Legislature(1997 - 1998)
04/18/1998 10:03 AM House STA
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE STATE AFFAIRS STANDING COMMITTEE
April 18, 1998
10:03 a.m.
MEMBERS PRESENT
Representative Jeannette James, Chair
Representative Ivan Ivan, Vice Chairman
Representative Ethan Berkowitz
Representative Joe Ryan
Representative Kim Elton
Representative Mark Hodgins
MEMBERS ABSENT
Representative Al Vezey
COMMITTEE CALENDAR
HEARING
Alaska Railroad Right-of-Way
CS FOR SENATE BILL 105(FIN) am
"An Act relating to legislative and executive branch ethics;
relating to campaign finances for candidates for state office;
relating to the conduct and regulation of lobbyists with respect to
public officials; relating to the filing of disclosures by certain
state employees and officials; making a conforming amendment to the
definition of 'public official' for employment security statutes;
and providing for an effective date."
- HEARD AND HELD
(* First public hearing)
PREVIOUS ACTION
BILL: SB 105
SHORT TITLE: ETHICS/LOBBYING/CAMPAIGN FINANCE
SPONSOR(S): RULES BY REQUEST OF LEGISLATIVE ETHICS COMMITTEE
Jrn-Date Jrn-Page Action
2/25/97 494 (S) READ THE FIRST TIME - REFERRAL(S)
2/25/97 494 (S) STATE AFFAIRS, FINANCE
3/11/97 (S) STA AT 3:30 PM BELTZ ROOM 211
3/11/97 (S) MINUTE(STA)
3/13/97 (S) STA AT 3:30 PM BELTZ ROOM 211
3/13/97 (S) MINUTE(STA)
3/18/97 (S) MINUTE(STA)
3/25/97 (S) STA AT 3:30 PM BELTZ ROOM 211
3/25/97 (S) MINUTE(STA)
3/26/97 873 (S) STA RPT CS 3DP NEW TITLE
3/26/97 873 (S) DP: GREEN, MILLER, WARD
3/26/97 873 (S) FISCAL NOTE TO SB (ADM)
3/26/97 873 (S) ZERO FISCAL NOTE TO SB (LAA)
3/26/97 873 (S) FISCAL NOTE TO CS (ADM)
4/10/97 (S) FIN AT 5:00 PM SENATE FINANCE 532
4/10/97 (S) MINUTE(FIN)
4/10/97 (S) MINUTE(FIN)
4/15/97 (S) FIN AT 8:00 AM SENATE FINANCE 532
4/15/97 (S) MINUTE(FIN)
4/16/97 (S) FIN AT 8:00 AM SENATE FINANCE 532
4/16/97 (S) MINUTE(FIN)
4/16/97 (S) MINUTE(FIN)
4/16/97 1163 (S) FIN RPT CS 2DP 5NR NEW TITLE
4/16/97 1163 (S) DP: PEARCE; DP IF AM: PHILLIPS
4/16/97 1163 (S) NR: SHARP, PARNELL, ADAMS, TORGERSON,
4/16/97 1163 (S) DONLEY
4/16/97 1163 (S) PREVIOUS ZERO FN APPLIES (LAA)
4/16/97 1163 (S) ZERO FNS TO CS (LABOR, LAW)
4/16/97 1163 (S) PREVIOUS ZERO FN APPLIES (LAA)
4/18/97 (S) RLS AT 10:45 AM FAHRENKAMP RM 203
4/18/97 (S) MINUTE(RLS)
4/18/97 1276 (S) RULES TO CALENDAR & 1NR 4/18/97
4/18/97 1279 (S) READ THE SECOND TIME
4/18/97 1279 (S) FIN CS ADOPTED UNAN CONSENT
4/18/97 1280 (S) AM NO 1 OFFERED AND WITHDRAWN
4/18/97 1281 (S) AM NO 2 FAILED Y4 N13 E3
4/18/97 1282 (S) AM NO 3 FAILED Y4 N13 E3
4/18/97 1283 (S) AMENDMENTS 4, 5 NOT OFFERED
4/18/97 1283 (S) AM NO 6 ADOPTED Y12 N5 E3
4/18/97 1285 (S) AM NO 7 FAILED Y7 N10 E3
4/18/97 1286 (S) AM NO 8 FAILED Y5 N12 E3
4/18/97 1287 (S) AM NO 9 ADOPTED Y17 N- E3
4/18/97 1291 (S) ADVANCED TO THIRD READING UNAN
CONSENT
4/18/97 1291 (S) READ THE THIRD TIME CSSB 105(FIN) AM
4/18/97 1292 (S) PASSED Y15 N2 E3
4/18/97 1292 (S) EFFECTIVE DATE(S) SAME AS PASSAGE
4/18/97 1292 (S) LINCOLN NOTICE OF RECONSIDERATION
4/21/97 1334 (S) RECON TAKEN UP - IN THIRD READING
4/21/97 1335 (S) RETURN TO SECOND FOR AM 10 UNAN
CONSENT
4/21/97 1335 (S) AM NO 10 ADOPTED Y14 N5 E1
4/21/97 1336 (S) AUTOMATICALLY IN THIRD READING
4/21/97 1337 (S) PASSED ON RECONSIDERATION Y17 N2 E1
4/21/97 1337 (S) EFFECTIVE DATE(S) SAME AS PASSAGE
4/21/97 1370 (S) TRANSMITTED TO (H)
4/22/97 1232 (H) READ THE FIRST TIME - REFERRAL(S)
4/22/97 1233 (H) STATE AFFAIRS, FINANCE
2/05/98 (H) STA AT 8:00 AM CAPITOL 102
2/05/98 (H) MINUTE(STA)
2/12/98 (H) STA AT 8:00 AM CAPITOL 102
2/12/98 (H) MINUTE(STA)
2/17/98 (H) STA AT 8:00 AM CAPITOL 102
2/17/98 (H) MINUTE(STA)
2/19/98 (H) MINUTE(STA)
2/24/98 (H) STA AT 3:00 PM CAPITOL 102
2/24/98 (H) MINUTE(STA)
2/26/98 (H) STA AT 3:00 PM CAPITOL 102
2/26/98 (H) MINUTE(STA)
3/03/98 (H) STA AT 3:00 PM CAPITOL 102
3/03/98 (H) MINUTE(STA)
3/05/98 (H) STA AT 3:00 PM CAPITOL 102
3/05/98 (H) MINUTE(STA)
