02/01/2011 08:00 AM House STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| HJR13 | |
| HB3 | |
| HB14 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HJR 13 | TELECONFERENCED | |
| += | HB 3 | TELECONFERENCED | |
| += | HB 14 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE STATE AFFAIRS STANDING COMMITTEE
February 1, 2011
8:08 a.m.
MEMBERS PRESENT
Representative Bob Lynn, Chair
Representative Wes Keller, Vice Chair
Representative Paul Seaton
Representative Peggy Wilson
Representative Max Gruenberg
Representative Pete Petersen
Representative Kyle Johansen
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE JOINT RESOLUTION NO. 13
Honoring President Reagan on the 100th anniversary of his birth.
- MOVED HJR 13 OUT OF COMMITTEE
HOUSE BILL NO. 3
"An Act relating to issuance of driver's licenses."
- MOVED CSHB 3(STA) OUT OF COMMITTEE
HOUSE BILL NO. 14
"An Act authorizing state agencies to pay private legal fees and
costs incurred by persons exonerated of alleged Alaska Executive
Branch Ethics Act violations; allowing certain public officers
and former public officers to accept state payments to offset
private legal fees and costs related to defending against an
Alaska Executive Branch Ethics Act complaint; and creating
certain exceptions to Alaska Executive Branch Ethics Act
limitations on the use of state resources to provide or pay for
transportation of spouses and children of the governor and the
lieutenant governor."
- MOVED OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HJR 13
SHORT TITLE: HONORING RONALD REAGAN
SPONSOR(s): REPRESENTATIVE(s) STOLTZE
01/21/11 (H) READ THE FIRST TIME - REFERRALS
01/21/11 (H) STA
02/01/11 (H) STA AT 8:00 AM CAPITOL 106
BILL: HB 3
SHORT TITLE: REQUIREMENTS FOR DRIVER'S LICENSE
SPONSOR(s): REPRESENTATIVE(s) LYNN, HAWKER, CHENAULT, JOHNSON,
GATTO
01/18/11 (H) PREFILE RELEASED 1/7/11
01/18/11 (H) READ THE FIRST TIME - REFERRALS
01/18/11 (H) STA, FIN
01/27/11 (H) STA AT 8:00 AM CAPITOL 106
01/27/11 (H) Heard & Held
01/27/11 (H) MINUTE(STA)
02/01/11 (H) STA AT 8:00 AM CAPITOL 106
BILL: HB 14
SHORT TITLE: EXEC ETHICS: LEGAL FEES/FAMILY TRAVEL
SPONSOR(s): REPRESENTATIVE(s) GRUENBERG
01/18/11 (H) PREFILE RELEASED 1/7/11
01/18/11 (H) READ THE FIRST TIME - REFERRALS
01/18/11 (H) STA, JUD, FIN
01/25/11 (H) STA AT 8:00 AM CAPITOL 106
01/25/11 (H) Heard & Held
01/25/11 (H) MINUTE(STA)
02/01/11 (H) STA AT 8:00 AM CAPITOL 106
WITNESS REGISTER
REPRESENTATIVE BILL STOLTZE
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HJR 13 as sponsor.
THOMAS REIKER, Staff
Representative Bob Lynn
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Provided an update on HB 3 since its last
hearing, on behalf of Representative Lynn, sponsor.
GERALD LUCKHAUPT, Assistant Revisor of Statutes
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency (LAA)
Juneau, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
3.
ERLING JOHANSEN, Assistant Attorney General
Labor & State Affairs Section
Civil Division (Anchorage)
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Answered a question during the hearing on
HB 3.
WHITNEY BREWSTER, Director
Division of Motor Vehicles (DMV)
Department of Administration
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
3.
JEFFREY MITTMAN, Executive Director
American Civil Liberties Union (ACLU) of Alaska
Anchorage, Alaska
POSITION STATEMENT: Testified during the hearing on HB 3.
MARA KIMMEL
Alaska Immigration Justice Project
Anchorage, Alaska
POSITION STATEMENT: Testified during the hearing on HB 3.
