Legislature(1997 - 1998)
04/07/1998 08:06 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 7, 1998
8:06 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
Representative Jerry Sanders
MEMBERS ABSENT
Representative Al Vezey
COMMITTEE CALENDAR
* HOUSE BILL 330
"An Act repealing the termination date of the state training and
employment program; and providing for an effective date."
- SCHEDULED BUT NOT HEARD
* HOUSE BILL 257
"An Act relating to voter qualification, disqualification, and
registration; to voter registration officials; to election notices;
to mail elections; to certain voting procedures; to the
transportation of ballots; and to the official election pamphlet
and certain immunity from liability regarding claims arising from
publication of the official election pamphlet."
- SCHEDULED BY NOT HEARD
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
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.
SUZIE BARNETT, Professional Assistant
Legislative Ethics Committee
P.O. Box 101468
Anchorage, Alaska 99510
Telephone: (907) 258-8172
POSITION STATEMENT: Available to answer questions on SB 105.
ACTION NARRATIVE
TAPE 98-49, SIDE A
Number 0001
CHAIR JEANNETTE JAMES called the House State Affairs Standing
Committee meeting to order at 8:06 a.m. Members present at the
call to order were Representatives James, Ryan, Elton, Hodgins and
Sanders. Representatives Berkowitz and Ivan arrived at 8:18 a.m.
and 8:30 a.m. respectively.
SB 105 - ETHICS/LOBBYING/CAMPAIGN FINANCE
Number 0003
CHAIR JAMES announced CSSB 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," was up before the committee and confirmed
Suzie Barnett was available via teleconference.
Number 0005
BEN BROWN, Legislative Administrative Assistant to Senator Kelly,
Alaska State Legislature came before the committee. He indicated
they would pick up where they left off on Version LS0074\L, 4/2/98,
Section 28, page 19.
Number 0010
CHAIR JAMES introduced Representative Jerry Sanders as a new member
of the House State Affairs Standing Committee.
Number 0013
MR. BROWN explained Section 28 increases the amount that one can
take in a gift annually, AS 24.60.080(a) currently has a limit of
$100, the ethics committee recommended increasing it to $250
because $100 isn't a substantial enough level.
MR. BROWN stated during session, it's not legal to take anything
from lobbyists except for food and beverage for immediate
consumption. That's what they have been enforcing. This actually
puts it into statute in a real explicit manner.
(a) Except as otherwise provided in this section, a [A]
legislator or legislative employee may not solicit, accept, or
receive, directly or indirectly, a gift worth $250 [$100] or
more, whether in the form of money, services, a loan, travel,
entertainment, hospitality, promise, or other form, or gifts
from the same person worth less than $250 [$100] that in a
calendar year aggregate to $250 [$100] or more in value.
Except for food or beverage for immediate consumption, a
legislator or legislative employee [, AND] may not solicit,
accept, or receive during a legislative session a gift with
any monetary value from a lobbyist or a person acting on
behalf of a lobbyist.
Number 0031
REPRESENTATIVE KIM ELTON mentioned he is scheduled to solicit on
behalf of KT00 radio for their fund-raising drive tomorrow morning.
He asked Ms. Barnett what happens if a lobbyist calls in and
donates to KTOO.
Number 0036
SUZIE BARNETT, Professional Assistant, Legislative Ethics
Committee, testified via teleconference. She replied there's an
advisory opinion that came out before you began serving on the
ethics committee that allows for solicitation for charitable
organizations so long as they meet certain conditions, including
"501 c" status, or recognized as local and ongoing charitable
organization. She concluded that she will provide that information
to him and reiterated that it is fine for him to do that, but he
personally could not accept a gift.
Number 0044
MR. BROWN said Section 29 are some exemptions to the ban on
receiving gifts, notwithstanding (a) of this section, it's not a
violation of this section for a legislator or legislative employee
to accept - this allows you to stay at someone's house and have
that be hospitality. He said the bill would put in a restriction
on the exemption that a vacation home outside the state is not
considered a residence, so you can't go to someone's condo in
Hawaii and say, "Oh, I was just staying overnight at their house."
That's a gift of value under the code if it's outside the state.
(A) with incidental transportation at the residence of a
person; however, a vacation home located outside the state is
not considered a residence for the purposes of this
subparagraph; or
MR. BROWN stated Section 29 will also permit the receipt of
discounts, if you were traveling, you could save the state money,
but not be perceived for being unethically given a gift.
(B) when on official state business, but only if receipt of
the discount benefits the state;
Number 0052
MR. BROWN referred to page 20, lines 17 through 26 of Section 29.
He said this allows legislative session discounts on behalf of the
capital city.
(7) a discount for all or part of a legislative session,
including time immediately preceding or following the session,
or other gift to welcome a legislator or legislative employee
who is employed on the personal staff of a legislator or by a
standing or special committee to the capital city or in
recognition of the beginning of a legislative session if the
gift or discount is available generally to all legislators and
the personal staff of legislators and staff of standing and
special committees; this paragraph does not apply to
legislative employees who are employed by the Legislative
Affairs Agency, the office of the chief clerk, the office of
the senate secretary, the legislative budget and audit
committee, or the office of the ombudsman.
Number 0060
MR. BROWN stated Section 30 deals with disclosure of the value of
gifts. The dollar amount has been raised from $100 to $250 for
conforming purposes and the deadline has been brought forward two
months. The idea there being that the earlier the public knows
about the receipt of these gifts, the higher the public policy is
served.
(d) A legislator or legislative employee who accepts a gift
under (c)(4) [OR (6)] of this section shall disclose the gift
if it has a value of $250 [$100] or more; the [. THE]
disclosure must include the name and occupation of the person
making the gift, [AND] the approximate value of the gift, and
[. A GIFT UNDER (c)(4) OF THIS SECTION REQUIRED TO BE
DISCLOSED UNDER THIS SECTION] shall be disclosed to the
committee within 30 days after [OF] the receipt of the gift.
Except as provided in (i) of this section, a gift [TO THE
COMMITTEE. GIFTS] under (c)(6) of this section that has a
value of $250 or more shall be disclosed to the committee
annually on or before February 15 [APRIL 15] of the following
calendar year; the [AND THE] disclosure needs to include only
a description of the gift and the identity of the donor [THE
VALUE ONLY IF THE VALUE OF THE GIFT EXCEEDS $250].
MR. BROWN said originally these disclosures were made to Alaska
Public Offices Commission (APOC) in addition to the ethics
committee and in order to reduce paperwork and unnecessary red
tape, the committee is going to be the recipient of the reports and
in turn will forward them to APOC so that they are available to the
public.
The committee shall forward to the Alaska Public Offices
Commission copies of the disclosure concerning gifts under
(c)(4) of this section that it receives from legislative
employees who are required to file financial disclosure
statements under AS 24.60.200 and from legislators.
MR. BROWN asked Ms. Barnett if she had a "web page" for publishing
disclosures other than the Journal.
MS. BARNETT replied no, but they do keep a list available and when
people ask they provide it.
MR. BROWN reported APOC on the other hand, has a user friendly
format where most everything filed with the commission is available
on the web.
Number 0072
REPRESENTATIVE JOE RYAN asked about the fiscal note.
MR. BROWN reported the fiscal notes have not been revised since
many of the changes were made. He said, "The most expensive part
of the bill was the ramping up of the Executive Branch Ethics Act
and transference of a lot of the duties from the Department of Law
to the Personnel Board. Now that the proposal that we're looking
at, is not going to transfer anywhere near as much of that
responsibility, or work, I think the fiscal note will shrink
precipitously. The same thing for the APOC fiscal note, now that
we've reduced a number of people in the executive branch who are
going to be filing public official disclosure forms, I'm hoping to
see that fiscal note shrink. ... To really answer your question,
they were quite large. The fiscal note, since this bill passed the
Senate and came over, it was in the order of a quarter million
dollars a year from the Personnel Board, seventy thousand dollars
a year from APOC, zeros from Law, LAA [Legislative Affairs Agency]
and from..."
