Legislature(2017 - 2018)Anch LIO Lg Conf Rm
05/17/2018 08:00 AM Senate SELECT COMMITTEE ON LEGISLATIVE ETHICS
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ALASKA STATE LEGISLATURE
SELECT COMMITTEE ON LEGISLATIVE ETHICS
MAY 17, 2018
8:05:48 AM
Committee members present:
Dennis "Skip" Cook, Chair
Conner Thomas
Joyce Anderson
Deb Fancher
Rep Colleen Sullivan-Leonard
Sen John Coghill (telephonic)
Sen Dennis Egan (telephonic)
Others present:
Dan Wayne (telephonic)
Skiff Lobaugh (telephonic)
Jerry Anderson, Administrator
Jacqui Yeagle, Administrative Assistant
1. Call the Meeting to Order:
Chair Dennis "Skip Cook called the meeting to order at
8:05 AM.
2. Approval of Agenda:
Conner Thomas made a motion to approve the agenda. No
objection. Agenda approved.
3. Approval of Minutes:
a. March 8, 2018 Full Committee Minutes
Deb Fancher made a motion to approve the minutes. No
objection. Minutes approved.
b. March 8, 2018 Senate Subcommittee Minutes
Conner Thomas made a motion to approve the minutes. No
objection. Minutes approved.
c. March 8, 2018 House Subcommittee Minutes
Conner Thomas made a motion to approve the minutes. No
objection. Minutes approved.
d. April 21, 2018 Senate Subcommittee Minutes
Deb Fancher made a motion to approve the minutes. No
objection. Minutes approved.
e. April 21, 2018 House Subcommittee Minutes
Conner Thomas made a motion to approve the minutes. No
objection. Minutes approved.
4. Public Comment: No public comment.
5. Chair/Staff Report
Administrator Jerry Anderson pointed out that an addition
to the packet is a fiscal year-to-date report as of May 8.
One of the categories shows an amount overbudget but
Anderson explained that some portion of the contracts will
lapse due to the public hearing being continued until a
proposed date of July 17.
Jerry Anderson said that no Senate Subcommittee meeting is
anticipated on that date. Anderson asked that if committee
members anticipate a conflict with that date to please
email him with that information.
Chair Skip Cook expressed his opinion that the Full
Committee would meet prior to the House Subcommittee, and
he suggested an 8:30 a.m. start time for the Full Committee
and a 10:00 a.m. start for the House Subcommittee meeting
and public hearing.
Jerry Anderson asked those attending telephonically if
there were any conflicts with the proposed date and time.
Dan Wayne reported that he may have a conflict on that
date.
Jerry Anderson finished his report by saying that in 2018,
548 employees have completed the Sexual Harassment Training
and 83 employees have completed the required ethics
training. Two new employees received notice about the
required trainings but have not yet completed it.
6. 2019 Ethics Training
Chair Skip Cook directed Jerry Anderson to open a
discussion of current Ethics and Sexual Harassment Training
requirements and the options for 2019.
Jerry Anderson noted that in 2018, the Committee required
all legislators and legislative employees to attend the
Sexual Harassment Training, which was conducted by the
Alaska State Commission for Human Rights. Anderson asked
for direction from the Committee regarding training
requirements in 2019, specifically, whether the Sexual
Harassment Training would be required in addition to the
regular Ethics Training. Anderson added that currently new
employees view an online version of the Sexual Harassment
Training and that type of training is one option to
consider for all employees in 2019 if the Sexual Harassment
Training will be required.
Chair Skip Cook noted that it is unknown whether the Human
Rights Commission is willing to conduct the training in
2019. Chair Cook also presented two options to consider for
2019: Continue a separate Sexual Harassment Training
component if the Human Rights Commission is willing to do
so or add the Sexual Harassment Training component to the
regular Ethics Training. Either way, that would be a six-
hour training block.
Legislative Affairs Agency Human Resources Manager Skiff
Lobaugh confirmed that since the late 90s, new employees
and legislators have received the EEO Sexual and Other
Workplace Harassment Training. Chair Cook asked if only new
employees received the training or if returning employees
also received the training. Lobaugh responded that only new
employees were required to attend unless there was a
complaint or other reason that a returning employee was
directed to attend.
Chair Skip Cook asked if that requirement would continue
and Skiff Lobaugh responded that he expects to work at
least one EEO training into the new employee orientation
and work with the executive director to offer one new
legislator session of the training. Lobaugh also indicated
he is willing to work with the Committee in developing
another approach.