JUDY BOCKMON, Assistant Attorney General/State Ethics Attorney
Opinions, Appeals, & Ethics
Civil Division (Anchorage)
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
14.
ACTION NARRATIVE
8:08:56 AM
CHAIR BOB LYNN called the House State Affairs Standing Committee
meeting to order at 8:08 a.m. Representatives Keller, Seaton,
Wilson, Johansen, Petersen, and Lynn were present at the call to
order. Representative Gruenberg arrived as the meeting was in
progress.
HJR 13-HONORING RONALD REAGAN
CHAIR LYNN announced that the first order of business was HOUSE
JOINT RESOLUTION NO. 13, Honoring President Reagan on the 100th
anniversary of his birth.
8:09:25 AM
REPRESENTATIVE BILL STOLTZE, Alaska State Legislature, presented
HJR 13 as sponsor. He said HJR 13 is a resolution that
recognizes the one-hundredth anniversary of President Ronald
Reagan's birth. He referred to information in the committee
packet that highlights some of the former president's
accomplishments [from the second paragraph of the sponsor
statement, which read as follows, original punctuation
provided]:
In addition to his successful acting career, his
leadership as the head of a labor union, his
accomplishments as an elected official, both as
Governor of California and President of the United
States, Reagan was involved in several Alaska-specific
initiatives and events, which this resolution
recognizes. These include advocating for limited
federal control of Alaska's land; signing into law the
transfer of the Alaska Railroad from the federal
government to the State of Alaska; meeting with Pope
John Paul II in Fairbanks; and signing legislation to
authorize reparation payments to Aleuts who had been
relocated during the Second World War.
REPRESENTATIVE STOLTZE said the resolution would not cost the
state anything.
8:11:47 AM
REPRESENTATIVE SEATON said the information provided by the
sponsor was educational and well compiled, and he observed that
there were a number of things President Reagan did that were
beneficial to Alaska. He indicated that he had not previously
been aware of some of this information.
REPRESENTATIVE STOLTZE credited his staff member, Darrell
Breese, for doing that research.
8:12:30 AM
REPRESENTATIVE P. WILSON expressed her appreciation of the
resolution, and said she remembers when President Reagan served
in office people said one day he would be remembered as one of
the nation's best Presidents. She echoed Representative
Seaton's comment about having learned new information, and she
opined that President Reagan did a lot for the country.
8:13:20 AM
CHAIR LYNN stated his support of the resolution and his
appreciation of President Reagan.
8:14:41 AM
REPRESENTATIVE JOHANSEN expressed appreciation for the work of
President Reagan, not only as President, but as a candidate for
Governor of California during a contentious time in the 1960s.
He applauded the introduction of the legislation.
8:15:30 AM
REPRESENTATIVE GRUENBERG stated that sometimes it takes some
time for great presidents to be recognized.
8:15:47 AM
CHAIR LYNN closed [public testimony].
8:15:55 AM
REPRESENTATIVE P. WILSON, with the permission of the chair, read
onto the record [language from page 2, lines 14-28, of the
proposed resolution], which credits President Reagan for having
done the following for Alaska: advocating the limitation of
federal control over Alaska's land and natural resources; in
1983, signing into law the Alaska Railroad Transfer;
transferring ownership of the Alaska Railroad to the state; in
1984, meeting with Pope John Paul II in Fairbanks to discuss
pressing world issues; signing legislation that authorized the
payment of reparations to the Aleuts who had been displaced from
their homes and sent to internment camps during World War II;
supporting the Village Built Clinic Program, which funded Indian
Health Service clinics in Alaska Native villages throughout the
state; bringing basic health care to many Alaskans; and
authorizing the establishment of the federal government 8(a)
Business Development Program, which brought economic development
and benefits to Alaska Native Corporations.
8:17:24 AM
REPRESENTATIVE STOLTZE remarked upon Ted Stevens' involvement
during this time period.
8:17:51 AM
REPRESENTATIVE KELLER moved to report HJR 13 out of committee
with individual recommendations and the accompanying fiscal
notes. There being no objection, HJR 13 was reported out of the
House State Affairs Standing Committee.