UNIDENTIFIED SPEAKER interjected, "Let's let Law handle it all
then."
Number 0086
MR. BROWN moved onto Section 31. He indicated this is what Ms.
Barnett calls the "low-budget campaign" section of the bill. It
specifies that a small amount of a contribution that has to be
reported under the Campaign Finance Act doesn't have to be
considered a gift under this section.
(e) A political contribution [THAT IS REPORTED UNDER AS
15.13.040] is not a gift under this section if it is reported
under AS 15.13.040 or is exempt from the reporting requirement
under AS 15.13.040(g).
MR. BROWN asked Ms. Barnett to speak on this issue.
MS. BARNETT said if Brook Miles is there, she can speak to this
better because these low budget campaigns were created in campaign
finance reform. She explained, "What this change is, is saying
that, you know we've always said - and the law is clear in stating
that contributions to campaigns are not gifts. And this further
clarifies that, given that change in campaign finance reform and
the creation of these little low-budget campaigns, still
contributions to those are still not gifts."
Number 0096
CHAIR JAMES asked what is the limit on the new change.
UNIDENTIFIED SPEAKER replied $2,500.
CHAIR JAMES said the limit used to be $1,000. If you have a
campaign that is less than $2,500, you don't have to consider those
as gifts.
MR. BROWN replied in the affirmative. And they're also exempt from
the standard reporting under the Campaign Finance Act.
UNIDENTIFIED SPEAKER asked if that includes municipal campaigns.
MR. BROWN replied yes it does.
Number 0101
MR. BROWN said Section 32 is an exemption of the gift restrictions
that deal with the receipt of gifts from foreign governments or
other governmental entities. This has been defined to include
other states, local governments and foreign governments. He
mentioned, "This is to allow the receipt of gifts for protocol
purposes by legislators. ... Even if somebody from the City of
Kenai comes and wants to give you something, as long as you receive
it in a public spirited context on the behalf of the legislature,
this exempts your receipt of it."
Number 0109
MR. BROWN said Section 33 redefines what we call family members for
the purposes of the Legislative Ethics Code.
(g) In this section, "immediate family" or "family member"
means
(1) the spouse of the person;
(2) the person's spousal equivalent;
(3) a child, including a stepchild and an adoptive child, of
the person or of the person's spousal equivalent;
(4) a parent, sibling, grandparent, aunt, or uncle of the
person; and
(5) a parent, sibling, grandparent, aunt, or uncle of the
person's spouse or the person's spousal equivalent
Number 0116
REPRESENTATIVE MARK HODGINS asked when can they start making
amendments to delete some of this stuff.
CHAIR JAMES replied when they've completed going through the bill.
CHAIR JAMES noted Representative Berkowitz arrived.
UNIDENTIFIED SPEAKER jokingly said, "Delete all of the above."
Number 0124
MR. BROWN explained Section 34, page 22, adds five new subsections
to the gift portion of the statute. He informed Representative
Elton that this is where we get to the question you asked earlier.
(h) Notwithstanding (a) of this section, a legislator or
legislative employee may solicit, accept, or receive a gift on
behalf of a recognized, nonpolitical charitable organization.
(i) A legislator or legislative employee who receives an
inheritance worth $250 or more from a person other than a
family member shall disclose the fact of the receipt of an
inheritance and the identity of the decedent to the committee
by the deadline set out in AS 24.60.105. The committee shall
treat the disclosure as a disclosure relating to a gift not
connected to the recipient's legislative status under (c)(6)
of this section. This subsection does not require disclosure
of the value of the inheritance.
MR. BROWN explained it deals with the receipt of the inheritances
and makes the disclosures subject to a different standard of
confidentiality, upon receipt by the committee.
Number 0131
REPRESENTATIVE ETHAN BERKOWITZ asked why is this in here.
MS. BARNETT replied Senator Pearce felt that there was no way to
deal with inheritance at the moment under the Ethics Code and that
there should be a way to disclose it confidentially and handle it.
REPRESENTATIVE BERKOWITZ said it seems to him that if he inherited
something - and he gets property out of it, it goes on his
financial disclosure forms.
MS. BARNETT replied she doesn't think that the committee itself is
wedded to this particular section. It was just a proposal on the
senator's part as way to deal with an inheritance.
Number 0142
MR. BROWN said (j) deals with the gift of volunteer services to a
legislator. It specifically allows university interns and the Job
Training Partnership Act, gifts of volunteer services. It would
not permit BP [British Petroleum] to pay for an extra staffer in
your office - and that's the idea.
REPRESENTATIVE HODGINS asked if that would include the University
of Alaska.
MR. BROWN replied no. This specifically allows internships from
the University of Alaska and the Job Training Partnership Act.
Number 0149
REPRESENTATIVE RYAN referred to line 7, "This section does not
permit a legislator or legislative employee to accept a gift of
services for nonlegislative purposes." He said there goes your
campaign help out the window.
MR. BROWN stated he doesn't think it has that far reaching effect.
CHAIR JAMES implied it is an outright statement.
REPRESENTATIVE BERKOWITZ said, "If we're running a business and
someone wants to come to a (indisc. - talking) in the business,
that's a gift of services, not just for the campaign."
CHAIR JAMES agrees with him. She said, "I was thinking that a gift
of services for nonlegislative purposes - and I'm thinking about
all of us who are in business while we're working as a legislator
and particularly when we're in the interim, even more so. ... Quite
frankly, I have a lot of problem with that when it's for
nonlegislative purposes because I thought that we had - a little
back further here, that says we can accept gifts for nonlegislative
purposes - we just went by that one."
Number 0164
MR. BROWN replied this question has been raised several times.
"Because the reference in that sentence that we're questioning here
refers to the subsection, I don't think it in any possible way
undoes your right to accept gifts under any other part of the
statute. It's merely an attempt to prevent the language here from
enabling you to have BP pay for a maid to come clean your house and
use subsection (j) as a defense of that arrangement as according to
the drafter."
REPRESENTATIVE RYAN pointed out nobody anticipated that putting a
sign up would be a political contribution. Nobody anticipated that
women coming to a political luncheon would count as part of the
total amount of money that a party could raise. He indicated some
organizations don't show common sense. He concluded, "I'll be
darned if I want to give them another reason to make a stupid
interpretation of the law. So I think I'm going to move, when the
time comes to solve this problem early on, we'll just delete this
baloney and go on."
MR. BROWN asked Ms. Barnett if deleting that last sentence of
subsection (j) would damage the new statute.
Number 0176
MS. BARNETT clarified that gifts are gifts and you just have to
figure out how they apply. She said she believes Representative
James and Berkowitz have a legitimate question. Ms. Barnett said,
"If you are receiving a gift - regardless in which capacity or part
of your life - with a value in this bill of over $250, then you
need to figure out how it fits into the gift code. In this
section, I believe that you don't need to worry about this last
line because it - to me it clearly says - it refers to this
subsection and it's saying to you that it's only talking about
volunteer services and trainee services."
MS. BARNETT noted, "In a larger capacity, and the question about
campaigns that Representative Ryan asked, I believe that Brook
Miles could speak to because there are definitions of that in our
Ethics Code - exempts those. You don't have to worry about
volunteer time in your campaigns. A volunteer to your business, an
intern to your business - I've never addressed that question
before. But I honestly don't feel the code applies to it." She
indicated she can work on that question and get back to the
committee.
REPRESENTATIVE HODGINS said he believes it does speak to that. He
indicated he would be in violation if a relative came into his post
office and volunteered an hour or two, he would be in violation of
that with this subsection.
CHAIR JAMES stated family doesn't count, but she believes if it was
his neighbor or a good friend then it would be a violation so she
has a real problem with that. She asked, is it that you cannot
take a gift over $250, if you do you have to disclose it.