3/12/98 (H) STA AT 1:00 PM CAPITOL 102
3/12/98 (H) MINUTE(STA)
3/19/98 (H) STA AT 3:00 PM CAPITOL 102
3/19/98 (H) MINUTE(STA)
3/26/98 (H) STA AT 1:00 PM CAPITOL 102
3/26/98 (H) MINUTE(STA)
4/04/98 (H) STA AT 10:00 AM CAPITOL 102
4/04/98 (H) MINUTE(STA)
4/07/98 (H) STA AT 8:00 AM CAPITOL 102
4/09/98 (H) STA AT 8:00 AM CAPITOL 102
4/09/98 (H) MINUTE(STA)
4/16/98 (H) STA AT 8:00 AM CAPITOL 102
4/18/98 (H) STA AT 10:00 AM CAPITOL 102
WITNESS REGISTER
BEN BROWN, Legislative Administrative
Assistant to Senator Kelly
Alaska State Legislature
Capitol Building, Room 101
Juneau, Alaska 99801
Telephone: (907) 465-4823
POSITION STATEMENT: Provided information on SB 105.
NEIL SLOTNICK
Assistant Attorney General
Commercial Section
Department of Law
P.O. Box 1103000
Juneau, Alaska 99811
Telephone: (907) 465-3600
POSITION STATEMENT: Provided information on SB 105.
MIKE MCMULLEN, Manager
Division of Personnel
Department of Administration
P.O. Box 110201
Juneau, Alaska 99811
Telephone: (907) 465-4431
POSITION STATEMENT: Provided information on SB 105.
ACTION NARRATIVE
TAPE 98-54, SIDE A
Number 0001
CHAIR JEANNETTE JAMES called the House State Affairs Standing
Committee meeting to order at 10:03 a.m. Members present at the
call to order were Representatives James, Elton, and Hodgins.
Representatives Ivan, Berkowitz, arrived at 10:10 a.m. and 10:15
a.m. respectively. Representative Ryan arrived at an unspecified
time.
AK RAILROAD RIGHT-OF-WAY HEARING
SUMMARY OF INFORMATION
CHAIR JAMES announced the topic of the hearing was the Alaska
Railroad right-of-way between Fairbanks and Eielson Air Force Base.
LARRY SWENSON testified via teleconference from Fairbanks regarding
the Alaska Railroad right-of-way hearing.
PHILLYS JOHNSON, legal counsel for the Alaska Railroad Corporation,
testified via teleconference from Anchorage.
COMMITTEE ACTION
The committee took no action.
ADJOURNMENT
CHAIR JAMES closed the hearing at 10:55 a.m.
NOTE:
The meeting was recorded, and handwritten log notes were taken. A
copy of the tapes and log notes may be obtained by contacting the
House Records Office at 130 Seward Street, Suite 211, Juneau,
Alaska 99801-1182, (907) 465-2214, and after adjournment of the
second session of the Twentieth Alaska State Legislature in the
Legislative Reference Library.
TAPE 98-55, SIDE A
Number 0013
CHAIR JAMES called the meeting back to order at 10:59 a.m.
SB 105 - ETHICS/LOBBYING/CAMPAIGN FINANCE
Number 0009
CHAIR JAMES announced CS FOR SENATE BILL NO. 105(FIN) am, "An Act
relating to legislative and executive branch ethics; relating to
campaign finances for candidates for state office; relating to the
conduct and regulation of lobbyists with respect to public
officials; relating to the filing of disclosures by certain state
employees and officials; making a conforming amendment to the
definition of 'public official' for employment security statutes;
and providing for an effective date," is before the committee.
CHAIR JAMES called an at-ease, awaiting Mr. Brown.
Number 0012
CHAIR JAMES stated they are now on Amendment P.4.
Number 0017
MR. BROWN added that P.2 may be replaced by P.7 if it's to the
liking of the committee. He said Version P.2 is the state travel
ban, and P.7 has grown to three pages but it's very specific about
what a fund-raising event is.
Number 0025
REPRESENTATIVE BERKOWITZ pointed out that it shouldn't be P.4
because P.4 was the open meetings requirement. He said, "Of course
if you want to adopt the original P.4 we'd be happy for that, but
P.4 was the open meetings requirement," [which was defeated].
The committee discussed renumbering the amendments.
Number 0049
CHAIR JAMES suggested they call the next amendment, Amendment P.5.
Number 0062
MR. BROWN explained proposed Amendment P.5 responds to a concern
that step relationships ought to be included in the definition of
immediate family for purposes of exemptions from the restrictions
on gifts in the Ethics Code.