HB 3-REQUIREMENTS FOR DRIVER'S LICENSE
8:18:16 AM
CHAIR LYNN announced that the next order of business was HOUSE
BILL NO. 3, "An Act relating to issuance of driver's licenses."
CHAIR LYNN reviewed that at its last hearing of HB 3, on January
27, 2011, the committee heard from [Jeffrey Mittman] of the ACLU
regarding concerns about constitutionality. He opined that the
committee has good legal advice both from the Department of Law
and Legislative Legal and Research Services. The former
submitted a memorandum to the committee stating that the
department has no concerns regarding the constitutionality of HB
3, and the latter has confirmed that many other states have
implemented the provisions of HB 3 without meeting with problems
of constitutionality. He said that in response to previously
stated concerns from some committee members, an amendment had
been prepared that would change the requirement under HB 3 that
anyone in the United States under a temporary status would have
to renew his/her driver's license every 30 to 90 days, to every
year. He opined that HB 3 is constitutional, and he expressed
his wish to see the bill move from committee today.
8:20:52 AM
THOMAS REIKER, Staff, Representative Bob Lynn, Alaska State
Legislature, provided an update on HB 3 since its last hearing,
on behalf of Representative Lynn, sponsor. He said a
representative of Legislative Legal and Research Services said
48 states have legal presence requirements in place for
obtaining a driver's license. Furthermore, 30 states also tie
the expiration date of their drivers' licenses to a person's
legal presence in the U.S. Therefore, he concluded that the
ACLU's argument that determining a resident's length of stay
would violate the supremacy clause, that requiring license
renewal for reasons other than driving ability would be
unreasonable, and that the "risk of error is high" seems
spurious. He said the Department of Law's response [written by
Erling Johansen on behalf of the attorney general, dated January
28, 2011, included in the committee packet] to the concerns of
the ACLU was that there was no basis upon which to challenge the
constitutionality of HB 3.
8:24:40 AM
REPRESENTATIVE GRUENBERG noted that Mr. Johansen's memorandum
refers to the bill, not to Mr. Mittman's memorandum.
8:25:32 AM
MR. REIKER said Mr. Mittman's memorandum was forwarded to Mr.
Johansen with a request that he read it, and he stated his
assumption that Mr. Johansen would have done so. In response to
follow-up comments from Representative Gruenberg, he said he
would review all correspondence between himself and Mr.
Johansen, and bring to the committee any which suggests that Mr.
Johansen had, indeed, read the memorandum from Mr. Mittman.
8:27:08 AM
GERALD LUCKHAUPT, Assistant Revisor of Statutes, Legislative
Legal Counsel, Legislative Legal and Research Services,
Legislative Affairs Agency (LAA), in response to Chair Lynn,
confirmed that he does not see any legal problems with HB 3.
He relayed that currently 48 states have a legal presence
requirement; Washington and New Mexico do not, but Washington is
in the process of passing similar legislation. He noted that
during the January 25 House State Affairs Standing Committee
hearing on HB 3, Mr. Mittman had cited Hines v. Davidowitz to
prove that a state and municipality cannot do anything in regard
to aliens. Mr. Luckhaupt said the U.S. Supreme Court devised a
three-part test, with the part most pertinent to this issue
being a determination of whether or not a state is attempting to
regulate the admission of aliens into the country. He said the
State of Alaska is not attempting to do so through HB 3; it
would merely be asking for documents that show that the federal
government has made that determination. He stated that he has
not been able to find cases to support Mr. Mittman's argument,
but he has found 10 cases over the last eight or ten years where
that argument has failed. He concluded that this is something
that is up to the legislature, but he noted that there are
already regulations related to this.
8:32:41 AM
REPRESENTATIVE SEATON explained that he is not trying to figure
out if this is legal to do, but rather whether it should be
done. He said the categories that are most often appointed
indefinite stays by the U.S. Department of Homeland Security
("Homeland Security") are asylum seekers, refugees, diplomats,
and foreign spouses of American citizens who are waiting for
status to be resolved. He asked if there is any legal reason
why the state would determine to not accept the decisions of
Homeland Security when those decisions are made for each
individual in the aforementioned categories.