Jerry Anderson reviewed the current Ethics Committee
training requirements: All legislators and legislative
employees are required to complete ethics training every
two years. There are several training sessions. The session
for legislators is slightly shorter than the session for
non-staffer legislative employees. At three hours,
legislative staffers have the longest training session.
Senator John Coghill asked if the recently-developed
Legislative Council policy regarding workplace values would
be part of the regular ethics training.
Skiff Lobaugh responded that the policy was intended to be
part of an ethics training mandate. The details of how that
training would be implemented needs to be worked out.
Senator John Coghill asked Skiff Lobaugh how long a Sexual
Harassment refresher training might be. Lobaugh responded
that in his opinion a 20- 30-minute refresher of the policy
would be sufficient if it is in conjunction with the Ethics
Training. However, Lobaugh is not sure whether the Human
Rights Commission would consider that a full-fledged
training. Lobaugh estimates that a full-fledged training
would take a couple of hours.
Chair Skip Cook asked if it is possible to have a more
refresher rather than a full training.
Deb Fancher asked about having the refresher training
available online, adding that the problem is that an online
training does not allow for asking questions of a
facilitator.
Chair Skip Cook agreed that online training could be a
possibility and asked Jerry Anderson if he had had any
discussion with the Human Rights Commission about this
topic. Anderson replied he had not had any direct
communications with them.
Jerry Anderson commented that currently new employees watch
a three-hour online version of the training. A shorter
version of the training is a possibility, but he has not
approached the Human Rights Commission about that.
Chair Skip Cook asked Jerry Anderson if he could arrange a
meeting with Skiff Lobaugh and the Human Rights Commission
to consider the question and report back at the next
Committee meeting. Lobaugh offered to arrange that meeting.
Representative Colleen Sullivan-Leonard mentioned she is a
member of the Society for Human Resource Management and she
believes there are a number of sexual harassment and EEOC
trainings available through the organization that could
serve as a refresher.
Conner Thomas asked if it is a foregone conclusion that the
Sexual Harassment Training is a responsibility of the
Ethics Committee. Chair Cook responded that it appears to
be so and asked Jerry Anderson to identify the part of
statute that addresses it. Anderson replied that part of
statute is AS 24.60.155. Skiff Lobaugh read the section to
the Committee.
Sec. 24.60.155. Legislative ethics course.
(a) A person who is a legislator, legislative
employee, public member of the committee,
legislative intern, or legislative volunteer
shall complete a legislative ethics course
administered by the committee under AS
24.60.150(a)(4) within 10 days of the first day
of the first regular session of each legislature
or, if the person first takes office or begins
service after the 10th day of that session,
within 30 days after the person takes office or
begins service. The committee may grant a person
additional time to complete the course required
by this section.
Chair Skip Cook asked if there was language that mentions
harassment. Skiff Lobaugh read the language in 24.60.039.
Sec. 24.60.039. Discrimination prohibited.
(a) A legislator or legislative employee may not
engage in acts of discrimination in violation of
AS 18.80.220.
Skiff Lobaugh said that it does not address a legislative
sexual harassment policy. That raises the issue of whether
sexual harassment policy training is mandatory under the
Ethics Act even though the Legislative Council policy
suggests that it is. The Legislative Council cannot amend
the Ethics statutes that would require a change in the
statute, which the legislature could do.
Deb Fancher recalled that it was legislators who wanted to
make the training mandatory and including it as part of
Ethics Training would accomplish that. Dan Wayne confirmed
Fancher's recollection and said that the training is in
compliance with AS 18.80.220(a), which prohibits sexual
harassment in the workplace.
Skiff Lobaugh stated that he would argue the "meat of the
thing" is in the ethics realm under AS 24.60.039 rather
than AS 18.80.220.
Dan Wayne suggested the Committee might want to consider
whether it wants to get involved in administering the
sexual harassment policy adopted by the legislature or
interpreting its provisions when it was not crafted by the
Ethics Committee.
Senator John Coghill recalled that last year's
extraordinary circumstances led to the mandate for this
year but there was a question about whether it would be
mandated every year. Senator Coghill is not sure if a
decision about that had been made, in part because it
seemed they were interested in developing a policy. Senator
Coghill added that the failure to act properly can be dealt
with in a complaint process.
Senator John Coghill continued by saying that he thinks the
training should be provided because it is valuable but
suggested that long-term legislators need only a review of
the policy because the Ethics Committee will deal with
breaches. However, a full training for first-time
legislators is appropriate because they need to know their
responsibilities in this complex employer circumstance.
