Legislature(2015 - 2016)

04/14/2016 03:24 PM LEC


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03:34:59 PM Start
04:04:48 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                     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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