8:35:06 AM
MR. LUCKHAUPT responded that he does not have a lot of personal
experience with that issue, but he related a story regarding a
co-volunteer firefighter's wife who was from another country and
took about a year to go through the process, but was able to get
a driver's license. He said indefinite stays are for shorter
periods of time. He reiterated that this is a choice for the
committee to make. He related that the State of Delaware waived
renewal fees for people in the indefinite state status, so that
those people could renew for the five-year length of a driver's
license without even coming into the office, and then after five
years would pay the renewal fee.
8:38:06 AM
MR. LUCKHAUPT, in response to Representative Seaton, said he
thinks that under HB 3, those whose authorized stay in the
country indefinitely could be allowed to renew their license by
mail and without charge if the division adopted regulations to
that effect.
8:39:24 AM
REPRESENTATIVE GRUENBERG asked if the division has the ability
to do that under current law.
MR. LUCKHAUPT responded that AS 28.15.101 addresses the issue of
expiration and renewal of drivers' licenses. He cited the first
sentence of subsection (a) of that statute, which read as
follows:
(a) Except as otherwise provided in this chapter,
a driver's license expires on the licensee's birthday
in the fifth year following issuance of the license.
MR. LUCKHAUPT stated, "This isn't going to be a five-year
license anymore; ... it's going to be a one-year license
expiration period, and they can go ahead and set how that
renewal process will occur." He continued, "We don't have
anything that says that a one-year license expires and can't be
renewed in any particular process; they'll be able to identify
that process by regulation if they choose to."
8:40:53 AM
ERLING JOHANSEN, Assistant Attorney General, Labor & State
Affairs Section, Civil Division (Anchorage), Department of Law
(DOL), confirmed that before writing the memorandum to the House
State Affairs Standing Committee, he had read [Mr. Mittman's]
memorandum dated January 27, 2011.
8:41:42 AM
WHITNEY BREWSTER, Director, Division of Motor Vehicles (DMV),
Department of Administration, responded that conceptually the
DMV would not be opposed to waiving fees or allowing a by-mail
process for licenses that are issued for less than a five-year
period, but AS 28.15.271 (a)(1)(A) states that the fees for
drivers' licenses and permits, "including but not limited to
renewals," is $20 for "each license fee"; therefore, she stated
that although she is certain that Mr. Luckhaupt has studied the
matter closely, she would like to confer with the Department of
Law on this matter.
8:43:13 AM
MS. BREWSTER, in response to Chair Lynn, confirmed that the DMV
currently honors letters received from the U.S. Customs and
Immigration Service Agency extending a person's immigration
document, and that would not change under HB 3.
8:44:25 AM
CHAIR LYNN reopened public testimony, [which had been closed on
1/27/11].
8:44:41 AM
JEFFREY MITTMAN, Executive Director, American Civil Liberties
Union (ACLU) of Alaska, said he thinks Mr. Luckhaupt's testimony
focused on the issues that he raised in his memorandum. He
indicated that the issue is not the legal requirement per se,
but the details therein. He clarified that the concern he had
raised at the previous hearing on HB 3 was that under HB 3, the
state would be interpreting a variety of federal immigration
documents and issuing what could be interpreted as two classes
of licenses to those who are legally present in the U.S.
8:45:56 AM
MARA KIMMEL, Alaska Immigration Justice Project (AIJP), stated
that the Alaska Immigration Justice Project is the only
nonprofit agency in Alaska that provides legal services to non-
citizen victims of domestic violence and other violent crimes,
such as human trafficking and sexual assault. She explained
that AIJP is concerned about the affect of the proposed
legislation on these clients. She said HB 3 would prevent these
clients, who are victims of crime and are in the process of
applying for legal status or who have applied but do not have
any documentation from the U.S. Department of Homeland Security,
from obtaining a license or state identification card. She said
this could prevent these people from obtaining safety from their
perpetrators. Ms. Kimmel said the legislature is well aware
that Alaska suffers from inordinately high rate of sexual and
domestic violence. She noted that in May 2010, the Justice
Center at the University of Alaska reported that almost half of
the women in Alaska experience domestic violence, and almost 40
percent experience sexual violence. Ms. Kimmel said there are a
variety of security issues that are raised by HB 3. She
reiterated that the proposed legislation would hurt her clients
and prevent them from getting the help they need. In response
to a question from Chair Lynn, she said the people whom she
referenced are currently not able to obtain a driver's license.
