Legislature(1993 - 1994)
02/01/1993 02:00 PM Senate JUD
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SENATE JUDICIARY COMMITTEE
February 1, 1993
2:00 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Rick Halford, Vice-Chairman
Senator Suzanne Little
MEMBERS ABSENT
Senator George Jacko
Senator Dave Donley
OTHERS PRESENT
Senator Al Adams
Senator Judy Salo
Senator Mike Miller
COMMITTEE CALENDAR
OVERVIEW: ETHICS LAW
PREVIOUS SENATE COMMITTEE ACTION
NONE
WITNESS REGISTER
Terry Cramer, Attorney
Legislative Legal Counsel
Room 407
130 Seward Street
Juneau, Alaska 99801
POSITION STATEMENT: Presented the overview.
ACTION NARRATIVE
TAPE 93-5, SIDE A
Number 001
Chairman Robin Taylor called the Judiciary Committee meeting
to order at 2:00 p.m. He introduced TERRY CRAMER, attorney
for the Legislative Legal Counsel and the Standards of
Conduct Handbook prepared by the Select Committee on
Legislative Ethics - for Legislators and Legislative
Employees.
MS CRAMER explained she would summarize the sections of the
ethics code that address conduct on the part of legislators
and legislative employees and to try to point out the
changes the law made in the bill last year. She suggested
the members should not rely on what she said without
checking.
MS CRAMER said the first section of the handbook served to
set the manner in which the code should be interpreted
rather than how conduct should actually take place. In
reference to the Applicability section on page 2, she said
it contained a major difference for legislative employees.
Number 063
SENATOR TAYLOR asked MS CRAMER to give a brief explanation
of the current transition and whether a complain brought to
the committee today regarding an incident that occurred last
year, would be considered under the current law or the law
in existence at the time of the incident.
MS CRAMER explained the transition section of the bill would
allow the newly selected committee to consider complaints
before the new law went into effect and should follow the
procedures under the amended act. A penalty, or sanction
would not be allowed, unless such a sanction was authorized
under the previous law. She said the transition section
does not specifically speak to the statute of limitation,
and she spoke to the variations. MS CRAMER thought the new
committee could only look back two years, but the previous
code could be subject to scrutiny for five years.
Number 098
SENATOR TAYLOR asked for clarification on the old code v.
the new code in regards to complaints and sanctions. MS
CRAMER said it was a question the committee would have to
resolved as to what would constitute unethical behavior
under the old code. She explained it should be a
substantive matter which would be brought forward by the new
committee for those kinds of proceedings. MS CRAMER said
that ultimately all the Ethics Committee could do under
either versions of the code would be to make a
recommendation to the body.
Number 139
SENATOR TAYLOR questioned the level of toleration from the
old code to the new code. MS CRAMER explained the old code
had a "thou shalt not" approach to a conflict of interest,
but the new code gets much more specific. She said the new
code was much more restrictive - particularly with
legislative lobbyists.
In the new code, MS CRAMER thought the fund raising and
gifts from lobbyists had become more specific, which might
be a surprise to some people.
MS CRAMER explained the new definition section as being more
inclusive, and broadly interpreted. She used the area of
contracts to explain the reporting of tangible goods as well
as intangibles, and suggested it might be difficult to
apply. MS CRAMER lamented not having a body of advisory
opinions from which to draw in answering questions.
Number 190
SENATOR TAYLOR questioned the validity of the advisory
opinions rendered by the Ethics Committees over the last
several years. MS CRAMER, in reference to AS 24.60.061,
answered there has never been an advisory opinion with a
binding analysis on future committees but only binding to an
individual for specific circumstances. She thought the new
committee would be grateful to accept any previous analysis
that would apply to present circumstances, but it would
remain the discretion of the new committee.
In reference to AS 24.60.030(a), STANDARDS OF CONDUCT, MS
CRAMER discussed a list of prohibitions in the performance
of official duties for both legislators and employees in
campaign contributions, gifts, and volunteer services. She
pointed out some areas of question in this section.
