Legislature(2015 - 2016)
04/14/2016 03:24 PM House LEC
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
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ALASKA STATE LEGISLATURE
LEGISLATIVE COUNCIL
APRIL 14, 2016
3:35 PM
Approved August 3, 2016
MEMBERS PRESENT
Senator Gary Stevens, Chair
Representative Bob Herron, Vice Chair
Senator John Coghill
Senator Charlie Huggins
Senator Anna MacKinnon
Senator Kevin Meyer
Senator Peter Micciche
Representative Mike Chenault
Representative Craig Johnson
Representative Sam Kito
Representative Harriet Drummond, alternate
MEMBERS ABSENT
Senator Lyman Hoffman
Senator Lesil McGuire, alternate
Senator Cathy Giessel, alternate
Representative Mike Hawker
Representative Charisse Millett
Representative Mark Neuman
Representative Steve Thompson, alternate
OTHER MEMBERS PRESENT
Representative Reinbold
AGENDA
APPROVAL OF AGENDA
APPROVAL OF MINUTES
RATIFICATION OF CHARITY EVENTS
CONTRACT APPROVALS
OTHER COMMITTEE BUSINESS
SPEAKER REGISTER
Tina Strong, Procurement Officer, Legislative Affairs
Agency
Linda Lord-Jenkins, Ombudsman
Pam Varni, Executive Director, Legislative Affairs Agency
3:34:59 PM
I. CHAIR GARY STEVENS called the Legislative Council meeting
to order at 3:35 p.m. in Room 532 (Senate Finance) of the
State Capitol. Present at the call were Senators Meyer,
Huggins, MacKinnon, Micciche, and Stevens; Representatives
Chenault, Johnson, Kito, Drummond, alternate member, and
Herron. Senator Coghill arrived immediately after the
motion for renewing the Ombudsman lease. Senators Hoffman,
McGuire (alternate) and Giessel (alternate); and
Representatives Hawker, Millett, Neuman, Thompson
(alternate) were absent.
II. APPROVAL OF AGENDA
3:36:22 PM
VICE CHAIR HERRON moved that Legislative Council approve
the agenda as presented. The agenda was approved without
objection.
III. APPROVAL OF MINUTES
3:36:32 PM
VICE CHAIR HERRON moved that Legislative Council approve
the December 4, 2015, minutes as presented. The minutes
were approved without objection.
IV. RATIFICATION OF CHARITABLE EVENTS
a. 2016 Midnight Sun Charity Shoot
b. 53rd Annual Legislative Skits
CHAIR STEVENS said that the list of charitable events
before members for ratification had been confirmed by his
office as 501(c)(3) organizations and sanctioned by the
Chair.
3:37:05 PM
VICE CHAIR HERRON moved that Legislative Council ratify the
Chair's sanctioning of the following charitable events per
AS 24.60.080(a)(2)(B):
· 2016 Midnight Sun Charity Shoot
· 53rd Annual Legislative Skits
The events were ratified without objection.
V. CONTRACT APPROVALS
a. Office of the Ombudsman Lease Renewal
b. Stoel Rives Contract Amendment
a. Office of the Ombudsman Lease Renewal
3:37:41 PM
VICE CHAIR HERRON moved that Legislative Council approve
Renewal No. 1 of the Lease Extension with JRW Ventures,
Windward Town and Country Plaza, Inc. in the amount of
$42,025.30 for May 1, 2016 - April 30, 2017.
CHAIR STEVENS objected for purpose of discussion. He
requested Tina Strong speak to this item and noted that
Ombudsman Linda Lord-Jenkins was available on
teleconference for any questions as well.
TINA STRONG, Procurement Officer for Legislative Affairs
Agency, said the original lease for the Office of the
Ombudsman was for three years beginning May 1, 2013, and
will be terminated April 30, 2016. There are three renewals
of lease available under the lease agreement, each for a
one year period. The Office of the Ombudsman would like to
proceed with Renewal No. 1 for the period of May 1, 2016
through April 30, 2017. She said if Legislative Council
approves Renewal No. 1, this will leave two more renewals
of lease available before we have to go out to bid or do a
lease extension. This lease exceeds $35,000 in one fiscal
year, therefore Council's approval is required.