Page 21, line 5, following "equivalent":
Insert: ;
Page 21, lines 7 through 9:
Delete: AND ALSO INCLUDES A PERSON DESCRIBED IN THIS
SUBSECTION OR AS 24.60.990(a)(5) WHO IS RELATED TO THE PERSON
BY MARRIAGE]
Insert:: ] and
(6) [ALSO INCLUDES] a person described in this subsection [OR
AS 24.60.990(a)(5)] who is related to the person by marriage,
including step relationships
Number 0067
REPRESENTATIVE HODGINS made a motion to adopt proposed Amendment
P.5.
CHAIR JAMES asked if there were any objections. There being none,
Amendment P.5 was adopted.
Number 0070
REPRESENTATIVE HODGINS made a motion to adopt proposed Amendment
P.6 for purposes of discussion. There being no objections,
Amendment P.6 was adopted.
Number 0072
MR. BROWN explained Amendment P.6 makes several changes to the
executive branch ethics statute. He said, "The substantial changes
... had a few glitches' still, as sometimes happens to things this
complex - primarily dealing with the confidentiality issue of the
release of information about a person with whom the attorney
general has resolved the case. And then the (indisc.) Personnel
Board - the way we drafted it, gives them greater oversight
authority, we were going to enable them to publicly release the
details of that resolution if they thought that it wasn't in the
best interest of the state, if it didn't meet the purposes of the
Executive Branch Ethics Act. But that might have a due process
constitutional problem built in because that person's never had a
hearing. That person's never been able to, other than the one-on-
one negotiations to reach a settlement, really speak to his or her
own innocence - or the wrongs of the allegation."
Number 0084
CHAIR JAMES asked if there were any objections to Amendment P.6.
MR. BROWN stated an amendment to the amendment is going to be
offered, this is in addition to AS 39.52.120 which is the section
that restricts unethical behavior in the executive branch.
Page 48, line 3:
Delete: as described in this subsection
MR. BROWN explained it's deleted because, earlier in that sentence,
on line 2, "incidental campaign activities" are not described in
this subsection, so that was an erroneous reference. He asked Mr.
Slotnick if he would like us to delete the entire phrase "other
than incidental campaign activities as described in this
subjection."
A public officer other than the governor and lieutenant
governor who engages in political campaign activities [OTHER
THAN INCIDENTAL CAMPAIGN ACTIVITIES AS DESCRIBED IN THIS
SUBSECTION] during the work day shall take approved leave for
the period of campaigning.
Number 0098
UNIDENTIFIED SPEAKER asked why.
Number 0098
NEIL SLOTNICK, Assistant Attorney General, Department of Law, said
they have always advised executive branch public officers that they
cannot engage in campaign activities, on state time at all, period.
To allow this, other than incidental campaign activities, is
troubling to him because it implies that there can be such a thing
as incidental campaign activities, they just don't allow it. He
explained if it's part of your normal job duties then it's not
campaign activities as far as they have always interpreted the Act
on the executive branch side. He thinks that we need probably more
explicit language on the legislative side because there is so much
more political involvement.
MR. SLOTNICK concluded that he doesn't think we need to allow
incidental campaign activities, they're not trying to catch anyone
in a trap, but if you're going to require that they take leave for
campaign activities it should be explicit, "all campaign
activities."
Number 0108
REPRESENTATIVE BERKOWITZ asked how are you going to make a campaign
contribution, and you're working for the executive branch, you have
a campaign check inside your coat pocket or in your purse, you have
to drop off some mail, it's part of your job, and you put that
check in the mailbox along with everything else. That's incidental
campaign activity. What are you going to say, that we have to take
nanoseconds, it's absurd? There's got to be a little hole, if
something incidental comes along you can just deal with it rather
than saying you can't touch it at all. Representative Berkowitz
said he would suspect, that ultimately that winds up costing more
time to the state than just allowing someone to deal with their
other responsibilities or their other political (indisc.) simply.
Number 0117
MR. SLOTNICK replied we already have a provision in the Executive
Branch Ethics Act that speaks to significance. A violation has to
be significant, it has to be a significant use of state time, it
can't just be conjectural, it has to be a significant benefit to
your personal or financial interest. He said, "I believe I can use
that and that's in Section 110 of the Act. We would use that to
interpret this as a rule of reason, what you just described would
not be a significant violation in our view."
Number 0122
CHAIR JAMES added that she is trying to visualize these things
happening. She would say, in the legislature, we have to have that
because, as people will mail checks to their offices, staff
processes the mail, handles phone calls, and that sort of thing,
and there's no way to avoid it. It may well be that the executive
offices might get money in the mail at the government address.
Number 0131
MR. SLOTNICK noted that he was informed by Mike Nizich [Governor's
Office] that that does happen but it's the mailroom's
responsibility to deal with it, that's not engaging in campaign
activities. The way they deal with that is they call campaign
headquarters and say there's a check here, you must come and pick
it up.
CHAIR JAMES asked how do they know it's a check.
MR. SLOTNICK replied they open it up and see.
Number 0136
REPRESENTATIVE BERKOWITZ stated that is incidental to a campaign.
MR. SLOTNICK remarked that they would do the same thing if it was
not campaign.
REPRESENTATIVE BERKOWITZ said that doesn't matter, he's not worried
about the campaign because that's not covered. And this is
campaign related. He understands that no complaints will be filed
if it's substantial, he also wants to cut off the possibility of
people filing complaints based on incidental activity.
Number 0141
CHAIR JAMES said she understands Mr. Slotnick's argument, because
when you say incidental campaign activities it indicates more than
that. She also understands Representative Berkowitz' concern, to
have this loose enough to be sure that people don't get entrapped
in something that they just kind of walk into. She asked if they
could think of any other kinds of times besides the mail coming in
or going out that would not necessarily be their job.