In subsequent paragraphs, MS CRAMER reviewed the examples
and prohibitions. SENATOR ADAMS asked about "policemen" and
was referred to another section. MS CRAMER thought this
section was stringently drafted, but she hoped the new
committee would modify the interpretation.
Number 256
SENATOR HALFORD questioned the definition of "work schedule"
during the legislative session since work is done at all
hours - particularly late in the session. MS CRAMER didn't
have an answer, but thought those in authority should be
involved in this decision using a common sense approach.
She thought this was a questionable area to be decided by
the new committee.
In reference to AS 24.60.030(a)(5), SENATOR TAYLOR protested
the disparity of calling for a "citizen legislature," where
the legislator must earn a living at another job in
addition, with the reality of running a business in various
parts of the state. He gave the example of store owner
legislators in such places as Kotzebue, Fairbanks, and
Juneau, and suggested it placed unfair limitations on a
citizen legislator who serves from a more remote part of
the state.
Number 299
MS CRAMER agreed this was a problem area. SENATOR TAYLOR
asserted a person living in a remote area and running for
the legislature would pay a penalty for being in Juneau.
SENATOR HALFORD announced the first half of the book was
incorrect and asked MS CRAMER who the first 33 pages
represented. MS CRAMER replied it was written by the staff
from the previous ethics committee to be given to new
members. She quoted from the "Purpose of this Handbook" on
page 1 to answer SENATOR HALFORD'S questions.
Number 324
SENATOR HALFORD concluded the questions and answers on the
first 34 pages were immaterial, so he ripped them out. He
admitted to SENATOR ADAMS he had been on the conference
committee, but he said they had written the law not the
book.
MS CRAMER said another campaign prohibition, not in the old
law, was one which would not apply until the next election.
She explained that beginning 90 days before an election and
running until the day after the election, the only state
funds permitted to be used for a mass mailing would be from
the legislator's office allowance. MS CRAMER also explained
some variations of this prohibition.
From AS 24.60.030(d), MS CRAMER reviewed a prohibition
preventing a legislator from distributing or posting
campaign literature in public areas of buildings, but she
said "public areas" was not a defined term. She thought it
wouldn't include the legislator's personal office, but it
should be more defined.
SENATOR TAYLOR initiated a general discussion about the
posting of campaign literature in relation to the Democratic
Skits. He decided it was another section which would need
definition by the new ethics committee, and MS CRAMER
agreed.
Number 384
On the subject of membership on boards, AS 24.60.030(f), MS
CRAMER said employees may not serve on boards requiring
legislative confirmation such as the Board of Education.
Also, legislators or legislative employees must disclose to
the Ethics Committee in a letter, if they are a member of a
board, and if the board has substantial regular interest in
the activities of a legislator or an employee. She said
there was no provision for publishing the letters, but
thought the letters would be kept by the committee as public
records.
SENATOR SALO initiated a discussion with MS CRAMER as to
whether reimbursable money spent on board meetings should be
declared by a legislator who is a member of a board. MS
CRAMER was not clear as to the responsibility of the board
member and admitted she didn't know.
Number 416
SENATOR TAYLOR thought it was a good question and would
require an answer by the new Ethics Committee. He stated
that some boards paid a stipend for each meeting. MS CRAMER
explained why it would not be treated as a gift or as
partial payment in the person's capacity as a legislator.
SENATOR TAYLOR stressed the legislator would have to
disclose membership on the board. MS CRAMER demurred, and
SENATOR TAYLOR explained why the legislator should disclose
any substantial interest.
Number 427
SENATOR SALO gave an example as being in the grey area where
the interest factor would be debatable. MS CRAMER thought
for some boards the interest would change over time, and she
read the definition for "substantial interest," which would
include a financial interest. SENATOR TAYLOR said there
would need to be further clarification on the subject of
legislators on boards.
SENATOR TAYLOR moved the meeting on to subsection (g) where
MS CRAMER explained that a legislator or legislative
employee with a substantial ownership interest must refrain
from participating in any official legislative,
administrative, or political action. The exception would be
where the Uniform Rules would require the legislator to take
action, and she gave an example.
