Legislature(2003 - 2004)
05/08/2004 09:50 AM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
May 8, 2004
9:50 a.m.
TAPE(S) 04-69
MEMBERS PRESENT
Senator Ralph Seekins, Chair
Senator Scott Ogan, Vice Chair
Senator Gene Therriault
Senator Hollis French
MEMBERS ABSENT
Senator Johnny Ellis
COMMITTEE CALENDAR
SENATE BILL NO. 397
"An Act relating to open meetings guidelines applicable to
legislators, to the confidentiality of complaints and
proceedings involving alleging violations of AS 24.60, and to
hearings on formal charges by the Select Committee on
Legislative Ethics or its subcommittees."
HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 563
SHORT TITLE: LEGISLATIVE PROCEDURE & ETHICS GUIDELINES
SPONSOR(s): RULES
05/04/04 (H) READ THE FIRST TIME - REFERRALS
05/04/04 (H) JUD
05/05/04 (H) JUD AT 1:00 PM CAPITOL 120
05/05/04 (H) Moved CSHB 563(JUD) Out of Committee
05/05/04 (H) MINUTE(JUD)
05/06/04 (H) JUD RPT CS(JUD) NT 2DP 4NR
05/06/04 (H) DP: GRUENBERG, MCGUIRE; NR: HOLM, GARA,
05/06/04 (H) SAMUELS, OGG
05/08/04 (S) JUD AT 9:00 AM BUTROVICH 205
WITNESS REGISTER
Representative Norm Rokeberg
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of HB 563, companion legislation to
SB 397
Ms. Andree McCloud
No address provided
POSITION STATEMENT: Opposed to confidentiality provision in SB
397
Mr. Myrl Thompson
Big Lake, AK
POSITION STATEMENT: Opposed to SB 397
ACTION NARRATIVE
TAPE 04-68, SIDE A
CHAIR RALPH SEEKINS called the Senate Judiciary Standing
Committee meeting to order at 9:50 a.m. Senators Ogan, French
and Seekins were present. The committee took up SB 397.
SB 397-LEGISLATIVE PROCEDURE & ETHICS GUIDELINES
CHAIR SEEKINS moved to adopt a proposed committee substitute
(CS) to SB 397, labeled version H.
SENATOR FRENCH objected for the purpose of discussion.
REPRESENTATIVE ROKEBERG told members that version H includes the
amendments to HB 563 adopted by the House Judiciary Committee
and the Committee of the Whole on the House floor last night. HB
563 is the House companion bill to SB 397. He asked to first
respond to an issue that arose on the House floor yesterday,
that being the reason for the introduction of the bill. He
explained:
Mr. Chairman, historically, going back to I believe
... '94 when the latest version of our ethics statutes
were adopted, there was a requirement that in order
for the Legislature to meet the principles but not the
statutes regarding open meetings, there was an
exception made in allowance for closed caucuses,
closed meetings, and informal discussions for the
purpose of legislative strategy. The guidelines would
be developed by the Select Committee on Ethics,
forwarded to the Legislature for their approval and
edification.
Mr. Chairman, that's been done annually with the
exception of one year since that time. Those
guidelines have either been rejected and/or not taken
up by the body for a period of almost over 10 years.
Mr. Chairman, at the request of Representative Croft,
the legal opinion was given to the committee this last
fall indicating that notwithstanding that they haven't
adopted guidelines, the committee had jurisdiction to
assert its authority in the area of violations or
breaches of open meetings principles. Therefore, this
was from Tam Cook from Legislative Legal. The
committee asked their own counsel for an opinion,
which is part of the record in your package from Mr.
Brent Cole who indicated much the same thing, giving
the rationale to the committee that they did have the
right to assert jurisdiction. Whether the guidelines
have been adopted by the Legislature or not, it was up
to the sole discretion of the committee to basically
adopt guidelines as they wished fundamentally from
various sources in order to assert their jurisdiction.
Mr. Chairman, I think you're [indisc.] criminal law
and perhaps Senator French could verify this, I think
there's a sound constitutional provision that,
particularly in the area of criminal law, that a
statute or a code is not enforceable if it's vague on
its face or it's vague or ambiguous because people
can't understand it. That's the situation and the
conundrum we found ourselves in because here we had
the assumption of the jurisdiction, which I agreed to
personally. I think the committee does have that but
we have a situation where there's no guideline so we
have a situation where you're trying to enforce
basically the law and you don't know what the law is
and that's the problem.