CHAIR STEVENS said that although there had been discussion
about moving some agencies into the Anchorage legislative
office building, the expiration on the lease is too soon as
we don't know where we are right now in terms of not
receiving confirmation on the purchase and, of course, the
Gottstein litigation has not been fully settled. He said
before Council takes any serious action, we need to wait
for some of those things to be decided, thus making it
necessary to move ahead on this one year lease renewal
option.
Discussion followed regarding whether a month-to-month
lease was an option since moving agencies into the
Anchorage office building was part of the proposal in
bringing down the overall cost. Further discussion
regarding the proposed schedule of moving agencies into the
Anchorage office building, including Legislative Budget &
Audit as well as the Eagle River legislative offices; how
many staff the Anchorage office building might accommodate;
and how much remodeling would need to take place in order
to move in these agencies, all of which would take time.
There was additional discussion regarding whether a
sublease would be possible as well as noting that the
Ombudsman lease was approximately $1.80 per square foot and
many other state leases were in the $3.00 per square foot
range, so it was likely the Ombudsman wouldn't be the best
target for maximum savings.
There being no further discussion, a roll call vote was
taken.
YEAS: Meyer, Coghill, Huggins, MacKinnon, Micciche,
Chenault, Johnson, Kito, Herron, and Stevens
NAYS: None
The motion was approved 10-0*.
*Initially, Representative Drummond was asked to vote, but
after some discussion, it was clarified that she is the
alternate for the minority House member only, and since
Representative Kito was present, her vote was made null.
b. Stoel Rives Contract Amendment
3:45:31 PM
VICE CHAIR HERRON moved that Legislative Council approve an
amendment to the legal services contract with Stoel Rives
LLP, in the amount of $100,000 to represent the Legislature
with any matters related to 716 W. 4th Avenue.
CHAIR STEVENS objected for purpose of discussion.
DOUG GARDNER, Legal Services Director, said that, in short,
we need more money. He said the balance currently with
Stoel Rives is $82,000 because this has been the first
opportunity to request additional funds be approved by
Legislative Council. He said he was requesting an
additional $100,000 to ensure we can pay current bills and
to ensure there is enough should it be needed for
additional work, depending on what the Legislature does
regarding the budget in the next couple of weeks.
REPRESENTATIVE KITO asked Mr. Gardner to confirm that the
original $100,000 approved for work by Stoel Rives had been
expended, there is an additional $82,000 in new billings
and Mr. Gardner is requesting $100,000 to give him some
leeway depending on what happens with the Gottstein
litigation. Mr. Gardner confirmed that was correct.
A roll call vote was taken.
YEAS: Meyer, Coghill, Huggins, MacKinnon, Micciche,
Chenault, Johnson, Kito, Herron, and Stevens
NAYS: None
The motion was approved 10-0.
VI. OTHER COMMITTEE BUSINESS
a. FY15 Legislature Audit
b. Records Policy Amendment
a. FY15 Legislature Audit
CHAIR STEVENS noted for members that no action was needed
on this item and asked Pam Varni to speak to it.
PAM VARNI, Executive Director for the Legislative Affairs
Agency, stated that Elgee, Rehfeld, Mertz are the
independent auditors and there was one more renewal option
left under the current contract. She said it was a clean
audit with no exceptions.
There were no questions and no action regarding this item.
b. Records Policy Amendment
3:48:16 PM
VICE CHAIR HERRON moved that Legislative Council approve
the amendment to the Legislative Council Records Policy as
per the attached draft.
CHAIR STEVENS objected for purpose of discussion and asked
Mr. Gardner to speak to this issue.