Number 461
The first sentence of AS 24.60.031 outlined campaign fund
raising in which, "a legislator or legislative employee may
not request or accept a contribution, or a promise to make a
contribution, for a state legislative campaign while the
legislature is in session." MS CRAMER said the old ethics
code restricted fund raising events in the capitol city
during the session, but she described the new code as being
more restrictive. SENATOR ADAMS asked for some
clarification.
MS CRAMER also explained a legislator or a legislative
employee would not be able to accept money from an event
held during the legislative session either to raise money
for the members or to raise money for state legislative
political purposes. Money raised during the session, would
have to go to people not covered by the code.
SENATOR TAYLOR paraphrased her wording to answer SENATOR
ADAM'S saying, "Normal political parties can't go out and
raise money during a legislative session if that money is
for state legislators running for office. They can't accept
it." MS CRAMER agreed with his wording, and also agreed it
was just for challengers - not present legislators.
SENATOR HALFORD returned to AS 24.60.020 to ask MS CRAMER to
read (a)(2) and explain what it means. She read, "This
chapter does not apply to a person elected to the
legislature who, at the time of election, is not a member of
the legislature." She said it doesn't apply to a challenger
but would apply to someone moving from the House to the
Senate.
Number 493
MS CRAMER said the code doesn't apply to candidates or
people who have been elected to the Legislature - but have
not yet been sworn into office. SENATOR HALFORD said the
wording looked very strange, and it was the worst wording he
had seen. MS CRAMER agreed. This produced some raillery
among the committee members. SENATOR HALFORD asked for a
written opinion on the real meaning of the wording, because
he did not think it said what was intended when the law was
passed.
SENATOR TAYLOR confirmed the request and suggested there was
possibly too much left to the new committee as to
guidelines, definitions, and cleanup on the interpretation
of the law.
Number 525
SENATOR LITTLE asked that the opinion be distributed to all
of the members of the committee, and SENATOR TAYLOR agreed.
MS CRAMER returned to AS 24.60.031 to explain "you may not
spend money in a state legislative campaign that was raised
by or for a legislator during the session under a general
letter of intent to become a candidate for public office."
She posed a hypothetical example of a confused opinion and
suggested there be very careful reading of the fund raising
prohibitions.
To emphasize the problems in the code, SENATOR TAYLOR
described a situation in which he might raise money to run a
statewide office. He decides instead to run for his Senate
office, but the money, which he can't use, must be given to
the Republican party, where it will be used for a non-
incumbent to run for office. SENATOR TAYLOR exclaimed it
would be an accounting nightmare. There was some discussion
of the problems as outlined in SENATOR TAYLOR'S scenario.
MS CRAMER said the legislators could not use money raised in
events during the session for any campaign purposes.
Number 559
SENATOR SALO questioned a mass mailing in SENATOR TAYLOR'S
hypothetical example. MS CRAMER reiterated a prohibition,
but SENATOR SALO didn't think it reflected the intent of the
committee.
SENATOR TAYLOR agreed with SENATOR SALO'S assessment, and MS
CRAMER acknowledged it was an area to be explored. He
didn't see why those running against the incumbents should
get an edge.
MS CRAMER drew attention to some new sections.
The section concerning Legislative Employee Candidacies
explained a situation in which a legislative employee, who
wishes to run for a seat in the Legislature, must resign
from their legislative job before initiating their campaign.
MS CRAMER said the Protection of Whistle Blowers added
legislative employees to the list of those protected for
reporting a violation of the ethics law.
MS CRAMER said the Open Meetings Law had not been applied to
the Legislature .....
TAPE 93-5, SIDE B
Number 001
.....but was now chosen to be an ethical violation for a
member to take part in meetings that violate the Open
Meetings Law. She said the Ethics Committee would adopt
guidelines for the application of the Open Meetings Law to
the Legislature, and she gave some interpretation of the
section.
Number 011
SENATOR HALFORD explained this area was one of the final
issues discussed in the conference committee, and he said
the opinion expressed at the time the bill was passed was
that the Open Meetings Law applied only under guidelines
adopted by the committee. Until the guidelines were
adopted, he said there wouldn't be any blanket application
of the Open Meetings Law. SENATOR HALFORD quoted the ethics
committee chairman, SENATOR VIRGINIA COLLINS, as saying that
was clearly her intent.