MR. SLOTNICK replied answering the phone would be an example
because campaign related phone calls could come into the
governmental offices and they'd have to steer them away.
CHAIR JAMES stated see there again - that's part of their job to
answer the phone.
Number 0158
REPRESENTATIVE BERKOWITZ asked about the situation where someone
says, "Hey, are you going to go down to the campaign event." Not
necessarily for the governor, for someone else, or for another
issue. He stressed that those are incidental.
CHAIR JAMES remarked you shouldn't be talking about that on state
business.
REPRESENTATIVE BERKOWITZ stated but it's incidental - is someone
going to stand outside on the steps of the Capital and wait for the
people they're trying to get a hold of to come out.
Number 0164
MR. SLOTNICK said he would be very concerned about the use of the
term incidental campaign activities. He said it would seem to him
that a state worker might start using a state fax machine only to
do it once, only to do it twice, for campaign related materials,
could lend other state equipment, could get involved in a campaign
but not to a large extent. But then would come back and argue that
that was an incidental campaign activity. He reiterated what
they've always said in the past, is that you do not engage in
campaign related activity during the work day, period. Now this is
saying you can engage in incidental campaign related activity
during the work day.
CHAIR JAMES agrees.
Number 0171
REPRESENTATIVE BERKOWITZ asked what's the standard for the
legislature.
Number 0172
MR. BROWN replied, "This comes back to the whole issue of - for
different branches of government. Our original approach was to
give them all of our language and we've really come back from that
on his advice, but this is an example where different language may
be appropriate." Mr. Brown read the following standards:
In this section, when determining whether an employee is
considered to be performing a task on government time, the
committee shall consider the employee's work schedule as set
by the employee's immediate supervisor.
An employee who engages in political campaign activities other
than incidental campaign activities during the employee's work
day shall take leave (indisc.) campaign activity.
Number 0177
MR. BROWN noted we also define them, political campaign activities
while on government time are permissible if the activities are part
of the normal legislative duties of the employee including
answering telephone calls and handling incoming correspondence.
Number 0179
REPRESENTATIVE BERKOWITZ referred to the phrase, "political
campaign activities other than incidental campaign activities."
That's the standard the legislature lives by. He said, "We all
operate under that, we all know what it means. I don't see why the
executive should be in any other position than that."
Number 0183
MR. BROWN replied they explicitly discussed having a different
standard for employees in the governor's and lieutenant governor's
office for this kind of issue. But "he" didn't think it's a good
idea to muddy the waters of having a uniform Executive Branch
Ethics Code apply to everyone in that branch uniformly, other than
the two elected officials in that branch - that's part of the trade
off. He said specifically referring to these activities, "he"
thinks opens up more loopholes. Mr. Brown indicated the executive
branch has ultimately a higher standard that it's trying to
achieve, but it's much easier for the vast majority of the people
in that branch of government to achieve that because they're not as
involved in political activities as inherently as people in our
branch are.
Number 0194
REPRESENTATIVE KIM ELTON asked Mr. Brown, what he read a few
minutes ago, is that the definition of incidental campaign
activities.
MR. BROWN replied yes as proposed in Version P, at the committee's
recommendation.
REPRESENTATIVE ELTON said that definition does not automatically
transfer to the Executive Branch Ethics because it's under a
different statute. So there is no definition of incidental
campaign activities now or proposed for the Executive Branch Ethics
Act.
Number 0199
MR. SLOTNICK replied as SB 105 came over from the Senate, that
language on the legislative side was incorporated wholesale into
the executive branch side. In subcommittee, that definition was
taken out because it was decided that it was too problematic to
determine who is that person that is answering the phone in the
executive side that's engaging in incidental campaign activities.
It opened up far too many doors. He said they have a vast civil
service and they don't want any of them using state equipment to
engage in incidental campaign activities. So the definition was
taken out, he thought at the same time that that was taken out in
subcommittee they took out the permissive language other than
incidental campaign activities and yet, somehow it stayed in the
draft. So it's his recommendation, if we take the definition out
we also take out the permissive phrase that would allow incidental
campaign activities.
Number 0207
REPRESENTATIVE ELTON said we would either have to do that or we
would have to define in the Executive Branch Ethics Act and what
incidental campaign activity is.
MR. SLOTNICK said he agrees with that. Yet he feels, because we do
have the provision in the code that allows for us to employ - what
he calls the "rule of reason," the significant factor, the
conjectural factor.
Number 0212
CHAIR JAMES said if there is a complaint in the Administrative
area, it's going to go to Mr. Slotnick, or the supervisor, and it's
going to be filed within the Administration. In the case of the
legislature, if there's a complaint, it's an outside body that
doesn't have the same total understanding of how we do things.
Chair James noted that we have to specifically define things for
the ethics committee, and subsequently for us, specifically what we
can and can't do.
MR. SLOTNICK read AS 39.52.110, "Standards of ethical conduct for
members of the executive branch need to distinguish between those
minor and inconsequential conflicts that are unavoidable in a free
society and those conflicts of interests that are substantial and
material." Mr. Slotnick stressed that that's what they use.
Number 0230
REPRESENTATIVE BERKOWITZ suggested a friendly amendment to the
amendment.
Delete: incidental
Insert: other than minor, inconsequential, and unavoidable
MR. SLOTNICK stated the only problem he has with that is, that we
apply that standard from "110.3," we apply it throughout the ethics
Act. And to reincorporate it only into one phrase, only one
section of "120" is a little troubling to him because (indisc.)
understood when interpreting and applying the ethics Act that you
are to apply this standard, that comes from "110.3," for everything
in here. So to repeat that language, (indisc. - noise) that you
don't do things that are superfluous and unnecessary.