MR. GARDNER said one of the main purposes of Legal Services
is to protect and defend legislative immunity. Some of the
items Legislators have in their office might not be subject
to legislative immunity, some may; it's a complex
discussion beyond probably where we are today. He said the
problem was a Legislator has records that are subject to
immunity, records and analyses of the things within the
sphere of one's legislative duties. When a Legislator dies
and they haven't left any instructions, Legal Services
believes that the fairest reading of the constitution was
that, absent a waiver, those records remain confidential
and subject to legislative immunity. Then it becomes very
difficult for the people who are addressing the records
without any direction from the Legislator that holds the
immunity to deal with them. He said at the direction of the
Chair and working closely with the Rules Chair offices
(Representative Johnson and Senator Huggins), Legal
Services tried to tackle this issue by creating a form that
would explain legislative immunity and an attempt to
address this issue as it pertains to records when a
Legislator becomes disabled or dies in office. One of the
aspects of the form that was important was for Legislators
to have the option to designate someone who can address
those records. Without a form such as this, Legal Services'
position is that a Legislator's records remain confidential
in order to protect the Legislator and maintain
constitutional confidence.
Mr. Gardner said that on page one, the incapacity of a
Legislator was addressed in paragraph B; death of a
Legislator was addressed in paragraph C, much in the same
way, which is basically an assertion that those records are
subject to immunity and are confidential unless, in section
D, there is a waiver. The waiver imposes the responsibility
on the Agency to provide a form to each Legislator at the
beginning of each Legislature. The form would be very easy
to change at any time. The default position in the policy
is that the records won't be released if there is no waiver
on file. He said section E was a really important section
that provided for responsibility of office records and
outlined possible examples. Section E noted that the
responsibility for organizing and maintaining documents
rests with each Legislator; acknowledging that all of the
different confidences were in a honeycomb of the
Legislator's records. He said there was some discussion
with the Rules Chairs that if this policy was adopted,
there might be some training during Legislative Orientation
that provides for best practices for record keeping under
this policy. The policy focuses on preserving legislative
immunity to the maximum extent possible while recognizing
that Legislators have the authority to release records and
will be responsible for any release that occurs.
Mr. Gardner said that he recently discovered that the
Legislative Affairs Agency was storing a fair number of
records for certain Legislators. In recognition of the fact
that the Agency does not want to be handling too many
confidential records; both from a legal and a space
standpoint. Should something happen, the provisions in the
policy noted that the Agency will not be storing records
for more than five years; within 90 days, they would
address records left over if a Legislator dies or leaves
office - either with a dispersal per the instructions or
with a confidential burn of the records if there was no
directive.
Mr. Gardner said it would be very helpful both to Legal
Services and to individual Legislators if Legislative
Council considered and implemented the policy.
CHAIR STEVENS said that past situations have placed the
Legislative Affairs Agency in a very difficult position and
the policy solves it; he said he appreciated the good work
of the Rules Chairs - Senator Huggins and Representative
Johnson - who helped move this forward.
REPRESENTATIVE KITO said there wasn't must time provided to
review the policy before Council and it would be helpful to
have the opportunity to understand the full implications.
He said for himself as a Legislator right now, he has
documents in his office, documents on his computer, and
when he leaves office, those documents are what? Does Legal
Services hang onto those and tells him what he can take or
does he remove them as he leaves office?
MR. GARDNER said he didn't know the answer to that. It's
something Legal Services has discussed and it's a good
question, but they don't have an answer at this time.
REPRESENTATIVE KITO said that Legislators retire or leave
office all the time; what happens to their documents?
MR. GARDNER said that as a practical matter, Legislators
probably elect to take their records. The difference
between that and a situation where a person dies in office
is that, for instance, you-Representative Kito-have sorted
your records; decided you want to take some and that's a
conscious decision. You may decide you want to give them to
the University of Alaska, but that's a conscious decision
by you. If someone dies without a waiver, they're not able
to make that decision and, in recent events, this office
has been put in a very difficult position trying to work
through that. He said he thought Representative Kito could
take his records; they are his.