SENATOR ADAMS asked if there was a letter of intent, but
SENATOR HALFORD didn't think there was. He quoted then
REPRESENTATIVE MIKE MILLER as remembering the same thing.
MS CRAMER said once the committee has the guidelines in
place, the problem would go away; however, she said it was a
difficult area in which to advise people.
SENATOR HALFORD said there was no transition with regards to
the provisions of this law, and if AS 24.60.037 was being
currently applied, the entire Open Meetings Law of the state
would apply to the Legislature now. He said the exception
was that the enforcement tool was totally within the control
of the Legislature after recommendation by the committee.
MS CRAMER agreed with his explanation.
SENATOR HALFORD said the Open Meetings Act doesn't include
the exemptions listed in the "Standards of Conduct
Handbook," and he considered this a troublesome area.
MS CRAMER suggested the use of the Uniform Rules until the
new guidelines for the Open Meetings Law were adopted.
SENATOR ADAMS accused the majority of not recognizing the
Uniform Rules at this time, and SENATOR HALFORD objected.
In reference to AS 24.60.039, MS CRAMER said it would put
discrimination within the jurisdiction of the Ethics
Committee, and she explained the relationship to a violation
of the Unlawful Employment Practices Law in AS 18.80.220.
Number 049
MS CRAMER said the provisions in AS 24.60.040 had stayed the
same with the addition of a new definition of "direct or
indirect benefits," but it was consistent with previous
practices. She said the one major change was the inclusion
of family members.
SENATOR TAYLOR questioned whether it would apply to "spousal
equivalents" employed by the Legislature. She said the only
spousal equivalent mentioned was in the nepotism section,
.090. He clarified that a spousal equivalent would not be
prevented from receiving a sole-source contract or
participation in state contracts or leases. They agreed it
prohibit only actual spouses.
AL ADAMS asked for a ruling on a legislative spouse, who is
a lobbyist, and the legislator is in charge of the Finance
Committee. SENATOR TAYLOR and MS CRAMER agreed it would
come under a Close Economic Associations which is covered in
AS 24.60.070, and must be disclosed, but it wasn't
prohibited.
SENATOR HALFORD asked MS CRAMER for the proper procedure for
a member of the Legislature, who received a request from a
state agency to provide a service. After discussion with MS
CRAMER, he clarified it couldn't be done unless it was done
by competitive sealed bid. MS CRAMER gave him a couple of
exceptions.
In a case where the state wanted to buy something, such as a
piece of land he owned, SENATOR HALFORD wanted to know what
to do then. He wanted to know if the laws prohibit him from
selling the parcel as long as he was in the Legislature.
MS CRAMER said it could be condemned, and they discussed an
arms length negotiation. SENATOR SALO asked if it included
the University of Alaska, and she was told it did. There
was a general discussion on all kinds of contracts, and
SENATOR TAYLOR thought this would be important for the
Ethics Committee to know.
Number 130
SENATOR HALFORD offered a letter to MS CRAMER from a
department in state government that wants to do something on
his property, and he wanted to know if it could be done. He
offered to share the correspondence with anyone who was
interested, and SENATOR TAYLOR said there were obvious
problems. He asked MS CRAMER for information that might
cover the letter, and there was a discussion of applicable
sections in the code.
In a discussion of loan programs, AS 24.60.050, SENATOR
TAYLOR gave a hypothetical example of a former speaker of
the House, who got a buddy to create a loan fund, which was
then borrowed by the speaker and his aides for seafood
processing plant doing business with the state. MS CRAMER
added other criteria, but generally it wouldn't be illegal.
MS CRAMER reviewed AS 24.60.060 dealing with the Handling of
Confidential Information section as applied to the Ethics
Committee. There was a lengthy discussion of the instances
in which this section would apply to confidential and
priority information.
Number 172
MS CRAMER explained how a person who misused the
confidential information section could be subject to
criminal prosecution under AS 11.56.860.