Number 0239
MR. BROWN pointed out it would read "for the period of campaigning"
at the end. He thinks this almost narrows the applicability of
this language to "see you at the fund-raiser, here's the check I
was going to mail."
REPRESENTATIVE BERKOWITZ indicated when people read the law they're
not going to read the entire body of law associated with this
particular subject matter, they might go right to this particular
section, which is, "Do I got the Gov. or the Lt. Gov., or the clerk
or not." If it says that minor and inconsequential - they'll say,
"Well, I don't (indisc.) him or beyond minor and inconsequential."
He said this is the starting point of the cookbook, it seems to him
that it bears repeating that phrase.
Number 0255
CHAIR JAMES made a motion to adopt the amendment to the amendment,
which would be to take out "other than incidental campaign
activities," lines 2 and 3.
REPRESENTATIVE BERKOWITZ objected.
CHAIR JAMES asked for a roll call vote. Representatives Ivan,
Elton and James voted for the amendment to the amendment.
Representatives Berkowitz and Ryan voted against it. Therefore,
the amendment passed by a vote of 3-2.
Number 0261
CHAIR JAMES asked if there was objection to amended Amendment P.6.
There being no objections, Amendment 6 was adopted.
Number 0264
REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment P.7,
insert: political campaign activities other than minor,
inconsequential and unavoidable campaign activities.
A public officer other than the governor or lieutenant
governor who engages in political campaign activities other
than minor, inconsequential and unavoidable campaign
activities during a work day shall take approved leave for the
period of campaigning.
Number 0272
CHAIR JAMES asked if there were any objections to that amendment.
There being none, Amendment P.7 was adopted.
Number 0282
MR. BROWN said Amendment P.8 is in response to an amendment which
removed the restriction on legislators and legislative employees
from taking administrative political or legislative action unless
required by the Uniform Rules and changes that so it simply says
you cannot vote unless it's required by the Uniform Rules. He
indicated Ms. Barnett was concerned that deleting the reference to
legislative employees in that restriction might open up problems.
MS. BARNETT replied that she does think it improves the situation
and would recommend it.
Number 0289
CHAIR JAMES read Amendment P.8 [Page 15, following line 7, insert
a new subsection to read]:
(i) A legislative employee may not directly, or by authorizing
another to act on the employee's behalf,
(1) seek to induce or induce a person to provide or not
provide a political contribution, donate or not donate to a
cause identified by the legislative employee, or provide or
not provide a thing of value by starting or implying that,
based on the person's decision about contributing, donating,
or providing value, the legislative employee will seek to
persuade or will cause a legislator to
(A) take or withhold a legislative, administrative, or
political action, including support or opposition to a bill,
employment, nominations, and appointment; or
(B) perform or refrain from performing a lawful constituent
service; or
(2) unless required by the Uniform Rules of the Alaska State
Legislature, take or withhold official action or exert
official influence that could substantially benefit or harm
the financial interest of another person with whom the
legislative employee is negotiating for employment.
Number 0296
CHAIR JAMES asked what was the original language.
MR. BROWN read, "Unless required by the Uniform Rules of the Alaska
State Legislature a legislator or legislative employee may not
participate in legislative, administrative, or political action if
the legislator or legislative employee has an equity or ownership
interest in a business, investments, real property, lease or other
enterprise, if the interest is substantial and the effect on the
action on that interest is greater than the effect on a substantial
(indisc.) person to which the legislator or legislative employee
belongs as a member of a profession, occupation, industry or
region."
Number 0303
MR. BROWN noted that was amended at the last meeting. This is a
new subsection that would only apply to employees because employees
were taken out. By taking out the reference to political,
administrative and legislative action and making it just a
reference to voting, as a restriction as legislators, that
substantially frees-up your range of action, that's not going to
conflict with the law. He said if we put this in, it will
substantially increase the potential for violating the law for all
of your employees.
Number 0314
CHAIR JAMES said there is a problem here. In number 1 they're
talking about campaign funds and...
MR. BROWN interjected or charitable causes. He said, "It certainly
would be illegal for me to say your bill isn't going to get
scheduled unless you buy a raffle ticket." This makes that more
explicit.
CHAIR JAMES said we all know we're not supposed to do that.
MR. BROWN stated it was probably already illegal under the code in
terms of personal benefits.
Number 0318
CHAIR JAMES said, "This all has to do with campaign funds doesn't
it, and I don't see any problem with that."
MR. BROWN remarked this goes beyond political contributions, this
gets down to manipulating the flow of financial resources through
misuse of...
CHAIR JAMES asked for a motion on Amendment 8.
Number 0324
REPRESENTATIVE ELTON made a motion to adopt proposed Amendment P.8
for purposes of discussion.
REPRESENTATIVE ELTON asked Mr. Brown, "Did I hear you say that what
we're doing is we're setting a much higher standard or threshold
for employees than we are for legislators."
MR. BROWN replied yes. ... He asked Ms. Barnett if this would open
up potential abuse by legislators who weren't covered by this
explicit language.
CHAIR JAMES said we can fix that easily.
Number 0334
MS. BARNETT replied she thinks it's probably not going to be
implied in there that a legislator can get away with something
because they're not directly listed because still have these - over
their head in different places.
MR. BROWN asked Ms. Barnett what was her concern when they took
legislative employees out of "g," does this really solve that
problem.
UNIDENTIFIED SPEAKER said let's just vote.