REPRESENTATIVE KITO followed up to say that, if he can take
his records, he understands there might be issues that
might be confidential. That means, as he believes it, that
those records belong to him and, therefore, being personal
property, if he dies in office then his heirs should be
eligible to receive those documents; understanding that if
his heirs are receiving those documents, that he could
expect that Legal Services would go through and identify if
there are confidential item(s) that shouldn't be released
to an heir. He said it still seems to him that those
documents, because they were in the position of the
Legislator and did not belong to Legislative Affairs at the
time, would still be in possession of the Legislator when
the Legislator passes away; and that Legislator's documents
should go into the estate of the Legislator minus the
Legislative Affairs review of the documents that might be
confidential.
MR. GARDNER said that the premise in the question, that
they are your records, is true to the extent that you waive
that confidentiality and that you are alive to deal with
them. He said Legal Services has given a lot of
consideration to this and there is not a lot of law in
America that really addresses this. He said there is an
argument that you create these things on State time and
with State effort, and there are some competing interests
there in terms of whose property they are. He said that if
a Legislator is alive and can waive them, he thinks that
the Legislator can make a decision about their records;
they're not incapacitated and you can take them. He didn't
want to comment on Representative Gruenberg's situation
which is really the line of questioning that Representative
Kito was taking him down.
Mr. Gardner said that Legal Services' position, and what
they think the law clearly is, if you don't waive it, the
legislative body has an interest in legislative immunity.
This is not just an individual situation; that also is not
settled in the case law. That's why we're dealing with this
as a policy. In any one Legislator's records, there may be
emails between Legislators, and the body has an interest in
this. To say it is your property, he does think you can
leave with your records if you can make that decision. He
absolutely does not think they are personal property that
passes through a will.
REPRESENTATIVE KITO said he may disagree. If he leaves
office, his term expires, he takes the information with
him-emails that he has sent or received. He is now out of
office and he takes that email and shares it with somebody
else, he doesn't see Legal Services coming in and being
able to exercise authority over him after he was no longer
a Legislator.
MR. GARDNER agreed with that. He said Legal Services has
been put in a very difficult position absent a waiver where
there are a lot of records that you all have a
constitutional interest in as a body. He said they are not
trying to police anybody. If you leave office and you
disclose files and they have confidential information in
them, that's your business and your problem; but when we
have a Legislator that dies, we've got this situation for
the body, we've got to protect the immunity. He said he
thinks the case law is clear that upon death, he does not
believe that the records of a Legislator, absent a waiver,
pass through a will. They are not like personal property.
The courts have said that in order to release records,
there has to be a clear and specific waiver so that people
don't get ahold of a Legislator's records after they die.
They are not personal property that pass through a will. If
he didn't think that, the current situation with
Representative Gruenberg's files would be handled very
differently.
CHAIR STEVENS said the real difficulty is that if someone
were to die in office, it puts us in a very difficult
position.
REPRESENTATIVE KITO said he was trying to understand why
there is a distinction. He offered the hypothetical
situation that if his term expired on January 1, 2017, he
had all of his stuff packed up, and on January 1, 2017, he
died; he questioned what happened to all of those records.
MR. GARDNER said he does not have a perfect answer for all
that. There are some practical realities and he thinks once
the documents leave and a Legislator has made the conscious
decision to take them out, he thinks that under some
circumstance the Legislature might be able to step in if
there's an immunity issue. He doesn't know what the lengths
are and he is trying to be practical and pragmatic.
REPRESENTATIVE JOHNSON said they discussed piercing the
legislative immunity veil and what the consequences might
be. He asked Mr. Gardner if he was confident that with this
waiver, the Legislature would not be in that situation.
MR. GARDNER said he wouldn't mind having additional
discussion in an executive session.
CHAIR STEVENS noted that Council needed to vacate the room
for a scheduled conference committee meeting. He postponed
this item for the next Legislative Council meeting, and
encouraged all members to sign the waiver as he had done in
case any of them expired between now and the next meeting.
There being no further business before the committee, the
Legislative Council meeting was adjourned at 4:05 p.m.
4:04:48 PM
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