Number 0200
MS. BARNETT replied generally that's the line, (if the bill passes)
anything below that ($250) is an acceptable gift regardless of whom
it's from. There's not a reporting requirement. At the point at
which you hit the $250 mark, or today at the point at which you hit
the $100 mark - then you have to start asking yourself questions,
"Does this gift fit into any of the exceptions." Ms. Barnett
concluded you'll have to disclose if it fits into any of the
exceptions. If it doesn't fit into any of the exceptions, then you
have to return the gift.
REPRESENTATIVE HODGINS said, "I'm the contractor for the Nikiski
Post Office, and I have an agreement with the school, not the
University of Alaska, to allow kids to come in under their
Vocational Education Program - and they work for less dollars than
the normal employee - the rates that they work for, that's less
than the normal employee, is that a gift."
MS. BARNETT indicated she doesn't like to give quick answers -
because with their informal advice she usually tries to take a
minute to look through the law. She said, "I would say that that's
not a gift, you are having an exchange of value - you're paying for
their services, it may be at a discounted rate, but that is a
business - a contractual agreement between you and your business
and does not fall within the gift section here. That would be my
informal advice, it's not binding on the committee."
Number 0221
REPRESENTATIVE HODGINS said, for example if BP has a cleaning
person come in and you pay them a buck.
MS. BARNETT replied she's quite sure, at that point, that he would
declare that to be a gift.
REPRESENTATIVE HODGINS asked what's the difference, an employee is
an employee.
MR. BROWN asked who's paying them, BP or you.
MS. BARNETT remarked right.
REPRESENTATIVE HODGINS replied the school pays the employee - the
student.
MS. BARNETT said but you're providing a vocational educational
experience. The committee, in cases like this has had this
question posed to them and the committee's able to say yes. She
stated, "In fact the JTPA [Job Training Partnership Act] trainees -
someone came and said, 'Look, JTPA pays for a trainee, may we
accept it,' and the committee looked at the situation and said
yeah."
CHAIR JAMES mentioned she has a big problem with this, but they'll
think about it and address it later.
Number 0234
MR. BROWN explained subsection (k) (page 23, line 9). He said this
places a requirement on legislators and legislative employees -
that in receipt of a gift by a family member that is based upon
that family member's connection to you as a legislator or
legislative employee - requires disclosure under the code as if you
had received the gift. That's merely to prevent the spouses of
legislators from being bought lavish gifts as a means of going
through a loophole in the code.
CHAIR JAMES read the following:
(k) A legislator or legislative employee who knows or
reasonably should know that a family member has received a
gift because of the family member's connection with the
legislator or legislative employee shall report the receipt of
the gift by the family member to the committee
CHAIR JAMES asked for an example.
MS. BARNETT replied gifts of travel, for matters of legislative
concern, given to allow your spouse to travel with the legislator
would have to be reported. The same would hold true for gifts that
legislators or legislative employees would be prohibited from
accepting that are received by family members. So, a gift of over
$250 given to the spouse of a legislator, primarily because of the
connection to the legislator, would have to be reported.
CHAIR JAMES said she understood and asked to move on.
CHAIR JAMES announced Representative Ivan is present.
Number 0249
REPRESENTATIVE RYAN asked who makes the determination that the gift
is given because of the persons relationship with the legislator or
legislative employee.
CHAIR JAMES replied it's a perception.
MR. BROWN explained subsection (l). He said, "This merely empowers
the committee to - and mandates that the committee use fair market
value as a standard. So, again trying to prevent the loophole
saying, 'I thought the crystal vase was worth $12.50' - that's not
something that the committee wants people to feel like they have
leeway to do so - the committee's going to go ahead and you have
the fair market value standard (indisc.) means as ascertaining the
value of gifts covered by the code."
(l) In this section, the value of a gift shall be determined
by the fair market value of the gift to the extent that the
fair market value can be determined.
CHAIR JAMES expressed concern.
MR. BROWN remarked that's a questionable standard because there's
replacement costs and we discussed this in subcommittee a little.
CHAIR JAMES said she understands that they had talked about this
before, and it also depends on where the gift came and how much
they paid for it. The problem with fair market value is how much
is anybody willing to pay. For example, someone got a good deal
and bought you a simple little gift and didn't pay very much for
it, but the gift was very valuable, then you may not be able to
accept it. She stressed that doesn't seem reasonable to her. In
common law, the intent drives the system - in this case, perception
drives the system.
Number 0271
CHAIR JAMES said she believes that unless there is a complaint that
the value that ascertained on the report from the legislature that
she doesn't believe that the ethics committee, on their own, should
not accept the value that's placed on it by the legislator or the
person who's reporting. If the complaint is they have this very
valuable thing, then they might have to respond to the complaint.
But it seems to her that the best thing for legislators to do is,
in their own record, determine where they got the value.
MS. BARNETT stated you have explained exactly the way life works
with the committee.
CHAIR JAMES asked why do we have to put it in here.
MS. BARNETT replied it was added as a guidance for people so that
they don't have to call the office as often and say, "What should
we do," and our logical response is, "Go for fair market value."
CHAIR JAMES gave her trip to China as an example for fair market
value. It's eight to one in American money. If she were to use
Chinese money as opposed to American money, it would have made a
big difference and, or what she could have purchased in this
country. Chair James concluded, "That's not necessarily the fair
market value here, it's what could I buy it for in American money
there. Someone could say, 'Well, that was a lot more valuable
here,' and maybe it was. ... Fair market value is a fine way to do
it, but it seems to me like cost is better."
Number 0289
REPRESENTATIVE HODGINS asked who came up with the CS.
CHAIR JAMES replied it's the result of the subcommittee.
REPRESENTATIVE BERKOWITZ stated they reviewed it.
CHAIR JAMES further explained that the subcommittee went through
the amendments (that was brought from Senator Kelly's office), they
went through the 30 pages of suggested changes and agreed that some
of them should be put in the CS, and some should not because they
were too controversial. She indicated after the committee has gone
through version L, they will next go through the suggested
amendments, and any other amendments that this committee wants to
address.
REPRESENTATIVE RYAN suggested SB 105 be allowed to die in the House
State Affairs Standing Committee.
CHAIR JAMES didn't agree with him.
REPRESENTATIVE ELTON said he thinks we're mixing up where the real
problem may be. He believes some people have a philosophical
problem with the ethics committee and the statutes that govern it.
He indicated he views this piece of legislation as an opportunity
to make it better. If SB 105 doesn't pass, it will contribute to
a continuing grayness that the ethics committee has to deal with
all the time. So, to the extent that we look at this bill, as a
way to improve it, and to the extent that we revise this bill so
that were comfortable with the improvements, that's a good
committee function. If we do nothing, some of those areas of
grayness will remain out there.
Number 0316
MR. BROWN referred to Section 35 which prohibits acceptance of
compensation for personal services. That's meant to prevent a
professional for instance from receiving a $50,000 contract for not
doing any work for a company that has an interest in legislative
business. The problem with "not commensurate with," is it
prohibits pro bono work, that means you can't do a job and get a
lot less than the market value for it.
(a) A legislator or legislative employee may not
(1) seek or accept compensation for personal services that is
significantly greater than the value of [INVOLVES PAYMENTS
THAT ARE NOT COMMENSURATE WITH] the services rendered taking
into account the higher rates generally charged by specialists
in a profession; or
(2) accept a payment of anything of value, except for actual
and necessarily incurred travel expenses, for an appearance or
speech by the legislator or legislative employee; this
paragraph does not apply to the salary paid to a legislator or
legislative employee for making an appearance or speech as
part of the legislator's or legislative employee's normal
course of employment.
REPRESENTATIVE BERKOWITZ asked if value in this context is fair
market value.
MR. BROWN said he didn't think there is a standard here because
this deals with "giving" the services not "receiving" them. He
asked for Ms. Barnett opinion.