Chair Skip Cook said that under AS 24.60.039, legislators
or employees may not engage in acts of discrimination. The
question is: Does discrimination encompass all types of
discrimination and is sexual harassment discrimination? If
so, it can logically be seen to be under the Ethics
Committee venue. Chair Cook suggested seeing what could be
worked out in terms of training. He added that part of the
concern is whether six hours of training every two years
may be onerous. Refresher training as an alternative and
using the tools in place seems logical.
Conner Thomas said that a 25 to 30-minute refresher
training in addition to the regular ethics training would
be one thing but mandating a 3-hour training conducted by
another group may be another.
Chair Skip Cook said that if we were going to incorporate
the sexual harassment training into the ethics training,
the ethics training would need to be shortened.
Conner Thomas suggested checking to see if the Human Rights
Commission can shorten their training for returning
legislators and employees.
Representative Colleen Sullivan-Leonard said that continued
training is important because people forget over two years
and it is better to err on the side of caution to prevent a
repeat of past issues.
Senator Dennis Egan agreed with Representative Sullivan-
Leonard and thinks that this year's training was excellent.
Senator Egan thinks everyone should attend the training
every two years employees and legislators.
Chair Skip Cook suggested that it would be worth asking the
Human Rights Commission if they are willing to conduct the
training every two years with an available online option,
though he recognizes the value of discussion that is
possible in a live presentation.
Joyce Anderson asked if the Ethics office would track
attendance at the sexual harassment training as well as the
ethics training.
Chair Skip Cook replied affirmatively to Joyce Anderson's
question.
Chair Skip Cook recommended that a meeting be arranged
between Jerry Anderson, Skiff Lobaugh, and the Human Rights
Commission to discuss training options.
7. Advisory Opinion 18-02
Dan Wayne introduced Advisory Opinion 18-02 by reading each
of the questions and summarizing the answers.
1) May a legislator, after a state funded relocation to
Juneau for a legislative session, attend and sponsor a
fund raiser for a state election campaign before the
start of the legislative session?
The draft concludes yes, a legislator may attend and
sponsor a fund raiser for a state election campaign before
the start of the legislative session.
2) May a legislator, after a state funded relocation to
Juneau for a legislative session, attend a political
forum or a fund raising dinner for a political party
in Juneau during that legislative session?
The draft concludes yes, as long as the legislator merely
attends and does not directly or indirectly host, co-host,
solicit participation, promote the event, or aid in the
fund raising. Legislators have to be careful. Some years
ago, legislator names were listed on posters promoting
the event and that is not allowed.
Chair Skip Cook asked if there were questions for Dan
Wayne.
Conner Thomas made a motion to adopt AO 18-02 as drafted
and presented. No objection.
Roll Call Vote AO 18-02
Dennis "Skip" Cook Y
Joyce Anderson Y
Conner Thomas Y
Deb Fancher Y
Rep Colleen Sullivan-Leonard Y
Sen John Coghill Y
Sen Dennis Egan Y
Advisory Opinion 18-02 was approved by a vote of 7-0.
8. HB 44 Discussion
Administrator Jerry Anderson commented that HB 44 has a
number of provisions and some apply to sections of the
Ethics Act, and it is those he would focus on in his
review.
One significant change to the legislative ethics act begins
on page 8. In referring to a gift of food or drink for
immediate consumption to a person covered under AS 24.60,
it adds the word "nonalcoholic" as a descriptor to the word
"beverage." That impacts AS 24.60.080.
In addition, section 7 on page 8 amends AS 24.60.030(e).
This is a significant change because it expands the
provisions under 24.60.030(e) beyond simply restricting a
legislator who is negotiating for employment from taking or
withholding official action or exerting official influence
that could be substantially benefit or harm the financial
interests of another person. It expands the provision to
include a member of the legislator's immediate family or a
member of the immediate family's employer. It leaves in the
provision a legislator who is negotiating for employment.
In (D) on page 9, it adds "from whom the legislator or a
member of the legislator's immediate family has, in the
immediately preceding 12-month period, received more than
$10,000 of income.
Jerry Anderson turned the discussion over to Dan Wayne, who
has worked with the provisions, "substantially benefit or
harm the financial interests of another person" and taking
or withholding official action or exerting official
influence.