8:48:30 AM
CHAIR LYNN closed public testimony.
8:49:01 AM
REPRESENTATIVE GRUENBERG asked Ms. Kimmel why the people whom
she referenced are not currently able to obtain a driver's
license and whether there is any amendment to HB 3 that would
help these women.
8:49:27 AM
MS. KIMMEL responded that there really is not. She explained
that if the bill goes forward, there is no allowance for those
who are in the process of applying for [legal presence] status
or don't get told that they are in fact eligible to get a
driver's license. She emphasized that obtaining a driver's
license is absolutely critical to the safety of these people.
She added that the zero fiscal note that is attached to the bill
is "just not practical at all."
CHAIR LYNN questioned that someone in a dangerous situation
would not drive a vehicle to get away from that situation just
because he/she did not have a driver's license. He asked,
"Which would be worse, being caught without a driver's license
or having damaging sexual or domestic violence applied to them?"
MS. KIMMEL answered that that is an untenable position in which
to put a victim. She pointed out that if a victim gets pulled
over and is found to be driving without a driver's license,
he/she gets put into removal proceedings.
8:51:38 AM
REPRESENTATIVE GRUENBERG said he is chilled by this information.
He asked Mr. Johansen if the Administrative Procedure Act
governs the regulatory process of the Department of
Administration.
MR. JOHANSEN answered, "AS 44.62 does."
REPRESENTATIVE GRUENBERG asked if HB 3 would have to be amended
in order for there to be authority for the division to decide
not to charge any fees and to waive the requirement that the
person come in to the DMV office "every other time."
MR. JOHANSEN offered his understanding that if the fee is set
out in statute currently, then it would not be amendable through
regulation, but would require an amendment to statute. He said
he is not familiar with the specific requirement regarding
people coming in to the DMV in person; however, he surmised that
if that is in statute, it would still be controlled by the
statute. However, if that requirement appears in regulations,
he said, then the department would have control over it.
8:54:16 AM
MR. LUCKHAUPT, in response to Representative Gruenberg, said he
did not bring the Delaware regulations with him, but could
provide them if needed. He pointed out that AS 28.15.101 is the
expiration and renewal section, which addresses a five-year
license, and states that a person can renew within one year of
the expiration date. He said, "If you get a one-year license,
you can automatically renew under this; it doesn't make sense."
He indicated that the department has been given authority to
deal with regulations addressing the shorter length licenses.
He said his extensive experience writing statutes has shown that
if a statute does not address a particular situation, then that
gives the department the authority to address the situation
[through regulation]. He said Alaska has never before
authorized a license of less than five years duration, and
because the statute addresses renewals related to a five-year
period, then a one-year period is not covered under statute. He
said an amendment could be added to clarify that the department
would have the authority to provide for extensions and renewal
of shorter-length licenses.
8:56:33 AM
MR. LUCKHAUPT, in response to Representative P. Wilson,
confirmed that nowhere in statute does it state that a woman in
trouble cannot call the police or go next door for help.
8:57:43 AM
REPRESENTATIVE SEATON moved to adopt Conceptual Amendment 1, as
follows:
On page 1, following line 9:
Insert "(e) A driver's license issued for less
than five years may be renewed by mail and fees
waived."
CHAIR LYNN announced that there being no objection, Conceptual
Amendment 1 was adopted.
8:58:43 AM
REPRESENTATIVE SEATON, in response to Mr. Luckhaupt, confirmed
that the intent of Conceptual Amendment 1 is that the time
period is up to the normal five-year period. In response to
Representative Keller, he confirmed that Conceptual Amendment 1
is permissive; it is not a requirement.