MS. BARNETT replied, "So, if you were an attorney who charged $200
an hour, and you said you would do it for $1 an hour. It's that
difference. It's what we're talking about."
Number 0324
REPRESENTATIVE BERKOWITZ stated, "I was thinking more of the case
where you have a nonrefundable payment to an attorney, say $2,500
to do a DWI [driving while intoxicated]. ... You know what you're
doing, and if the cards break right you can get those cases done in
a couple hours. If they don't break right, you wind up working for
significantly less than an hourly. This will enable you to do
that, basically." He concluded that it's a question of whether he
needs to return some of the money, but he would be precluded by
this ethics Act from taking that $2,500.
MS. BARNETT indicated she reads that differently. She pointed out
there are perhaps ten other attorneys who are as capable of doing
that exact scenario, and therefore in your profession you are
commensurate.
Number 0334
CHAIR JAMES said for example, "In my profession [Certified Public
Accountant, CPA], I give people monthly rates all the time, and
that's unusual in my business. Most of the people in my business
do everything by the hour, and so sometimes I spend a lot of time
on something and I don't get as much as I should, but many times I
make more than I would if I charged by the hour."
MS. BARNETT noted that she thinks on common sense, logical basis,
there would be no question. Unless you are out of the normal
range, no one, including the ethics committee is going to question
it. They haven't so far. She explained this change basically
allows you to charge less. It's all whether you're in the range of
your profession.
REPRESENTATIVE RYAN said he didn't mind anyone else setting the
price or the value of what they think their services are worth, but
he objects vehemently to some people, that he doesn't know, tell
him what they think his expertise as an expert witness is worth,
what a fair market value is, or what someone else got paid.
Number 0350
MR. BROWN moved onto Section 36, beginning on page 23 of Amendment
L. He said this deals with representation by legislators and the
unlikely eventuality of legislative employees who, in the course of
employment, represent someone else for compensation before a state
agency or board. This requires disclosure of that representation.
REPRESENTATIVE BERKOWITZ stressed, "It is very difficult as an
attorney, or as a doctor, or as a CPA, when you have clients and
you have to disclose the names of those clients simply because --
I personally chose to get involved in the public eye. Now the
parts of my life that are in the public eye should be and are
subject to public scrutiny. But when people hire my services in
the private context, they're entitled to some privacy protection.
And if they're not, then my business as a citizen legislator
(indisc. - noise). So, I don't like having to disclose names of my
clients."
MR. BROWN said he would be happy to work on that language so that
clients' names aren't being disclosed unnecessarily.
Number 0367
MS. BARNETT informed the committee Alaska is one of the few states
that allow their legislators to represent clients in front of state
agencies. One of the ways to deal with it could be to eliminate
that possibility all together, then there would be no disclosure
requirement.
REPRESENTATIVE RYAN suggested repealing the disclosure requirement.
Number 0371
MR. BROWN moved onto Section 37 of the bill. He explained this
deals with a new deadline of 15 February for disclosure of
information. Most disclosures are currently being made, this is
meant to neatly gather in one section of the ethics code - the
timing and subject matter of all the disclosures that are required.
MR. BROWN said Section 38 specifies public members of the ethics
committee don't get compensated but do get per diem and travel.
REPRESENTATIVE RYAN asked where's the fiscal note.
CHAIR JAMES explained that's already in existing law, it's part of
the budget. She then read:
Public members of the committee serve without compensation for
their services, but are entitled to per diem and travel
expenses authorized for boards and commissions
Number 0397
MR. BROWN explained Section 39 deals with alternates on the ethics
committee. If a member of the committee (indisc.) complaint, or a
staff person to a member of the committee, the presiding officer
would have to appoint an alternate and it would be quite obvious at
that point in the confidentiality of the process would have been
breached effectively. The approach would have the president and
speaker appoint alternates for each regular member...
TAPE 98-49, SIDE B
Number 0001
REPRESENTATIVE BERKOWITZ said, "As I understand it, the Speaker of
the House or the President [of the Senate] shall appoint. It
doesn't say the speaker or the minority leader - it just says, this
is just one person, one party, and I come from a background that
worries about the appearance of an impropriety."
CHAIR JAMES stated if you're going to have an alternate, you have
to have two in the House and two in the Senate, because you have to
have an alternate for the one they're replacing. She indicated
alternates would include one majority member and one a minority
member - they are standing alternates.
MR. BROWN read Section 40, line 6, page 26:
An alternate must have the same qualifications as the regular
member for whom the alternate stands as alternate and is
subject to confirmation as required for the regular member.
Number 0014
REPRESENTATIVE BERKOWITZ said there should be (indisc.) equality to
which of the alternates gets selected. He doesn't believe the
speaker or the president needs to be involved. He suggested
numbering the alternates 1, 2, 3, 4, and just rotated through them,
that way it's random.
CHAIR JAMES remarked it's hard to find somebody willing to do this,
it's not a coveted position.
MR. BROWN explained minority organizational caucus is defined, it's
very specific about the partisan representation.
REPRESENTATIVE BERKOWITZ stated he is not worried about the
composition of the committee as a whole. He said, "I'm worried
about - initially, and that concern was alleviated -- with this
alternate, I thought maybe the speaker would just reach out in the
public and grab somebody, but that's (indisc.)..."
CHAIR JAMES remarked no, it's in the legislature.
REPRESENTATIVE BERKOWITZ continued, "But the speaker does have a
pool of alternates to draw on."
MR. BROWN replied only at the beginning of session when appointing
other members though.
REPRESENTATIVE BERKOWITZ said for example, one of the members of
the committee is precluded from serving, then the speaker looks at
the pool of alternates and says, "you will be the one who's
(indisc. - interrupted)."
MR. BROWN replied, "No, no, you're appointed (indisc.), she's
appointed as your alternate. You can't serve. She automatically
serves at no discretion - she is an alternate to your seat."
Number 0030
CHAIR JAMES further explained the way it's currently set up. She
pointed out we have two minorities - one from the House and Senate,
two majorities - one from the House and Senate. If one of those
people, either the minority or the majority from the House or
Senate happens to be directly involved with a complaint, if the
complaint is against them or their staff, someone will take their
place he should have the same qualifications as they.
REPRESENTATIVE BERKOWITZ stated he understands that, it makes
perfect sense to him. But he doesn't understand why the speaker or
the president is involved in this process.
CHAIR JAMES stated it's in the original. They get appointed by the
speaker [or president] after it's been run by the caucus. She
concluded that it goes through the minority leader [or majority
leader] in all cases.
MR. BROWN noted there is a two-thirds concurrence to confirm the
membership.
Number 0055
MR. BROWN said Section 41 deals with participation in the political
process by the ethics committee members, staff, and probably more
significantly contractors to the committee. Much like the
standards that apply to the members of the Public Offices
Commission, they can't be out there raising money, having or
attending fund-raisers to the extent that we can limit their
behavior.
CHAIR JAMES asked do they also have to report to the ethics
committee.
MR. BROWN replied we require a certain amount of disclosure by the
public members. He asked Ms. Barnett what's the disclosure
requirement for contractors.
MS. BARNETT replied, "For example, if we hire a firm to do an
investigation and three of them are involved in the investigation,
not all 20 employees -- the other 17 never touch anything then no,
those employees of the contracting firm are not involved. But
those three yes, are required to act as employees and disclosure
requirements during their term of actual employment. This section
really is you're focused on the ethics committee members and yes
they are required to disclose matters and you've seen disclosures
from them in the past. When Joe Donahue's wife Helen used to work
for the legislature they both would disclose that economic
association."
Number 0073
MR. BROWN explained Section 42 deals with contracting with firms.
It enables the firm, with whom the committee's contracted, to
request that some of its employees be exempted from compliance -
we're not attempting to loop in everyone who works in that firm.