Therefore Mr. Chairman, I felt it was necessary to
move forward because - let me just back up a moment.
When this occurred and the committee had served its
jurisdiction by formal vote, it looked at the
guidelines that had been submitted earlier and we
discussed that. We felt that they were not really
sufficient. They were, frankly, a pretty manila
package but there were a few problems with them so we
selected and appointed a subcommittee to work on these
guidelines once again and ... that subcommittee has
had six meetings - five or six meetings in the course
of the last several months endeavoring to find some
consensus and put them in guidelines.
Quite frankly ... Mr. Chairman, we were making what I
call glacial progress. We're moving at a snail's pace
debating the definition of what a meeting was, what
political strategy was, what a caucus was. We were
getting basically nowhere. Several iterations and
recommendations came from Senator Elton, Conner
Thomas, the chair of the subcommittee and myself and
we started making a little progress. But when the
committee noticed their meeting, the next formal
meeting last month, they noticed it for the 7th of May
and so it was about three or four weeks prior to the
meeting they gave out notice they were going to meet
on the 7th of May and take up business. They put on
the agenda just a discussion of the guidelines but at
the last subcommittee meeting, we had no
recommendations. There was no consensus on the
subcommittee. As a member of the subcommittee I
realized the Legislature was going to adjourn and we
wouldn't have any guidelines. So that was my
motivation for putting it into a bill.
Those comments on the floor last night - the committee
is on the verge of adopting guidelines so that's not
true at all. There was no consensus from the
subcommittee and, believe me, from my experience as a
member of the committee, I understood that we couldn't
find consensus and they wouldn't just pick up a
guideline and send it forward. But point in fact, Mr.
Chairman, the reason I introduced this was because of
the 7th of May meeting. Even if they had guidelines
that they'd had unanimous agreement on, we would not
have had time to take up a resolution, introduce it,
and put it before the Legislature in four days. It's
impossible under our rules. You can't do that.
CHAIR SEEKINS asked if the subcommittee members knew that.
REPRESENTATIVE ROKEBERG didn't know whether they knew or not but
said the notion that the committee was on the verge of adopting
guidelines was false. Second, had the committee had consensus,
no action could have been taken.
CHAIR SEEKINS asked who decides on the date of the meetings.
REPRESENTATIVE ROKEBERG said the chair of the committee, mostly
with the support of staff or the executive director, tries to
find a date that all members are available to meet.
CHAIR SEEKINS asked if the chair of that committee is unfamiliar
with the legislative process and timeframe that it takes for
both houses to deliberate.
REPRESENTATIVE ROKEBERG thought the notion that the ethics
committee would put any recommendations before the Legislature
was false or not contemplated. He said his point is that he does
not believe that anyone had contemplated whether the guidelines
had been finished. He continued:
At any rate, that was what I felt was the need to have
these guidelines in place. In June of 2000, the
committee went through this process again four years
ago and they ultimately decided we can't find
consensus. The Legislature needs guidelines and they
sent a letter to the Legislature saying you guys adopt
your own guidelines. They probably should have been
adding that as an addendum to their recommendations
over the last several years. We can't seem to get our
act together. Why don't you guys do it because they're
your rules anyway?
One of the issues in the legal opinion in the packet
from Ms. Tam Cook is that the current statute says the
Legislature should adopt the initial guidelines but
the legal opinion goes on to say that because of the
language in the statute, after the adoption of the
initial guidelines, the Select Committee on Ethics
could make modifications to the guidelines without
getting ratified by the Legislature. I think that's a
real defect. It's like giving our power to create our
rules and ceding it to somebody else.
Quite frankly, Mr. Chairman, I was kind of disturbed
because some of the legal opinions and the back and
forth and the discussions in the committee and the way
the committee was acting, I believe they were
endeavored to assert their jurisdiction on a superior
basis over our Uniform Rules. That is a very dangerous
situation and this particular bill takes care of it.