Number 0339
CHAIR JAMES said by taking them out of there that doesn't restrict
them from having any influence when they have personal interest,
which is different from this. She said they should also have a
line in here that says if they have a personal interest that
they're not allowed to do these things either. But she didn't know
if they wanted to be that restrictive because they're presuming
that the legislator makes the decisions in these offices and not
the staff. It seems to her that we don't need to say that.
Number 0349
MR. BROWN mentioned this prevents staff from stating or implying
that. It's an attempt to prevent horse trading ones' bosses
potential influence.
CHAIR JAMES asked if there was objection to Amendment P.8.
Number 0352
REPRESENTATIVE RYAN objected. He said he didn't think it's
necessary. A lot of people contact staff, wanting to get to the
boss, presuming that the person is wheeling and dealing - he spent
four years as staff and doesn't remember wheeling and dealing on
behalf of his boss. He said you make a presumption here that
somebody is doing something so we have to close the loophole. He
asked who the sponsor is.
MR. BROWN said he didn't know.
Number 0363
REPRESENTATIVE RYAN asked if there was a real compelling need for
this or is it just adding another brick to the wall.
CHAIR JAMES replied, "When we changed - because we had the
absurdity, ... that the paragraph that we had in here indicated if
we had any kind of a financial interest in something, and as a
legislator we were drafting a piece of legislation or drafting an
amendment, or doing something other than sitting in a committee
meeting and having a vote, that we did something and we had a
conflict, and there was no place to put it on the record we had to
make a little note to the ethics committee and tell them that we
drafted this amendment for this bill and it's going to affect us in
some way because of our own financial interest. And so then the
ethics committee gives it to the clerk and then they file this
conflict. I think that is absurd because the only real time that
we take a real action is when we vote either in committee or on the
floor. And so I certainly didn't want to be considering every time
I make something little as to whether or not I have a personal
interest in it. It seems like if it ever gets to the floor I can
certainly say - and we do that we have a personal interest or we
could do it in a committee. When we took that out, then that
paragraph that said that anybody who has a financial interest can't
be in any way participating or working on something that might be
construed that he or she would have a conflict. When we said the
only thing that we're talking about political action that you can't
do is you can't vote without declaring that. All these other
little things you do, you don't have to declare it. Well when we
did that, then we actually excluded legislative employees because
they never vote and they were included in there with legislators.
So there in - now we have legislative employees hanging out there
with no restrictions for them if they have a financial interest to
do things that might pursue or do their financial interest. Quite
frankly I think that's up to the legislator to be sure that they
work for, that they don't do that. I think that's an employee
issue, I don't know that we need this in that case, however, I
don't see any problem with it..."
TAPE 98-55, SIDE B
Number 0023
REPRESENTATIVE BERKOWITZ said this whole bill describes exactly
what we're trying to get to which is you don't make deals for votes
or for legislation. He indicated that was his first thought and
then he thought, "well, what happens - as happens inevitably,
people say I'll give you - you know this bill's not important to
me, and I know you've got something that is, and that kind of horse
trading starts happening."
CHAIR JAMES mentioned she was looking for it but that's not
defined.
Number 0029
REPRESENTATIVE IVAN IVAN said, "I haven't experienced anything like
this whatsoever. I don't know if it's a problem, I've never
experienced it, I've never seen it. I don't know why we're
restricting our offices. We do enough on the floor to disclose
this, we fill out forms to disclose what we own or what interest we
have. How far are we going to go into this - pretty soon you're
going to restrict my thinking?"
REPRESENTATIVE RYAN stated he has temporary employees, session
only, who have other business interests. He said his employee
raises money for a nonprofit and it could very easily be
misconstrued as somehow using his influence, not whether it's
justified or not, but here come the complaints.
Number 0053
CHAIR JAMES asked for a roll call vote on Amendment P.8.
Representative Elton voted for the amendment. Representatives
Ryan, Ivan, Berkowitz and James voted against it. Therefore,
Amendment P.8 failed.
Number 0061
MR. BROWN addressed Amendment P.9. He said the concern was that in
our attempt to ban fund-raising, at state expense, we weren't being
explicit enough in defining what a fund-raising event was. There
are two sections here. One deals with the legislative branch one
deals with the executive branch.
MR. BROWN explained a legislator can't travel at state expense to
a place where you're going to have a fund-raising event within 48
hours before the event is scheduled to begin. But, if the travel
is more than 48 hours then it's permissible. The idea there being
that you weren't traveling just for the purpose of the event.
MR. BROWN said, "Second, we have an exemption - that if you go
there, come back, and go back at personal expense, which would
allow Representative Hodgins to go from Kenai to Anchorage at state
expense for state business, go back to Kenai and then drive at his
own expense or fly on his campaign expense, and not have that 48-
hour window mess up his ability to have a fund-raiser."
Number 0073
MR. BROWN said and third, we allow the convening and adjourning
travel. He said it specifically allows incidental receipt of
money.
(d) In (c) of this section, an event is considered to be a
campaign fund raising event only if the legislator, or another
person acting on behalf of the legislator with the
legislator's express or implied permission,
(1) asks for contributions for the legislator's campaign at
the event;
(2) announces that the legislator will accept contributions
for the legislator's campaign at the event; or
(3) otherwise uses the event in a manner that clearly
demonstrates that a primary purpose of the event is to raise
contributions for the legislator's campaign; the fact that a
legislator received campaign contributions at an event is
insufficient, without other evidence, to satisfy the proof
required by the paragraph.
Number 0086
CHAIR JAMES asked if there were any objections to proposed
Amendment P.9. There being no objections, Amendment P.9 was
unanimously adopted.
CHAIR JAMES asked is that all of our amendments. It is her
intention to stop at noon.
MR. BROWN replied yes.