He said the corporation or partnership has to request from the
committee that a certain number of its employees be exempted. He
said, "It gives the committee the ability to exempt them, which it
doesn't technically have right now."
Number 0082
MR. BROWN said "Section 43, advisory opinions, this expands the
time frame in which the ethics committee can - and also the pool of
persons to whom it can respond - requesting advisory opinions.
This enables them to answer questions for newly-elected legislators
or persons who are going to be coming on board as legislative
staff, further out before the actual period of services of a
legislature or work as a legislative employee begins."
MR. BROWN referred to the top of page 28. Just because you asked
for an advisory opinion you don't have the right to go into an
executive session when they're deliberating about it.
REPRESENTATIVE BERKOWITZ asked does this authorize the person
requesting an advisory opinion to instruct the committee to go
beyond 60 days. For example, he can ask for an opinion and say,
"But I don't want it for another three months."
MR. BROWN replied it reads "the committee shall issue an advisory
opinion within 60 days."
Number 0098
MS. BARNETT said we've asked about this and the law doesn't seem to
preclude it that if we write a letter back to the requester saying,
"We will not be able to hold a meeting for 65 days, would you waive
that 60-day requirement." And if the requester says yes, then the
committee is empowered to do that because it's the requester who
needs the information and who perhaps needs it on a shorter time
line.
If it finds that it is advisable to do so, the committee may
issue an opinion under this section on the request of a person
who reasonably expects to become subject to this chapter
within the next 45 days. The 60-day [30-DAY] period for
issuing an opinion may be extended by the committee if the
person requesting the opinion consents.
CHAIR JAMES asked what if they say no.
MS. BARNETT replied then we would have to hold a teleconference and
get on it.
Number 0107
MR. BROWN explained Section 44, page 28, deals with the issue of
complaints that are not resolved but go away due to the resignation
or termination of someone's public service or employment. He said
that created a loophole - it would be possible to quit your job and
come back, and the committee's jurisdiction over you would have
expired with your employment. This deals with a situation of a
legislator who was subject of an ethics complaint - coming back as
working as a staffer - which we've had in the past few years. In
that case the person had not complied with the provisions of an
(indisc.) complaint against him by the committee. But there's
nothing the committee could do.
REPRESENTATIVE BERKOWITZ stated a legislator, subject of an
investigation, could resign and then be exempted, and then run
again.
MR. BROWN replied the committee would be able within five years
[statute of limitations] to bring the charges back up as soon as
that person was again covered by the code.
CHAIR JAMES asked what if they leave the legislature and go to work
for the administration.
MR. BROWN replied we don't have cross referencing between executive
branch ethics and legislative ethics.
CHAIR JAMES suggested both directions - "If there's someone that
has an unresolved ethics problem in the administration, leaving and
coming to work for the legislature or vice versa." She asked Mr.
Brown to think about that.
Number 0133
MR. BROWN explained Section 45 deals with the procedures for
complaints. Currently there is a very loose standard to which
complainants are held when they make their allegations. This
formalizes the process a little bit more so complainants know that
they have to state that they have reason to believe that the
violation occurred and they have to put the facts that they believe
that in there.
(b) A complaint may be initiated by any person. The complaint
must be in writing and signed under oath by the person making
the complaint and must contain a statement that the
complainant has reason to believe that a violation of this
chapter has occurred and describe any facts known to the
complainant to support that belief.
MR. BROWN noted the committee will warn the complainant they may be
required to come forward and speak to the complaint they're making.
Upon receiving a complaint, the committee shall advise the
complainant that the committee or the subject of the complaint
may ask the complainant to testify at any stage of the
proceeding as to the complainant's belief that the subject of
the complaint has violated this chapter.
REPRESENTATIVE RYAN said he is going to make an amendment to this
particular chapter that substantially says, "If you bring forth the
complaint and it can't be substantiated, you're subject to civil
penalties. ... You can make all the potshots you want, but if you
can't substantiate them, you're going to pay."
Number 0148
MR. BROWN mentioned the committee is empowered to return complaints
that are frivolous without investigating them.
CHAIR JAMES asked Ms. Barnett what kind of measurement would you
use to determine whether a complaint was frivolous.
MS. BARNETT reported the committee isn't empowered to do that and
the changes in the law will help them. They would like your
assistance in being allowed to return frivolous complaints and not
have to waste time and energy on them and without having to convene
an entire subcommittee. She concluded that currently they aren't
allowed to and this bill would allow them to.
CHAIR JAMES asked does this section give you enough information to
support your decision that it is in fact a frivolous case.
MS. BARNETT suggested she look at Section 46.
CHAIR JAMES replied that's what she's looking at.
Number 0163
MS. BARNETT said, "Yes, I guess, were you looking for specifics.
The one I always use, if somebody writes in and says that, files a
complaint against Representative James because they don't like the
way Representative James drives her car, the committee still has to
go through a procedure (to get together and look at it and say),
'Do we have jurisdiction over this.' ... I'd be able to, or the
staff person, at the preliminary examination level would be able to
say, 'No this is ridiculous, bye, bye,' and not convene a meeting,
not spend a nickel."
CHAIR JAMES stated she would say that example falls outside of her
scope. If they do file a complaint, and the story they gave was an
ethics violation, what if they don't supply any support or proof
that they're on target.
MS. BARNETT replied she believes the committee has, and always
should, investigate those types of allegations because the public
has a right to those types of actions, but also investigation often
ends up saying no, and you are then protected as a legislator. She
said, "And we are able to go through and say no there's no evidence
to your allegation."
CHAIR JAMES asked Ms. Barnett if she understands Representative
Ryan's concern. If people can file a complaint, and cause stress
for somebody, and they make a false claim that doesn't have any
validity at all, that there should be some penalty for doing that -
without cause.
Number 0180
MS. BARNETT noted they like this change that they would have to
sign agreeing to this, but currently they can't require them to use
the complaint form. However, there is a law on the books
11.56.805, under the Criminal Code that says that they cannot
knowingly or intentionally initiate a false complaint. Today you
are still protected by that. Anyone can tell you in this process,
whether it's the Human Rights Commission, all these kinds of things
where complaints are filed against another person - and on the
judicial side - it is difficult to prove, knowingly or
intentionally initiates a false complaint. It is a standard and it
exists.
CHAIR JAMES asked, they do or do not have to use that form.
MS. BARNETT replied currently they do not have to, however, they do
try to get people to use this form. There's nothing in the code
that requires them to do that. She said, "We like them to sign
saying, 'I acknowledge I read that.' If they don't then, as a
staff person, I call them and I say -- we're not trying to tell the
public to be afraid to file a complaint. That's the goal, I don't
believe, the legislature, but we do want them to be informed. And
so I do tell them, I reference that law when they file a complaint,
if they haven't filed on the proper form."
CHAIR JAMES asked could we require them to put their complaint on
this particular form in this bill.
Number 0193
MS. BARNETT responded Section 45 requires that they sign the
statement.
MR. BROWN added that it's not a form, but they do have to have a
statement that the complainant has reason to believe that a
violation of this chapter has occurred and describe any facts known
to the complainant to support that belief.
MS. BARNETT explained that the form has to be notarized, the notary
requirement is covered in another section of the bill.
CHAIR JAMES asked if they signed because they had reason to
believe, and made up the whole thing, then what is the recourse
besides filing a civil suit against them for defamation of
character.
MS. BARNETT replied that is your recourse.
MR. BROWN added and the Title 11 reference you just gave us as
well.
MS. BARNETT said she thinks they can include something in the bill
that says "the form, people will sign it and it will read this."
Number 0206
CHAIR JAMES indicated they will work on that. The reason she asked
was because the State Affairs Committee just had a bill in
committee on the Human Rights Commission and they don't have enough
money to research all of the cases that they have so it's taking
them a long time to get things done. Chair James said, "They gave
us a percentage of 62 percent of the claims that come to them are
unfounded. And I certainly support - the idea is that the public
has the right to do everything that they want, but somehow or
another we have to balance that with the rights of the others. And
I'm not sure that the 62 percent of the claims being not founded is
reality. And I don't know what your rate of frivolousness would
be. But in this case, I guess you don't have that information
because you haven't been able to determine if any were frivolous."