9:00:19 AM
CHAIR LYNN moved to adopt Amendment 2, labeled 27-LS0010\E.3,
Luckhaupt, 1/27/11, which read as follows:
Page 1, lines 8 - 9:
Delete "may not"
Insert "shall"
Page 1, line 9:
Delete "greater than"
9:00:29 AM
REPRESENTATIVE JOHANSEN objected for discussion purposes.
9:00:43 AM
Mr. REIKER explained that Amendment 2 clarifies that a person
assigned an indefinite, durational, or provisional period of
authorized stay would receive a driver's license for one year
[when otherwise qualified to receive the license]. At the end
of the one year, the division would review the person's status
to determine whether to renew the license.
9:01:28 AM
REPRESENTATIVE JOHANSEN said he has confidence in the DMV's
ability to handle flexibility, but he would not oppose the
amendment. He removed his objection to Amendment 2.
CHAIR LYNN announced that there being no further objection,
Amendment 2 was adopted.
9:01:59 AM
REPRESENTATIVE GRUENBERG moved to adopt Amendment 3, as follows:
On page 1, line 4:
Between "under" and "regulations"
Insert "reasonable"
REPRESENTATIVE GRUENBERG said there are a number of cases in
Alaska that require procedural safeguards and well-drafted
regulations. He cited State of Alaska v. Beans 965 p. 2nd 725,
September 1998. He said in at least 25 instances, statutes
state that departments may adopt "reasonable" regulations. He
expressed concern that the regulations adopted by departments be
rational rather than arbitrary, and he explained that that is
what he means when he uses the word "reasonable" in Amendment 3.
9:04:20 AM
REPRESENTATIVE KELLER objected to Amendment 3. He opined that
Amendment 3 would invite someone - often the courts - to make
the determination whether a regulation is reasonable, which is a
standard that already exists. He opined that making this
specification would invite court action.
9:05:32 AM
REPRESENTATIVE P. WILSON concurred with Representative Keller.
9:05:48 AM
REPRESENTATIVE JOHNSON stated his assumption that Representative
Gruenberg would say that the 25 statutes he mentioned are
reasonable, while all the others are not because they do not use
the word "reasonable". He concurred with Representative Keller.
9:06:34 AM
MR. LUCKHAUPT indicated that regardless of whether or not the
word reasonable is used in statute referring to department
regulations, all regulations must be reasonable. In response to
a Representative Gruenberg, he confirmed that he is saying that
regulations must be reasonable as a matter of law, and that
would be read into statute, even without the adoption of
Amendment 3. He said, "That's part of the analysis." He
offered further details. In response to Representative
Petersen, he said the legislature's grant of authority to the
departments is that they adopt regulations that are reasonable
and relate to the subject matter, but the legislature does not
assume that all the regulations the departments adopt are
reasonable. He said lawmaking is the purview of the
legislature, but departments are allowed to add the details that
probably do not need to be included in statute.
9:10:50 AM
REPRESENTATIVE GRUENBERG asked Mr. Johansen if he agrees with
Mr. Luckhaupt's interpretation.
MR. JOHANSEN responded that in order for regulations to be
upheld, they have to be consistent with the statute under which
they are developed. He said, "It's probably specific to each
situation, but generally speaking, regulations need to be
reasonable."
9:12:29 AM
REPRESENTATIVE GRUENBERG withdrew his motion to adopt Amendment
3.
9:12:37 AM
REPRESENTATIVE KELLER moved to report HB 3, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes.
REPRESENTATIVE JOHANSEN objected.
REPRESENTATIVE GRUENBERG explained why he removed Amendment 3.
REPRESENTATIVE JOHANSEN removed his objection. There being no
further objection, CSHB 3(STA) was reported out of the House
State Affairs Standing Committee.
The committee took an at-ease from 9:13:38 AM to 9:13:44 AM.