SENATOR TAYLOR questioned MS CRAMER, in the light of current
information problems, about the triggering point when
something becomes confidential.
There was a precise discussion between SENATOR TAYLOR and MS
CRAMER as to when the confidentiality shield would go into
effect. They also discussed possible abuses that could be
perpetrated before the matter goes before the Ethics
Committee.
Number 234
MS CRAMER reviewed the provisions in AS 24.60.070 pertaining
to Close Economic Associations. She listed five categories
of people with whom a disclosure is required for a close
economic association: a supervisor, a legislator, a public
official, a registered lobbyist, or a legislative employee.
MS CRAMER explained the most important point in the gifts
section, AS 24,60.080, precludes a legislator or legislative
employee from accepting a gift worth $100 or more, or any
gift with any a value from a lobbyist during the legislative
session. She reviewed the exclusions to this prohibition in
subsection (C), and in the Lobbyist's Statutes, where a
lobbyist may not make a gift during a session other than
food or beverage for immediate consumption. MS CRAMER
discussed with SENATOR TAYLOR some tips on the reporting of
gifts.
Number 278
MS CRAMER outlined in AS 24.60.085 the restrictions on
earned income and honoraria by legislators or legislative
employees. In AS 24.60.090 the subject was nepotism, taking
into consideration during session and after session, which
is more restrictive than during session. Spousal
equivalents were treated in the same manner as all others
related to the legislator.
There was a lengthy discussion among the committee members
when MS CRAMER read the opening explanation of AS 24.60.100
about representation. She read "A legislator or legislative
employee, who represents another person for compensation
before an agency, board, or commission of the state shall
disclose the name of the person represented, the subject
matter of the representation, and the body before which the
representation is to take place to the committee."
SENATOR TAYLOR gave a broad definition of "representation"
and thought there was a definite change in the new code over
the old law. He described how he had over reported business
information under the old law, disclosed personal
information, and asked if this would be the norm for
attorneys, engineers, and real estate agents.
Number 415
SENATOR LITTLE addressed cases where further clarification
of the ethics code was desired and asked if it would be
proper for the Judiciary Committee to begin some discussions
on the interpretation of the code. MS CRAMER said this
would have to be answered by the committee, but she thought
the committee would be a logical place for such discussions.
SENATOR TAYLOR listed some reasons why the Ethics Committee
might not want the input from the Judiciary Committee, but
he thought the committee should alert their fellow
legislators about significant loopholes.
SENATOR TAYLOR suggested there should be some clarity given
to the ethics board, and MS CRAMER said there was a section
in the revisor's bill that addresses an error in the
drafting of the new ethics code in the close economic
association section.
Number 436
SENATOR LITTLE continued to question whether the Judiciary
Committee could clear up some of the cloudy parts of the
code. MS CRAMER said the legislature could pass a bill
amending the code to provide more clarity, and they agreed
that legislation would make it binding. SENATOR LITTLE
suggested to SENATOR TAYLOR it be done, even if it was non-
binding recommendations.
SENATOR TAYLOR said he would be happy to work with a sub-
committee on such legislation.
Number 481
MS CRAMER explained, under the financial disclosure
sections, AS 24.60.200 to .260, the legislators should be
aware the financial disclosure sections had been moved to
the Ethics Code from AS 39.50., but she thought the intent
had remained the same. She said the Alaska Public Offices
Commission (APOC) would continue to be charged with the
interpretation and enforcement of the sections.
SENATOR TAYLOR noted there was a change in the amount, and
MS CRAMER explained how it could become a subject of an
ethics complaint. She reviewed the definitions which, she
said, may have unexpected effects.
SENATOR TAYLOR asked for advice on the five public members
yet to be reviewed, if they were not all approved. MS
CRAMER said replacement members would be selected by the
chief justice to be ratified by 2/3 vote of the Senate and
House. The members discussed several aspects of the
procedure.
SENATOR TAYLOR thanked MS CRAMER and the members of the
committee for reviewing the "Standard of Conduct Handbook."
There being no further business to come before the
committee, the meeting was adjourned at 3:30.
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