REPRESENTATIVE RYAN indicated the prosecutors are plea-bargaining
cases - murder, rape, burglary, and so forth. He said he doesn't
think anyone will have much luck with a prosecutor on Title 11 on
trying to get them to do anything about a complaint. He believes
the committee needs to be creative in coming up with a penalty that
will give the person who is accused as much satisfaction on being
found innocent, as the person who accuses them on them being found
guilty.
CHAIR JAMES said it seems to her that the purpose ought to be as a
deterrent more than it is a penalty. If there is a fear of a
penalty out there, some people won't file a complaint. She
indicated she would be more interested in the deterrent than she
would be the actual penalty.
REPRESENTATIVE RYAN added that part of the Division of Family and
Youth Services' (DFYS) backlog that we have, they admit that
approximately 50 percent of those are punitive - one parent wanting
to get at the other files a complaint, and DFYS does nothing to
them, they're groundless. He indicated that's quite rampant
throughout the whole government.
Number 0226
MR. BROWN explained Section 46 enables the ethics committee staff
to return complaints for being frivolous and it's not wasting the
committee's time.
CHAIR JAMES mentioned that's one of the best parts of this bill.
MR. BROWN stated the existing language of Section 47 deals with
dismissal of complaints if there's not justification for their
consideration. The committee would like to add:
Committee deliberations and vote on the dismissal order and
decision are not open to the public or to the subject of the
complaint.
MR. BROWN said, "That's to preserve the committee's ability to have
a candid, full and open debate about why to dismiss the complaint."
REPRESENTATIVE RYAN stressed that if he is the subject of a
complaint, he has every right under the Alaska Constitution and
United States Constitution to know what the disposition of that
complaint is.
MR. BROWN replied you will know what it is, but the ethics
committee don't want you to be there while they're voting to
dismiss the case.
Number 0244
CHAIR JAMES said she understands what Representative Ryan is
talking about. She explained if there is a complaint against him,
and the committee is going into an executive session, and they're
going to determine that they're going to dismiss the case against
Representative Ryan, this says he can't know what happened in that
meeting at all - he probably knows that it's going to be dismissed
because he's going to get a comment on that. He wants to know how
the people voted, he wants to know who supported not dropping it
and who supported dropping it. And this says he doesn't have a
right to know that, that's his concern.
MS. BARNETT replied, "In response to Representative Ryan's
question, Representative James earlier made a statement that it's
very difficult to get people to serve on the ethics committee. I
can tell you, if votes have to be recorded, I don't think any of
you will ever want to serve on this committee because when you like
your bill to get passed through somebody's committee that you have
been recorded as voting, yes you found probable cause, that there
was evidence of violation of the code. I mean you're in this
political arena. And the committee talked about this at great
lengths. It's not the public members who we're concerned about.
They are very bold public members and willing to put their names on
the line. It's to protect their representatives and senators who
are willing to serve with them on the committee. They felt very
strongly that votes should not be recorded in public."
Number 0257
REPRESENTATIVE JERRY SANDERS asked if there are provisions in SB
105 for an appeal if the staff determines a complaint to be
frivolous.
MR. BROWN replied at this point he doesn't see the possibility for
appeal in the proposed language in Section 46. He indicated the
one who would suffer is the complainant.
MS. BARNETT said she believes that if someone wrote to the chair of
the ethics committee and said, "This complaint was dismissed by a
staff person, I object," the chair would probably immediately take
it up, but in fact there's nothing here that either says that can
or can't happen.
REPRESENTATIVE RYAN reiterated he is privy to that information
because his character and his reputation is on the line.
MR. BROWN concluded that this is an early stage, and likely results
of these secret deliberations is going to be dismissals of
complaints.
Number 0284
MR. BROWN explained Section 48 deals with the committee's authority
to revisit charges that they thought they had dismissed or disposed
of through coming to an agreement for corrective action with the
subject of a complaint. He said the ethics committee feels like
the current code doesn't provide them with that ability and it
creates a loophole - where you can agree to a corrective action and
then not take it and you're off the hook.
MS. BARNETT further explained it empowers the legislature to
enforce its sanctions and corrective action and provides the
committee a route to do that.
Number 0292
MR. BROWN pointed out Section 49 refers back to Section 48 that if
the ethics committee decides to charge a person, it's just a
conforming reference to the procedure when there's not compliance.
Number 0293
MR. BROWN explained Section 50, almost halfway through, deals with
the discovery procedures that apply to proceedings under the ethics
code. This enables -- the reference to the rule of civil procedure
is still there, but it also allows the committee to adopt discovery
procedures that enable earlier discovery by the subject to the
benefit of that person and it also allows the committee to restrict
the release of information - to prevent uneven gag-orders
basically. Mr. Brown said, "The committee wants to tell the
subject, that he or she can't speak about things that come up in
the course of discovery, they have to (indisc.) the same
restrictions on the complainant unless both agree, the gag-order
basically can't be enforced." He noted the latter part didn't come
from the ethics committee, but he doesn't think it's something the
committee has a strong objection to."
(i) A person charged under (h) [(b)] of this section may
engage in discovery in a manner consistent with the Alaska
Rules of Civil Procedure. The committee many adopt procedures
that
(1) impose reasonable restrictions on the time for this
discovery and on the materials that may be discovered;
(2) permit a person who is the subject of a complaint to
engage in discovery at an earlier stage of the proceedings;
(3) impose reasonable restrictions on the release of
information that the subject of a complaint acquires from the
committee in the course of discovery, or on information
obtained by use of the committee's authority, in order to
protect the privacy of persons not under investigation to whom
the information pertains; however, the committee may not
impose restrictions on the release of information by the
subject of the complaint unless the complainant has agreed to
be bound by similar restrictions and has not made public the
information contained in the complaint, information about the
complaint, or the fact of filing the complaint.
MS. BARNETT indicated individual members of the committee do have
a problem with it because they have absolutely no control over the
complainant. She said the complainant does not receive discovery
information - period. It's not accessible to them. So it's an odd
piece of language and we don't have any control over it.
MS. BARNETT stressed that the restrictions on discovery are to
protect the legislator. She said, "I know this sounds odd, but
complaints are often filed - or can be filed against more than one
legislator in a complaint. And a case may even involve more than
one legislator and it's not okay for one legislator to release
everything at the expense of another one, or an employee involved.
So think of it in those terms."
REPRESENTATIVE RYAN indicated the committee spent an awful lot of
money substantiating a case last year on whatever process they went
through. He stated, "And anything that the person, about whom the
complaint was made, had to do in their defense had to be out of
pocket. And I don't see that that at all is fair. ... That because
somebody made a complaint I have to reach in my pocket and to spend
that when the committee can take public funds, and use whatever it
seems to use, to substantiate its form of the complaint, there
seems to be a basic unfairness here."
Number 0316
CHAIR JAMES asked does that mean they're going to be able to get
discovery on their own, early on, and present it to the committee.
Or does that mean that they get to share the information of the
discovery that the committee has found.
MS. BARNETT read "The committee may adopt procedures that." She
explained you're empowering your committee to adopt procedures that
say, "Okay we want to be able to share discovery earlier." She
said there are references in here as to when discovery can be
allowed and the committee at times has felt like they would be
happy to provide discovery but the proceedings wouldn't allow it.
So that's what we're doing in this section.
CHAIR JAMES said she certainly understands that. Chair James
indicated when you're pursuing a case like this, that maybe some of
the first discovery that you get, which appears to be one way is
really not that way, and so there would be an opportunity for the
subject of the complaint to rebut earlier. She asked what other
reason would you want the person, who is the subject of the
complaint to have privileged information of the discovery until you
received all of the discovery.