Dan Wayne commented that on page 9 the word "substantial"
is given a new definition and he read, "Substantially
benefit or harm means the effect on the person's financial
interest is greater than the effect on the financial
interest on the general public of the state." Wayne
suggests waiting to see what kind of facts come before the
Committee. It leaves it up to the individual to figure out
what it means, to call the ethics office and ask for advice
about whether or not they need to declare a conflict and so
forth. The definition is pretty broad; it is hard to
describe exactly what "substantial" is and so it will need
to be looked at on a case-by-case basis.
Jerry Anderson reminded the Committee that there have been
a number of advisory opinions under the old law about when
that provision would apply. Anderson thinks there is an
opportunity for the Ethics Committee to explore that
question with the individual legislators if they ask for
formal advice. Anderson expects that will happen under the
changes outlined in HB 44. Anderson asked Dan Wayne to
speak a bit more about what "taking or withholding official
action or exerting official influence" means.
Dan Wayne said there is no definition in the Ethics Act of
"official action" but there is a definition of "legislative
action." In the past, the Committee has said that official
action includes legislative action; official action is the
broader term. If the Committee looks at the question again,
that could change. Legislative action means "conduct
relating to the development, drafting, consideration,
sponsorship, enactment or defeat, support or opposition to
or of a law, amendment, resolution, report, nomination, or
other matter affected by legislative action or inaction
There are a lot of ways this could go depending upon the
facts in each situation.
Representative Colleen Sullivan-Leonard asked Dan Wayne if
he could speak to the intent of Section 9, (2).
Dan Wayne replied that basic intent was talked about in
hearings and also in the sponsor statement. Wayne read, "HB
44 contains provisions to ensure conflicts are
"substantial" before a legislator would be required to
abstain from voting. Any benefit a legislator or a member
of the legislator's immediate family might receive from
supporting a particular piece of legislation would have to
be greater than the benefit a large group of Alaskans would
receive in order to require abstention. The bill recognizes
the responsibility of legislators to vote, except in clear
cases where the outcome of the vote would result in
substantial personal financial gain. This includes cases
where an immediate family member or a legislator's employer
would receive a large and direct financial benefit.
Dan Wayne continued by saying that it does not look like
the intent was to rule out any type of financial benefit;
it has to be something big.
Representative Colleen Sullivan-Leonard asked Dan Wayne if
HB 44 better defines the process for a legislator who feels
they have a clear conflict, asks to be excused, and someone
objects to the request to abstain every time. Chair Cook
asked if the uniform rules override the legislation.
Dan Wayne acknowledged there has been a problem for
legislators when they try to abstain. In virtually every
case, there has been an objection and they have been
required to vote. The bill does not change the uniform
rules. And the uniform rules would override the statute, so
when a legislator declares a conflict on the floor when
voting, the same rules would apply.
Chair Skip Cook asked if the uniform rules allow the chair
to excuse a legislator from voting in committee. He also
asked if the uniform rules require legislators to vote on
the floor and in committee also.
Dan Wayne read from Uniform Rule 34(b). "Every member
present in the house shall vote unless the house for
special reasons permits a member to abstain." Wayne thinks
there has been some debate in the past about whether this
section applies to committee but is uncertain if or how it
was resolved. It is not an ethics question; it is a uniform
rules question. Wayne said he would need to talk to other
attorneys about the question.
Senator John Coghill explained that the reason it is a
question in committee is that a bill generally and legally
does not belong to the committee, it belongs to the whole
body. Legislators have declared a conflict in committee,
but they are still required to be part of the discussion.
They do not have a say in the final disposition on that
bill until it is on the floor.
Chair Skip Cook said the Ethics Committee might be called
upon to address the question of whether someone failed to
declare a conflict.
Joyce Anderson reported there are two definitions of
immediate family and the one being referred to is the
actual definition in statute, which is narrow compared to
the one in the gift statute, which includes grandparents
and aunts and uncles and so on. It is important to point
out the definition is the narrower one.
Jerry Anderson reminded the Committee that they have had
formal advisory opinion requests about conflicts of
interest. Anderson anticipates getting more questions with
this legislation. It also affects ethics training,
substantially affecting a number of sections, and that will
be incorporated into the training.
Joyce Anderson pointed out that there is a new definition
in Section 11 financial interest.
9. Other Business: Next meeting is July 17.
10. Adjourn:
A motion to adjourn was made by Conner Thomas. No
objection. Meeting adjourned at 9:18 AM.
9:18:13 AM
| Document Name | Date/Time | Subjects |
|---|---|---|
| 20180517FullCommitteePost.pdf |
JETH 5/17/2018 8:00:00 AM |
|
| 20180517 FullCommitteeMinutesAPPROVED.pdf |
JETH 5/17/2018 8:00:00 AM |