HB 14-EXEC ETHICS: LEGAL FEES/FAMILY TRAVEL
9:16:10 AM
CHAIR LYNN announced that the last order of business was HOUSE
BILL NO. 14, "An Act authorizing state agencies to pay private
legal fees and costs incurred by persons exonerated of alleged
Alaska Executive Branch Ethics Act violations; allowing certain
public officers and former public officers to accept state
payments to offset private legal fees and costs related to
defending against an Alaska Executive Branch Ethics Act
complaint; and creating certain exceptions to Alaska Executive
Branch Ethics Act limitations on the use of state resources to
provide or pay for transportation of spouses and children of the
governor and the lieutenant governor."
9:16:26 AM
REPRESENTATIVE GRUENBERG, as sponsor, noted that the following
was included in the committee packet: a memorandum, dated
January 31, 2011, from Dan Wayne of Legislative Legal and
Research Services, which discusses the terms "apportionment" and
"necessarily incurred"; a technically updated sponsor statement;
a sectional analysis; and a memorandum, dated January 25 2011,
from Patricia Young of Legislative Legal and Research Services,
which is in regard to state payment of legal fees incurred in
defense of an ethics complaint against a public official.
REPRESENTATIVE GRUENBERG reviewed that HB 14 is similar to House
Bill 289 from the Twenty-Sixth Alaska State Legislature. He
paraphrased the first two paragraphs of the revised sponsor
statement, which read as follows [original punctuation
provided]:
House Bill 14 sets forth in statute the substance of
the Attorney General's recently-enacted regulations
establishing standards for (1) reimbursement of legal
fees and costs for any executive branch employees
accused of ethical violations, and (2) payment of
travel expenses for the families of only the governor
and lieutenant governor.
HB 14 differs from the regulations in two important
ways. First, although both the regulations and HB 14
authorize the use of state funds to pay the travel
costs of children of the governor and lieutenant
governor to certain events, HB 14 would authorize this
payment not just for minor children, but also for
mentally and physically disabled children who are
dependent on the governor or lieutenant governor for
care.1 Second, the regulations authorize the state to
pay, in advance of exoneration, the ongoing legal fees
and costs of an employee accused of an ethics
violation. If the employee is not exonerated of the
ethics charges, the state must then attempt to recoup
the funds it advanced to defend the guilty employee.
HB 14, on the other hand, would require that an
employee be exonerated before the state could
reimburse the employee for his or her fees and costs.2
HB 14 cures both problems.
REPRESENTATIVE GRUENBERG noted that the reference to
"exonerated" is on page 4, lines 10-11.
9:21:03 AM
CHAIR LYNN closed public testimony.
9:21:16 AM
REPRESENTATIVE SEATON expressed appreciation for the legal
memorandum from Mr. Wayne.
9:21:33 AM
REPRESENTATIVE GRUENBERG, in response to Representative P.
Wilson, said there is no provision currently in statute or
proposed in the bill for recoupment by the state from the person
who filed the original complaint [if the complaint was
unfounded]. He cited a portion of Ms. Young's memorandum, which
read as follows:
The Connecticut law further authorizes that if the
complainant brought the charge knowing that it was
baseless, the public official or state employee will
have a cause of action against the complainant for
double the amount of damage caused. If the action is
successful, the courts may also award the individual
the costs and reasonable attorneys' fees for the
action.
REPRESENTATIVE GRUENBERG said he thinks Alaska's reason for not
adopting such a policy is that it could dissuade people with
legitimate complaints from coming forward. He said that idea
may have merit, but the Department of Law has not suggested that
it is needed, and he decided not to bring that issue into the
proposed legislation.
9:23:59 AM
REPRESENTATIVE P. WILSON expressed her hope that some provision
like that would prevent baseless accusations.
REPRESENTATIVE GRUENBERG said he thinks the concern is that "the
net would cast too broadly." In response to Representative P.
Wilson, he offered to contact Ms. Young to obtain the
Connecticut law.
REPRESENTATIVE P. WILSON said she thinks that would be worth
looking into.
9:25:53 AM
CHAIR LYNN suggested it would be problematic to distinguish
which complaint is and is not frivolous.
REPRESENTATIVE P. WILSON said that is why she would like to have
the Connecticut law before the committee.
9:26:27 AM
REPRESENTATIVE PETERSEN expressed concern that Alaskans would
see this as a way to caution against complaining, and he said he
does not think that is the right direction to be headed.