MS. BARNETT stated, in a logical manner, the only reason you would
want to avoid providing discovery -- is if you have incomplete
information. If you depose someone and you get a reference to
something and perhaps you would like to then find out what that
reference is and follow it up, generally that's about the only time
where you have "fiery" information that's incomplete.
Number 0335
CHAIR JAMES asked what kind of an opportunity does the complainant
have to be engaged in discovery.
MS. BARNETT replied the complainant is not involved in the
discovery process.
CHAIR JAMES asked do they have knowledge of the discovery as it
proceeds.
MS. BARNETT explained the committee process. She said when a
complainant files a complaint, this is what they get. They file
the complaint, they get a letter saying thank you, we've received
your complaint. If the committee finds they have jurisdiction,
they adopt a resolution outlining the scope of the investigation
and the complainant gets a copy of that. If the committee goes to
investigation, the complainant gets interviewed during the
investigation. Many, many times the complainant has no first-hand
knowledge. So there's not an in-depth interview. Then the
complainant gets a copy of the decision at the end of the
deliberation.
CHAIR JAMES said she didn't understand the conversation on the gag-
order on the subject as well as the complainant.
MS. BARNETT remarked she agrees. She noted she is not speaking on
behalf of the ethics committee, but "On a personal note, I would
recommend deleting that section because it is confusing and it does
lead - I believe if I was the subject of a complaint all of a
sudden I would be concerned. I would be reading this and think Oh
My God, the complainant gets discovery."
Number 0348
MR. BROWN said, "I think what Senator Donley wanted to accomplish
here is to prevent the subject of the complaints from being gagged
by the committee. When complainants, even though they're not
involved in a discovery process, are in fact running around to the
media saying, 'I know so and so did this, the committee's
investigating it right now.' It's an almost impossible problem to
try to solve and a rather clumsy effort to do so that's in this
language here. But it's a worthy goal that he had. Suzie's right,
it's not very enforceable. There's just next to nothing the ethics
committee's ever going to be able to do to control complainants'
behavior."
CHAIR JAMES mentioned she had made a note to talk to Senator Donley
on this.
Number 0355
REPRESENTATIVE RYAN asked if the ethics committee is taking
depositions, does he have to hire an attorney and have them take
depositions to protect himself. If so, who bears the cost of that.
If the committee wants to go through all this investigation, he
thinks they should have a fiscal note that allows the person
subject to the complaint to have the same investigative process the
committee has to protect themselves and the state will pick up the
ticket, he thinks it's only fair.
UNIDENTIFIED SPEAKER remarked if he's exonerated.
REPRESENTATIVE RYAN added we provide a public defender for people
who don't get exonerated, and we pay a tremendous amount paying for
these people's defense.
MS. BARNETT stressed most of the cases you would find are resolved
long before the committee gets to anything that looks and sounds
like a deposition. In their series of stages you will see that,
when they get to the formal changes in a public hearing and, as you
recall the first one, under the new law, the committee had with
Senator Jacko. She said, "Those were the kinds of that level of
involvement in a quasi judicial setting. Yes, we're at depositions
at that point, but most of the cases are resolved in a different
manner under corrective actions."
Number 0374
MR. BROWN explained Section 51 deals with the confidentiality of
proceedings before the stage of probable cause has been reached.
He noted this is existing language for the most part until you get
to the top of page 32. Because we duplicate some of the language
in the Executive Branch Ethics Code - the part about transmission
of information about criminal wrongdoing or violations of the
Campaign Finance Act - it's kind of a streamlined mechanism. If
the committee finds something that is really criminal or that it's
blatantly inconsistent with the way campaigns are supposed to be
financed, it has to just transfer that information over to the
appropriate jurisdictional authority - though it can continue with
its own ethics investigation.
MR. BROWN stated the change on top of page 32 specifies that
legislators, who aren't members of the committee, can't just decide
to go sit in on deliberations before the probable cause stage has
been reached - that is to address the problem Ms. Barnett spoke of
a little while ago.
REPRESENTATIVE BERKOWITZ mentioned he spends a lot of time in court
rooms looking at people and accusing them of crimes. The Sixth
Amendment is pretty clear to him that you should have the right to
confront your accusers.
MR. BROWN responded these aren't your accusers - the ethics
committee isn't your accuser. He mentioned he didn't know in
common law if there is much precedence for having the opportunity
to confirm the person who's hearing your case, he's also a member
of the same body you're a member of. He thinks there are a lot of
things here that are just always going to be different, this is not
really a judicial creature, it's a committee of the legislature.
Number 0393
REPRESENTATIVE BERKOWITZ stated, "Subsequent to the determination
of probable cause is the subject entitled to be present at all."
MS. BARNETT said, "First let me just remind you that we're at the
point where the committee is serving as the jury and having the
subject in the jury room is something inconceivable to almost
anyone involved in the process. During the deliberation when the
jury goes out and goes into their room on the side, and that's
what's happening is that they're acting in their jury capacity.
Otherwise the subject of a complaint is told that they have access
to the committee, but not during deliberations and they may request
it at any time. And we have had subjects come in and meet with the
committee, subjects write to the committee, subjects ask me to say
something to the committee - they have access."
REPRESENTATIVE BERKOWITZ repeated "Subsequent to the determination
of probable cause." He said he just wanted to ensure that the
subject of the investigation is entitled to be present at all fact
finding stages of the proceedings.
Number 0405
MS. BARNETT stated, "As long as you are not including..."
TAPE 98-50, SIDE A
Number 0001
REPRESENTATIVE RYAN said, "... And there was no responsibility on
the part of the people who brought forth the accusations, or
whatever. In fact they profited quite a bit because the person's
goods were confiscated as a fine. And then when they were finally
determined to be guilty, another fine was imposed and their
relatives were sold into slavery to pay that fine. It's an old
tradition, it (indisc.) Roman Catholic Church, it's well
established in history. And bringing it forth and codifying it in
Alaska law - I'm not too sure if we really want to do that.
English common law says you look your accuser in the eye."
Number 0017
REPRESENTATIVE BERKOWITZ said he had the initial concern that
Representative Ryan does. But, as he understands it, we're in a
situation here where anytime the accuser is presenting evidence,
subsequent to the determination that a proceeding will occur, you
do have the right to be present. This is akin to - in a criminal
proceeding the defendant is not allowed to be present during jury
deliberations, which everyone understands is acceptable, and the
defendant is not required to be present during the determination of
probable cause in front of a grand jury, although a defendant can
present testimony to a grand jury. Representative Berkowitz stated
he believes a probable cause determination here - would the subject
have the opportunity to present testimony or present evidence.
MS. BARNETT replied the subject always has the opportunity to
present evidence and is in fact encouraged to do so in a variety of
ways. She said, "However, I did misspeak - what this bill allows
is the committee may permit the subject of the complaint to attend
a meeting. So it empowers - at the moment - the committee was
unsure whether they actually could allow the subject of the
complaint to attend their executive sessions. This is allowing the
committee to do so."
REPRESENTATIVE BERKOWITZ stated, "So this opens it up over..."
CHAIR JAMES interjected with exceptions to the deliberations and
the vote.
MS. BARNETT replied correct.
MR. BROWN explained the final provision in Section 51 allows you to
waive the confidentiality provisions. If you are a co-subject of
a complaint, you can't waive somebody else's confidentiality
provisions. You can only waive your own confidentiality provisions
here.
The confidentiality provisions of this subsection may be
waived by the subject of the complaint, except that the
subject of the complaint may not waive the confidentiality
duty the committee owes to others and may not require the
committee to deliberate in public.
Number 0075
MR. BROWN explained Section 52 deals with the options available to
the committee as punishment, it mandates that there be a timetable
for compliance if there are certain steps in compliance, which is
meant to protect the subject. And it testifies that it may include
fines, but fines have to be imposed by the legislature - they can't
be imposed by the committee.
