
ascertaining that no one wished to testify, he closed public
testimony on SB 89.
2:11:31 PM
REPRESENTATIVE LEDOUX said, "I have very little interest in
fiddling around with this legislation as long as we are leaving
... the huge elephant in the room. And that is: No matter how
gross your conflict is, how clear your conflict is, you can
simply vote. You declare it, and then you vote." She noted
that the Alaska State Legislature mandated that the
municipalities enact rules to prevent municipal officials from
voting in assembly if they have conflicts. She said Alaska is
one of only a few states in the entire nation that has no
preclusions for voting if there is a conflict. She noted that
some states have a strong threshold for precluding a legislator
from voting. She said she feels there is no point to SB 89 as
long as it does nothing to change [Uniform Rule 34(b)].
2:13:15 PM
REPRESENTATIVE EASTMAN said he was surprised on his first day as
a legislator to find that he had no option to abstain from a
vote. He noted that Alaska is one of a few states that does not
allow a legislator to abstain. He opined that the inability to
abstain is the perfect cover for a legislator who would vote
with bad motives. He said he understands that there are unique
aspects to being among the smallest state legislatures but
restated that it always felt odd to him. He shared concerns
with bills such as SB 89 that are built around the assumption
that conflicted legislators will vote anyway. He noted that the
bill also operates under the assumption that the public will not
be engaged, thus necessitating rules, restrictions, and
requirements to offset that disengagement. He said the ensuing
"counter-intuitive process" make the legislature more confusing
to members of the public who do wish to become engaged. He
called the process very strange and opined that SB 89 is not a
good solution.
2:15:25 PM
REPRESENTATIVE WOOL said he echoes Representatives LeDoux and
Eastman. He said the initial goal of House Bill 44 was to
change the Uniform Rules and that its prime sponsor sought a
situation in which the body determines whether a legitimate,
clearly-defined conflict should preclude a vote. He noted that
a ballot initiative drafted by an outside group had been
absorbed into House Bill 44. He spoke to how lobbyists can
skirt ethics rules related to taking a legislator out to dinner.
He expressed frustration with the provision that would punish
legislators by taking away their per diem for not passing the
budget by a certain date He noted that the business of the
House was delayed because organization was not achieved until 35
days into the session. He said it would be "punitive" to have
legislators pay for their own hotel room and meals in Juneau in
June. He advocated for a full repeal of House Bill 44 if
Uniform Rule 34(b) could be changed, which he reiterated was the
original intent of the original bill sponsor. He said most
other legislative bodies have a process for abstaining from a
vote due to a conflict. He said he appreciates the fix proposed
in SB 89, but there are constitutional issues with more than
just what it addresses.
2:17:43 PM
REPRESENTATIVE SHAW asked, "If we are affected by this law, or
we are conflicted by this law, how are we able to vote on this
law?" He noted that this might be "a rabbit hole."
MR. HUTCHISON said the broad scope of conflicts and the
restrictions placed upon legislators are what SB 89 is trying to
fix.
CHAIR CLAMAN clarified Representative Shaw's question: "If this
bill affects what we have to declare and what we don't have to
declare, don't we all have a conflict in voting on this bill, in
and of itself?" He pondered whether all 40 representatives and
all 20 senators are automatically conflicted because the bill
relates to their conduct.
MR. HUTCHISON said conflicts exist everywhere and to go in
circles raises the question, where does it end?
REPRESENTATIVE SHAW said the reason he asked what because he was
conflicted.