Number 0089
CHAIR JAMES announced, before we move it out, she would like to
have another CS so we can see what we've done and maybe move it out
on Tuesday. She asked if anybody else has anything that they want
to change now is the time.
Number 0093
MR. BROWN stated the speaker had a few more concerns and Mike
McMullen wants to talk about a big problem that came out of trying
to restrict the exempt service from running for office which begins
on page 38, Section 63 of Version P. We added exempt service and
the ability to take leave. By doing that we basically opened it up
for all the classified and partially exempt people which didn't
exist before. Mr. Brown said, "I don't know if it's the policy
call of the House State Affairs Committee that it wants everyone in
the classified and partially exempt service all of a sudden to be
able to just take leave and be a candidate..."
Number 0104
MR. BROWN referred to line 24, page 38, Section 63. He read:
The employee's position becomes vacant on the date
MR. BROWN stated, "But if I've taken leave, well then I'm on leave
so my position can't really become vacant, I'm just on leave." He
indicated they didn't need to deal with it now. Allowing them to
take leave is a huge change, which he believes the Alaska State
Employees Association would be in favor of.
Number 0109
CHAIR JAMES asked why did we make this change.
MR. BROWN replied currently it's technically legal for people in
the exempt service to run for office. And it's really out of all
categories of employees. They're the political appointees and it's
probably the likeliest that would not really be conducive to good
government to have your director of a division or your commissioner
running for office while serving in that capacity. Right now the
exempt service can run for office because they're not covered by
the Personnel Act. Mr. Brown said, "That's another potential
problem, the Personnel Act specifically is not supposed to apply to
the exempt service unless it specifically says that it does..."
Number 0118
MR. BROWN further explained, "Right now in the law, if you're in
the exempt service you can run for office. We attempted to change
it to prevent that which is probably a pretty consensus-oriented
thing. But that was a concern of Representative Ryan because he
doesn't want to mess up -- it's not just the commissioners - by
getting all the exempt service, we were taking teachers, university
employees, firefighters, and executive director's rights away to
run. And so the question became, Well, do we really want to do
that, we should allow them to take leave. He mentioned the leave-
taking language doesn't just apply to a new class of people we've
banned, it applies to everyone who is already banned in the
classified and partially exempt service."
Number 0125
MR. BROWN asked, "Do you want to allow everyone in all three
categories of state service to take leave? You thought it should
be leave-without-pay, but that didn't stay in but it's another
option that may be revisited. Or do you just want to allow those
in the exempt service to take leave of one form or another. And
keep the prior restrictions in (indisc.) on those in the classified
and partially exempt service."
Number 0129
REPRESENTATIVE RYAN said his concern was personal. In as much as
the University of Alaska-Anchorage is in his district and it opened
a whole new field of candidates of which he was going to contend.
He explained that's why he didn't favor that particular amendment.
Number 0132
MR. BROWN stated he knows representatives resigned their positions,
at the university, when they ran. He said that's not required by
the Personnel Act because they're in the exempt service, that's
required by the University of Alaska, personnel policy - he's
guessing. They were not prevented by AS 39.25.160 from running,
however we would explicitly be prohibiting their running, in a way
that was not done before, by adding the words "exempt service."
Because adding exempt in this section we refer to that whole list
of people that was attached to the amendment, that composed the
exempt service.
Number 0143
MR. BROWN suggested taking "exempt" out of the first sentence and
"take leave there" and you just have a separate sentence in this
section that says, "those in the exempt service cannot unless they
take leave - this doesn't apply to." He said this goes back to a
certain employee in the Department of Community and Regional
Affairs, in the prior Administration, who ran for State House while
he was the director of the division. It was Don Tanner when he was
Deputy Commissioner and the commissioner put an end to it.
Number 0148
CHAIR JAMES said we've already taken out the travel but it's very
difficult. She said, "As a legislator, I face this same issue of
separating between when I'm doing legislative work and campaign
work in the odd year. And I try to be very very careful. It's the
other thing that is very easy to do, if you're not careful, is
campaign so much that you can't get your legislative work done.
And yet our paycheck comes in every month, therefore, we better be
doing whatever we would be doing if it wasn't a campaign year. My
personal feeling about that is you don't just take off and just
campaign this year, you do your work and you campaign too. Anyone
else who's a challenger, if they have a job, ... many of them take
leave because campaigning is an extensive amount of time." She
concluded she doesn't think it's right for people who have a full-
time job on state pay to be out there running a campaign which
tells her that they're getting paid for not doing their job.
Number 0181
REPRESENTATIVE ELTON stated, "Im not sure we did the right thing
when they adopted the amendment. I don't know how we fix it, my
inclination is we want to expand the number of people that can -
that are running for government." He mentioned he was an exempt
employee when he ran for borough assembly. He had to take leave,
it was difficult for him to campaign as well as do his job as a
state employee. But he did that and he thought he did a pretty
good job once he got to the assembly, so he thinks that type of
activity should be allowed. Representative Elton said when he made
the decision, as an exempt employee, to run for the State House he
came to a different conclusion. He announced fairly early on what
he wanted to do, at that time he had control of a $15 million
budget and he didn't want to deal with the legislature and have
them see him as a candidate rather than as somebody who had control
of $15 million that had to go through the legislative budget
process. He also mentioned if we're going to treat the exempt
service differently than the classified service, or the partially
exempt service, that's not really fair either. He said he's sorry
that we adopted the amendment.
Number 0206
CHAIR JAMES indicated she didn't know if just taking it back out is
going to solve the problem. She thought maybe they should rescind
their action but didn't have a quorum.