MS. BARNETT added that sanctions are imposed by the appropriate
body of the House, or the Senate, or the appointing authority.
We're talking about something, in the next few sections where the
committee recommends putting into language, but the legislature
holds the final power on all sanctions.
Number 100
MR. BROWN explained Section 53 deals with the time line reporting
and the committee's ability to recommend further sanctions to the
legislature if the committee doesn't feel that compliance has been
met by the subject. For example, when the committee recommends
something and that recommendation is followed by the appropriate
house of the legislature, the committee will be notified - okay the
House and Senate went ahead and did what you said we should do.
The subject then has the responsibility of keeping the committee
informed, not the whole body, of whether or not they're doing what
they were told to do. If they don't meet the time line, then the
committee has the responsibility to decide - well, we need to tell
the House or the Senate that Representative X or Senator Y didn't
do what the legislature told him to do. It's the committee's
responsibility to go back and say - well, the legislature told
Representative X to do this, and he didn't, and therefore we're
back to you again notifying you of that fact.
MR. BROWN explained Section 54 is where the subject is a
legislative employee, appointing authorities are told what they
will do in response to the committee's findings to punish the
person. He said this actually expands the appointing authority's
ability to impose a different sanction, but it mandates that the
appointing authority shall impose a sanction and again puts into
statute the need for some timeliness to the compliance which
doesn't exist right now.
REPRESENTATIVE RYAN asked is the appointing authority the person
who hires this legislative employee.
MR. BROWN replied we get to that in the next section (Section 55)
of the bill, it specifies very clearly who the appointing authority
is for everyone, because that is also a gray area of the current
code.
Number 0151
MR. BROWN referred to Section 55, he said it's very easy with
personal staff to figure out who the appointing authority is, but
for committee staff, or employees to the Legislative Affairs
Agency, it's not as clear.
MR. BROWN read the list for the appointing authorities: (1)
Legislative Council - Legislative Affairs Agency and anyone else
whose floating out there, (2) Legislative Budget and Audit
Committee - the fiscal analyst and everyone at the Division of
Legislative Finance and Legislative Audit, including the
Legislative and Budget and Audit Committees, (3) appropriate
Finance Committees for the House and Senate Finance staff, (4)
appropriate Rules Committee - for standing committees, and staff in
the Chief Clerk and Senate Secretary's Offices, (5) is where most
staffs are going to come. The legislator is given an out here, if
you don't want to be the appointing authority for your staff
because you're afraid that it's going to look like your not
imposing the sanction recommended by the committee, you have the
option of having the Rules Committee to do that for you - so it's
impartial as possible, (6) Ombudsman - employees, and (7) the
Ombudsman himself - the legislature.
CHAIR JAMES asked what if a member of the ethics committee is
unethical.
MR. BROWN replied the appointing authority would seem to be the
speaker or the president.
MS. BARNETT said because they would be considered joint employees
they would go before Legislative Council.
MR. BROWN indicated anyone else, whose floating around there, we'll
let Legislative Council be the appointing authority for.
Number 0196
MR. BROWN explained Section 56 is a new section, it lists several
options that are available to the ethics committee. He indicated
right now there isn't a real limit on what the committee can try to
impose. This gives people the idea of what might happen if they
violate the code. It's been the duty of this committee to come up
with appropriate penalties, some of those things that have been
used in cases over the past few years appear in this list.
MS. BARNETT stated these are only recommendations to the
legislature and the committee is not stuck with them. Most of all
it's recommendations to the legislature and the legislature, when
it gets a list of ten recommended sanctions, it can pick (1), (3)
and (7) and dump the rest, or it can create a whole new list.
REPRESENTATIVE BERKOWITZ said as he understands it, based on some
of the prior sections, if there's a sanction imposed on one of his
employees, he could reduce it.
MS. BARNETT replied no. She referred to page 33, lines 9 [8] and
10:
The appointing authority shall enforce the sanction and shall
report to the committee at a time specified by the committee
concerning the employee's compliance with the sanction.
MS. BARNETT explained you have the ability to impose a sanction
recommended by the committee, or impose a different (indisc. -
noise), but you shall enforce the sanction.
Number 0249
REPRESENTATIVE BERKOWITZ stated, "If you say, for example this is
a $500 fine, I can say no, it's a $100 fine, that's a different
sanction, but I can enforce it still."
MS. BARNETT replied correct, because again in that upper language
it says:
The appointing authority shall assume the validity of the
committee's findings and determine and impose the appropriate
sanctions.
MS. BARNETT added, "You don't get to debate, guilt or innocence, or
finding a probable cause. That's not yours to determine, but you
get to determine and oppose the appropriate sanction."
REPRESENTATIVE BERKOWITZ said for example you oppose a $5,000 fine
required divestiture. He can say, "Well, no divestiture, and $1.00
token fine."
MS. BARNETT replied that's correct.
REPRESENTATIVE BERKOWITZ stated, "So I can essentially, as a
legislator, gut what the committee does."
MS. BARNETT responded that is the bottom line of everything to do
with the ethics committee, the legislature and an individual
legislator hold the power.
REPRESENTATIVE BERKOWITZ said he has enough confidence in his staff
not to worry that they'll run afoul. But he would imagine that
there could be circumstances where this kind of power could be
readily abused. There is a distinction between allowing an
individual legislator to be the final arbitrator, and allowing the
legislature as a whole to go through its various (indisc.) to
dispense this justice. The pressure on an individual legislator,
particularly where staff is concerned could be relatively enormous.
You don't have a judge handing down sentences against her son or
her employee, it's inconceivable to him that you can be in that
sort of situation.
CHAIR JAMES stated we can give it to the Rules Chairman.
REPRESENTATIVE BERKOWITZ responded even the act of giving it to the
Rules Chairman shows - you're caught on the horns of a dilemma.
Either you comply with the sanctions, and you do what's
recommended, or you do the loyal thing - which is to protect your
staff even from their own folly - and get hammered. He believes
the legislature should be taken out of the loop as far as
administering punishment to his or her own staff.
CHAIR JAMES asked who would he suggest do it.
REPRESENTATIVE BERKOWITZ replied the legislature as a whole.
MR. BROWN said he thinks the legislature might find that unwieldy.
CHAIR JAMES suggested the Legislative Council.
MR. BROWN replied maybe it could be the Legislative Council. Right
now it's the appointing authority but there's no clear definition
of who the appointing authority is.
Number 0300
CHAIR JAMES stated she agrees with Representative Berkowitz, she
also believes it should be Legislative Council in all cases.
MS. BARNETT referred to page 33, subsection (b):
(5) the legislator who made the hiring decision for employees
of individual legislators; however, the legislator may request
the appropriate rules committee to act in the legislator's
stead;
MS. BARNETT explained she believes the committee, when they created
the ethics bill, had actually said the appropriate Rules Committee
as opposed to Legislative Council because you have the protocol
that says, "House members won't do business over in the Senate side
and Senate members won't do business on the House side." They
originally thought it was better not to have the legislator in for
the reasons as stated by Representative Berkowitz and had
recommended the appropriate Rules Committee and felt comfortable
with that. It changed over the years but she thinks the
legislature would prefer the Rules Committee versus Legislative
Council.
CHAIR JAMES said they ought to have an authority instead of
spreading it out and causing a lot more distress. She asked how it
changed over the years. Was that statutory changes?
Number 0324
MS. BARNETT replied no, just in the bill itself. The reason is
because some of the legislators said, "Darn it, we hired the guy
and we want to deal with him."
CHAIR JAMES suggested they earmark that section, they will begin on
Section 57 on Thursday. She announced they will also be hearing HB
330 and HB 257 before they go into SB 105.
ADJOURNMENT
Number 0381
CHAIR JAMES adjourned the House State Affairs Standing Committee at
10:00 a.m.
| Document Name | Date/Time | Subjects |
|---|