2:20:46 PM
REPRESENTATIVE KOPP commented that the committee should focus on
the original intent of SB 89's drafters to address only a narrow
portion of House Bill 44. He also noted that the Senate passed
the bill on "a pretty strong vote." He remarked that
Representative LeDoux eloquently shared her frustration with
[Uniform Rule 34(b)]. He suggested a separate bill to tackle
that issue. He stated that the drafters of SB 89 wish to simply
reset the conflict provisions to what they were prior to 2018 in
order to make them more manageable and to align them with
constitutional rights. He said SB 89 would enable legislators
to adequately represent a broader constituency versus removing
themselves from the job they were elected to do. He said SB 89
addresses two things on which the Senate was able to get
consensus. He noted that committee members have highlighted
additional things they would like to see changed. He stated
that the drafters of SB 89 did well to achieve their goal of
addressing the constitutional and pragmatic issues with House
Bill 44. He called the bill in front of the committee "very
reasonable."
2:23:14 PM
CHAIR CLAMAN said he agrees to some extent with previous
committee members who have shared concerns about the inability
to be excused from voting. He added that he is also really
troubled by the notion of being excused from voting. He pointed
to Article I, Section 6 of the Constitution of the State of
Alaska, which relates to the right to petition the government.
He noted that the state constitution can provide greater rights
than can the federal constitution. He remarked that each
constituent has the right to petition his/her government and
that the most direct means to petition the government is through
one's legislators. He stated that constituents have the right
to call their representative, have their representative vote,
and know how their representative has voted, no matter how many
"warts or conflicts or issues" that legislator may have. He
said to preclude a legislator who is also an ExxonMobil employee
from voting on an oil and tax bill would deprive that
legislator's constituents from access to one of their essential
representative forms of government. He noted that, while a
constituent of a conflicted legislator could conceivably get in
touch with a different legislator, there is no guarantee that
he/she would be treated with the same favor as one of the other
legislator's actual constituents. He reiterated his concerns
with anything that says a person cannot petition his/her
legislator and anything that would prevent that legislator from
voting on behalf of his/her constituents. He noted that he
feels the Select Committee on Legislative Ethics's
interpretation of House Bill 44 violates the Constitution of the
State of Alaska. He said the bill in front of the committee
purports to offer a fix to some of those problems. He said he
thinks it is a good bill for the committee to consider with
great care.
2:27:10 PM
REPRESENTATIVE LEDOUX said Chair Claman spoke eloquently about
the right to petition. She said that, to the extent that his
remarks are constitutionally valid, the legislature should go
back and redo all the laws mandating that the municipalities
preclude conflicted officials from voting.
2:27:43 PM
CHAIR CLAMAN said he thinks there is some point to that, but it
is not the bill in front of the committee. He announced that SB
89 would be held for further review.
2:28:42 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:28 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB089 ver K 4.1.19.PDF |
HJUD 4/1/2019 1:00:00 PM HJUD 4/5/2019 1:00:00 PM |
SB 89 |
| SB089 Sponsor Statement 4.1.19.pdf |
HJUD 4/1/2019 1:00:00 PM HJUD 4/5/2019 1:00:00 PM |
SB 89 |
| SB089 Sectional Analysis ver K 4.1.19.pdf |
HJUD 4/1/2019 1:00:00 PM HJUD 4/5/2019 1:00:00 PM |
SB 89 |
| SB089 Explanation of Changes ver U to ver K 4.1.19.pdf |
HJUD 4/1/2019 1:00:00 PM HJUD 4/5/2019 1:00:00 PM |
SB 89 |
| SB089 Supporting Document-Advisory Opinion 18-05 4.1.19.pdf |
HJUD 4/1/2019 1:00:00 PM HJUD 4/5/2019 1:00:00 PM |
SB 89 |
| SB089 Supporting Document-Advisory Opinion 19-01 4.1.19.pdf |
HJUD 4/1/2019 1:00:00 PM HJUD 4/5/2019 1:00:00 PM |
SB 89 |
| SB089 PowerPoint Presentation 4.1.19.pdf |
HJUD 4/1/2019 1:00:00 PM HJUD 4/5/2019 1:00:00 PM |
SB 89 |
| SB089 Fiscal Note LEG-SESS 4.1.19.pdf |
HJUD 4/1/2019 1:00:00 PM HJUD 4/5/2019 1:00:00 PM |
SB 89 |