CHAIR JAMES said when we changed the campaign finance law last year
we made it so that you cannot spend any of your campaign funds on
any personal expenses. When we did that we shut out a whole bunch
of people that could run because they aren't able to keep their
personal finances going for a three or four-month period while
they're campaigning. She mentioned she was totally opposed to that
amendment, but the reason that was in there is because of wanting
to be sure that people couldn't build up large sums and then take
it personally. She felt that, because if you do take anything and
it's not considered to be actual campaign expense, then it is
subject to federal income tax, if it's personal. She said she felt
comfortable to be able to have that.
Number 0226
CHAIR JAMES reiterated, "But if they're paid, by the state -
they're being paid for something, they can't be doing it while
they're campaigning. That's the other issue and I really don't
think that anyone who is working for the government should be able
to continue to have their paycheck and be campaigning, no matter
who they are."
Number 0229
MR. BROWN recommended taking the phrase "or take leave from" out
because (indisc.) is going to be perceived as fair that you treat
the exempt service differently than the partially exempt and
classified service?
Number 0232
CHAIR JAMES asked Mr. McMullen if that would solve the problem.
Number 0232
MIKE MCMULLEN, Manager, Division of Personnel, Department of
Administration, was next to testify. He said he appreciates the
debate because it's a different perspective than theirs entirely.
He indicated the legislators are viewing this in terms of whom the
competition is and good campaigns out there. The merit system
point of view here is that the public expectation, that public
employees are going to do their job, free of political influences,
that they're going to fairly and equitably administrate laws,
regulations, etcetera. He thinks the problem is when employees,
who are doing those things - one day, on a campaign trail the next,
and back in their office the day after, and then on the campaign
trail by going in and out of leave periods raises the suspicion of
the public that the employee's work is influenced by the political
agenda. And the whole view of public service, free from political
influence, he thinks runs completely afoul of allowing employees to
take leave, go campaign, and come back secure in their jobs.
Number 0242
MIKE MCMULLEN concluded a public job is not a right, people take
choices when they take those jobs, they take choices to leave those
jobs. Good employees and good candidates can go back and compete
for jobs afterwards. And their selection after a campaign, based
on merit and ability, need not have anything to do with a political
point of view, in fact shouldn't have. So the emphasis here isn't
on the ability to have good campaigning going on, which is the
debate which is going on, but in terms of the public perception of
the day-to-day delivery of governmental services. And if those
services are being performed by employees, who are politically
neutral following the statutes, regulations, and not some personal
or political agenda.
Number 0250
CHAIR JAMES asked, "Would taking out what we took, 'or take leave
from' out of here, would that meet your concerns?"
Number 0250
MIKE MCMULLEN replied yes, taking that out puts the ban back where
it was for (indisc.) and partially exempt for the committee to...
CHAIR JAMES interjected and adds the exempt people - which she
thinks should be in there.
MIKE MCMULLEN said the interesting thing about the exempt service,
is there are more nonpolitical appointees there than political
appointees. Emergency firefighters aside, there's up to 1,800 of
those in a summer - making up over half of the exempt service in
the executive branch even. The executive branch exempt service
includes the entire Marine Highway System. As a concession in the
early age statehood when the ferry system was first developed that
the maritime unions were already in place, and union halls would be
the way to hire those people, not a competitive (indisc. -
coughing). He indicated the three teaching units we have, at Mount
Edgecumbe, at (indisc.) and some correspondence studies, they're in
the exempt service, but not for political reasons.
Number 0258
MIKE MCMULLEN stated, "In terms of exempt service, not exempt
service, that the exempt service are not political appointees
necessarily. In fact the whole university system's exempt from
(indisc.). The exemption is (indisc.) the Personnel Act because it
implies there are other ..."
Number 0261
CHAIR JAMES said she understands that, but nevertheless they're
employees and they're getting paid a salary. It's not necessarily
what classification they're in it's that they're being paid for
what they're doing and they can't be doing it while they're
campaigning.
Number 0262
MIKE MCMULLEN continued. "So the ban going into - till the
amendment came up, was classified and partially exempt service were
banned, they declared candidacy, they give up their job. The
question on the exempt service - I don't think there's a single
question, I think the exceptions approach makes sense to say, 'Who
are political appointees,' that you'd expect to be able to run, and
who are not political appointees. And the public should expect
them to be free from political influence - is a reasonable approach
to dividing up that list."
Number 0268
CHAIR JAMES said if she had another vote we could take "leave from"
out of here.
Number 0269
MR. BROWN mentioned that would certainly be his recommendation
because it closes down a host of other potential problems. He
addressed the other problem that Mr. McMullen pointed out to him
which is, AS 39.20.225, the Compensations and Allowances Act, the
leave has to be approved. What this would do is give your
supervisor veto power over your candidacy.
Number 0273
REPRESENTATIVE ELTON asked when do you become a candidate, when you
file the letter of intent or when you file.
MR. BROWN replied, "In this case (indisc.) would be either, I
believe, but I don't have Brook here to back-up for me, but I think
the way that this is intended to be written is the declaration to
raise money -- unless you specify that it was for a municipal
office."
Number 0275
REPRESENTATIVE ELTON stated this only covers state.
MR. BROWN replied exactly.
Number 0279
CHAIR JAMES noted Amendment 10, page 38, line 23, delete "or take
leave from" and leave it so that they have to resign and taking
leave is not an option. She asked if there was any objection to
that amendment. There being no objections, Amendment 10 was
adopted.
[CSSB 105(FIN)am WAS HELD IN COMMITTEE]
ADJOURNMENT
Number 0287
CHAIR JAMES adjourned the House State Affairs Standing Committee at
12:10 p.m.
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