Legislature(1993 - 1994)

01/23/1993 01:05 PM Senate EAH

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
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                SENATE AD HOC COMMITTEE ON ETHICS                              
                        January 23, 1993                                       
                            1:05 p.m.                                          
                                                                               
  MEMBERS PRESENT                                                              
                                                                               
  Senator Mike Miller, Chair                                                   
  Senator Drue Pearce                                                          
  Senator Jay Kerttula                                                         
                                                                               
  ALSO PRESENT                                                                 
                                                                               
  Tamara Cook, Director                                                        
  Division of Legal Services                                                   
  Legislative Affairs Agency                                                   
  130 Seward St., Suite 409                                                    
  Juneau, AK 99801-2105                                                        
                                                                               
  Terry Cramer, Legislative Legal Counsel                                      
  Division of Legal Services                                                   
  Legislative Affairs Agency                                                   
  103 Seward St., Room 407                                                     
  Juneau, AK 99801-2105                                                        
                                                                               
  ACTION NARRATIVE                                                             
                                                                               
  TAPE 93-1, SIDE A                                                            
                                                                               
  Number 001                                                                   
                                                                               
  The meeting of  the Senate  Ad Hoc Committee  on Ethics  was                 
  called to order by Chairman Miller  at 1:05 p.m.  He  stated                 
  all members  were present,  as well  as Tam  Cook, Director,                 
  Division  of Legal  Services, and Terry  Cramer, Legislative                 
  Legal Counsel.                                                               
                                                                               
  Chairman Miller directed  attention to a memo  dated 1/22/93                 
  from Ms. Cramer to Senator  Pearce concerning the powers and                 
  responsibilities of the Ad Hoc  Committee on Ethics and  the                 
  Select Committee on Legislative Ethics.  Under AS 24.60.037,                 
  the legislature and  legislative committees are  required to                 
  comply with the state Open Meetings  Act, which means the Ad                 
  Hoc Committee falls under  the Open Meetings Act.   However,                 
  in  the new  ethics  legislation which  passed  in 1992,  AS                 
  24.60.170, subsection  (l) provides  the proceedings  of the                 
  committee relating to complaints before it are  confidential                 
  until the committee determines that  there is probable cause                 
  to believe that a violation of this chapter has occurred.                    
                                                                               
  Chairman  Miller  said  the committee  was  in  a  "Catch 22                 
  situation," because  in order  to follow  the Open  Meetings                 
  Act,  the  committee would  violate  the spirit  of  the new                 
  ethics law, and, if the committee  follows the spirit of the                 
  new ethics law, it violates the Open Meetings Act.                           
                                                                               
                                                                               
  Chairman Miller said that when the new ethics law was passed                 
  last year, it was not realized that the old ethics committee                 
  would be  gone and  there would  be a period  of time  where                 
  there  would not be an ethics committee  up and running.  He                 
  added that it was  his understanding that the body  is going                 
  to try to expedite  getting two Senate members  appointed to                 
  the Select Committee on Legislative Ethics.                                  
                                                                               
  Chairman Miller advised that he  will be formally requesting                 
  funds on Monday to  hire an investigator to gather  facts on                 
  what actually happened that night, because, as of right now,                 
  the  only  hard data  is a  tape  recording from  the Juneau                 
  Police  Department.    In  any  case,  there are  a  lot  of                 
  allegations out there, and the  committee needs to have some                 
  hard facts so that they can be turned over to the new ethics                 
  committee.  He also said he would be contacting Commissioner                 
  Burton of the Department of Public Safety on Monday to get a                 
  list of names of retired troopers that could be contacted in                 
  regard to conducting an investigation.                                       
                                                                               
  Number 070                                                                   
                                                                               
  SENATOR KERTTULA requested that in choosing an investigator,                 
  the other members  of the Senate  Minority be contacted  and                 
  informed, and if they have reason for thinking that it isn't                 
  the best choice that they be heard.                                          
                                                                               
  Senator  Kerttula  also  requested that  the  committee take                 
  under consideration  the  possibility of  the vice  chairman                 
  taking over the responsibilities of  the Rules Committee for                 
  the period of time that the investigation is being conducted                 
  and everything is cleared up.                                                
                                                                               
  Number 096                                                                   
                                                                               
  CHAIRMAN MILLER said  it was his  intention to bring back  a                 
  couple of different names to the  Senate Ad Hoc Committee on                 
  Ethics so that there  would be a selection process  that all                 
  the members of  the committee  could feel comfortable  with.                 
  SENATOR  KERTTULA  said  he has  been  told  that  a lot  of                 
  opportunity is lost rather quickly,  and he was pleased that                 
  an investigator would be hired as quickly as possible.                       
                                                                               
  Number 108                                                                   
                                                                               
  CHAIRMAN MILLER noted that it has come to his attention that                 
  there  have  been  four  complaints filed,  but  he  has not                 
  received copies of them.  However, he pointed out that these                 
  are not four new complaints, rather they are four complaints                 
  regarding the same incident.                                                 
                                                                               