9:27:41 AM
REPRESENTATIVE GRUENBERG noted that the issue of vexatious
litigants has occupied the attention of the court for a small
number of litigants who take up an inordinate amount of the
court's time. In some cases, the court has required a person
who submits complaints repeatedly to first get court approval
before his/her complaint is heard. Representative Gruenberg
said that is not done "in this area," because the person brings
the matter to the attention of the government, and the
government decides which cases merit attention.
9:30:07 AM
JUDY BOCKMON, Assistant Attorney General/State Ethics Attorney,
Opinions, Appeals, & Ethics, Civil Division (Anchorage),
Department of Law, stated that she thinks that Representative
Gruenberg has "fairly summarized the posture that we're in with
ethics complaints." She added that in statute there are two
layers of review prior to the probable cause finding: the
intake review to see that the complaints meet the requirement of
statute and warrant investigation; and the more formal
investigation which leads to probable cause and a public
accusation and hearing, which rarely happens.
REPRESENTATIVE P. WILSON asked Ms. Bockmon what the effect would
be if Alaska adopted a law such as Connecticut's. In response
to Chair Lynn, she confirmed that she was asking about a
possible law that would pertain to the administrative branch of
Alaska's government.
MS. BOCKMON responded that she is not sure it would change how
the state treats a complaint or the levels of review or process
of investigation. She echoed the concern expressed by others
that such a law may dissuade members of the public from bringing
forward complaints. She asked the committee to keep in mind
that the complaints that are brought forth are not always of the
nature that have been seen in the last couple years; there are
complaints that state employees might wish to bring because they
see what they believe to be improper action. She indicated that
a law, such as the aforementioned Connecticut law could add
process, but not necessarily for the Department of Law. She
explained that it seems that what is being contemplated is that
the subject [of an ethics complaint, who is knowingly wrongly
accused,] would later have to take action to recover the fees,
and she said she does not know "how that would work."
9:34:23 AM
REPRESENTATIVE JOHANSEN concurred with Representative Gruenberg
that this is a larger issue, and he suggested that the topic of
curtailing frivolous litigation in, for example, the areas of
resource extraction and economic development could be taken up
another time, while not [dissuading the public regarding the
issue of ethics complaints].
9:35:14 AM
REPRESENTATIVE GRUENBERG noted that in the civil litigation, the
recovery of costs and fees is under Civil Rules 79 and 82. The
general rule is that the prevailing party recovers its costs in
full and its fees on a sliding scale. He offered further
details.
9:38:13 AM
REPRESENTATIVE SEATON expressed concern that [making citizens
pay for a complaint that is later found untrue] means that the
legislature would be requiring them to know the outcome of the
case before they even file a complaint, and that would be
"chilling." He said he thinks HB 14 is a good bill.
9:40:28 AM
REPRESENTATIVE PETERSEN moved to report HB 14 out of committee
with individual recommendations and the accompanying fiscal
notes. There being no objection, HB 14 was reported out of the
House State Affairs Standing Committee.
9:43:52 AM
ADJOURNMENT
There being no further business before the committee, the House
State Affairs Standing Committee meeting was adjourned at 9:44
a.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| 05 DOL memo-constitutionality of HB 3.pdf |
HSTA 2/1/2011 8:00:00 AM SSTA 4/11/2012 9:00:00 AM SSTA 4/12/2012 9:00:00 AM |
HB 3 |
| 06 HB 3 - 26 States with Length of Authorized Stay Requirement.pdf |
HSTA 2/1/2011 8:00:00 AM SSTA 4/11/2012 9:00:00 AM SSTA 4/12/2012 9:00:00 AM |
HB 3 |
| 07 Lynn Amendment E.3 to HB 3.pdf |
HSTA 2/1/2011 8:00:00 AM |
HB 3 |
| 01 HJR 13 Version A.pdf |
HSTA 2/1/2011 8:00:00 AM |
|
| 02 HJR 13 Sponsor Statement.pdf |
HSTA 2/1/2011 8:00:00 AM |