  Number 125                                                                   
                                                                               
                                                                               
  CHAIRMAN MILLER  opened the  meeting to  questions from  the                 
  public.                                                                      
                                                                               
  DAVE  DONALDSON,  Alaska  Public  Radio  Network,  asked  if                 
  because of  the Open Meetings Act, the committee was limited                 
  at  this point  to just  having an  investigator.   CHAIRMAN                 
  MILLER  acknowledged  that  was  correct,  and he  said  the                 
  investigation was  being started  to gather information  for                 
  the permanent ethics  committee.  SENATOR PEARCE  added that                 
  in order to  do a proper  investigation in this case,  there                 
  were, obviously, other people involved, and that she is very                 
  concerned  that  anything  that is  done  that  brings those                 
  people into an investigative arena where they would be under                 
  oath has to be private and confidential.                                     
                                                                               
  Number 150                                                                   
                                                                               
  IAN  Mader, Associated Press,  asked if it  was correct that                 
  the Ad Hoc Committee on Ethics  can't bring in witnesses and                 
  have them  testify under  oath.   CHAIRMAN MILLER  responded                 
  that the Ad Hoc Committee could hold hearings and ask people                 
  to  testify,  but they  could  not be  compelled  to testify                 
  because the committee lacks subpoena powers.  SENATOR PEARCE                 
  added that  the committee  has the  power to  ask people  to                 
  testify under oath,  but the  problem is that  it cannot  be                 
  done behind closed doors  by the Ad Hoc Committee  on Ethics                 
  because of the Open Meetings Act.                                            
                                                                               
  Mr. Mader also asked  what kind of activities would  be held                 
  up  by  not  having  a  Rules  Committee  chairman  present.                 
  SENATOR KERTTULA answered that nothing would be held up, and                 
  the  vice  chairman  would  be  overseeing  the   day-to-day                 
  management of the committee.                                                 
                                                                               
  Number 188                                                                   
                                                                               
  TAM COOK clarified  that the legislature  is subject to  the                 
  open   meetings   statute.      The   court,   by   judicial                 
  interpretation, has  indicated that  it will  not enforce  a                 
  violation  of   the  open   meetings  statute   against  the                 
  legislature.  However, in the new Ethics Act which is now in                 
  effect, the legislature  has elected to make  a violation of                 
  the open meetings  statute a  violation of  the ethics  law.                 
  That  was  not  true  until  it  took  effect this  January.                 
  Essentially, the  legislature has  brought itself  under the                 
  control of the  open meetings statute through  the mechanism                 
  of giving its  own ethics committee jurisdiction  over those                 
  types of violations.                                                         
                                                                               
  Ms. Cook advised that  there is great deal that  a committee                 
  can do  under the  Open Meetings  Act and  comply with  that                 
  statute, but they  must comply with the  notice requirements                 
  and they must go  into Executive Session properly.   In some                 
  instances, in an investigation such as this, assuming the Ad                 
                                                                               
                                                                               
  Hoc Committee ends  up having to go  forward with it in  the                 
  absence of the select committee  being formed, Ms. Cook said                 
  the Ad Hoc Committee, on occasion, could probably invoke the                 
  portions  of  the  open meetings  statute  that  provide for                 
  Executive Sessions to protect matters involving  personality                 
  or that may be damaging to  a person's reputation.  She said                 
  the problem is that it  is a fairly narrow protection.   And                 
  short of  that particular  one, there  may be  all sorts  of                 
  matters that  they  have difficulty  getting into  Executive                 
  Session properly to deal with.                                               
                                                                               
  Ms. Cook said the Select Committee on Legislative Ethics has                 
  been directed to  keep a great  deal of their  investigatory                 
  stage  confidential.   The  statutes,  with respect  to that                 
  select committee, are  far different from the  statutes that                 
  apply  to  another  committee  of  the legislature  that  is                 
  abiding by the open meetings statute.                                        
                                                                               
  Concluding, Ms. Cook  said the dilemma that confronts the Ad                 
  Hoc Committee  on Ethics  today is  that they  are concerned                 
  that they will  not be able to  behave in the same  way that                 
  the select committee can behave because they do not have the                 
  statutory framework that was  put into effect to enable  the                 
  select committee to conduct confidential investigations.                     
                                                                               
  Number 230                                                                   
                                                                               
  SENATOR KERTTULA related that there had been a suggestion of                 
  drafting legislation that  would allow the Ad  Hoc Committee                 
  to opt  in  briefly with  varying  powers until  the  formal                 
  committee is appointed.  However, it looked like that  would                 
  be delaying and cumbersome,  and the major concern was  that                 
  it might get the Ad Hoc Committee into an ethical problem.                   
                                                                               
  Number 250                                                                   
                                                                               
  CHAIRMAN MILLER adjourned the meeting at 1:21 p.m.                           
                                                                               

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