It clearly delineates that the Uniform Rules are
superior to any regulations that they would promulgate
that we typically have administratively.
CHAIR SEEKINS asked if that is in sections (e) and (f) on page
2.
REPRESENTATIVE ROKEBERG said that is correct. He added that a
recent advisory opinion from Legislative Legal came to that
conclusion. He said that is an important factor because the
Uniform Rules are required by the Constitution and Alaska
statute requires a two-thirds vote of both bodies to adopt the
Uniform Rules.
REPRESENTATIVE ROKEBERG gave the following explanation of the
bill.
The first page of the bill indicates ... what a
meeting is - fact number one that meetings have to be
open to the public - that's just the baseline, that's
the given. And then the next provision is subsection
(b). It basically defines what a meeting is - a
majority or quorum of the members of the legislative
body is present, an action, including voting, is taken
or could be taken, or disjunctively if the primary
purpose of the meeting is the discussion of
legislation or state policy then you have a meeting.
You look over on - to follow the bill - on the bottom
of page 2, line 31, 'legislative body' - going on to
page 3, includes those [indisc.] - Senate, House,
etcetera, joint, all of the committees under the rules
- sub (v), a legislative commission, task force or
other group established by statute or resolution; or
operatively on line 12, page 3, a caucus of members of
one or more of the bodies set out above 1 through 5 of
this paragraph. Just as long as we're on that, you get
to the definition of caucus - back up to page 2, line
29, caucus means a group of legislators who share a
political philosophy or have a common goal and who
organizes a group. In terms of drafting there, I think
the operative word is 'share a political philosophy -
I think they need to be organized. The way it's
drafted now I think it's adequate for that.
So, moving on Mr. Chairman, moving over to page 2,
once we have a baseline that all meetings are open as
defined as part of a legislative body, subsection (c)
is the crux of the definition of what political
strategy is or the operative language is where
'legislators may meet in a closed caucus or in a
private, informal meeting to discuss and deliberate on
political strategy.' That's a reflection fundamentally
of the current law but then what we've done here is
try to clarify the meaning of that for the purposes of
this section, 'political strategy' includes these
various things: organization of the houses, assignment
of committees, adoption of vehicles, scheduling,
House-Senate relations, other procedural matters,
etcetera, etcetera, meetings between the majority and
minority and the governor, etcetera, etcetera,
meetings and then the operative words on lines 10 and
11 are 'deliberations with regard to political
strategy, and discussions of issues in the context of
political strategy.' Those reflect fundamentally even
the '95 guidelines to a degree where the idea was
where you need some sideboards but you don't want to
make them too narrow but the idea is that you cannot
go in to a closed caucus and discuss general public
policy issues privately unless they're in the context
of political strategy. The rub comes when you try to
make the distinction between what's political strategy
and what isn't. I mean that was one of the criticisms
before. It says that oh, you could preface an open -
you close the door on a meeting and say this is for
political strategy and then you talk about anything
you want. Well that's wrong and I think we need to
examine and review some of our practices and how we
conduct our practices.
I think in the main we've endeavored to try to meet
the spirit of the open meetings law the last 10 years
since the law was enacted, but I think in certain
instances we've fallen short and we need this bill
with the guidelines [which] hopefully will open up
that process when it should be open but make clear
when we should be able to close it and that was my
intention, Mr. Chairman. It depends on what side of
the issue you're on, you don't throw the thing out -
you're not going to be satisfied until it's totally
open but, on the other hand, you're trying to find a
ground here that is workable and we have some
guidelines. Let's see how these work and move forward.
Let's see, I talked about the caucus and the
legislative body. Let's see. Directing the committee's
attention to page 3, line 14, this does not include
any committee or group of legislators considering only
matters involving the organization of a committee or a
house, including selection of officers. That was one
thing in the old bill that was really unclear. I mean
it should be obvious to the casual observer that
either body - the caucuses or the political
organizations of the majority and minority should be
able to meet for organizational purposes behind closed
doors. Those can be knockdown, drag out - the first
one I ever attended I thought was the most Byzantine
political exercise I ever witnessed in my life.
Without going into details, Mr. Chairman, it was so
bizarre we don't want to - those things, ministerial
matters ... that should be allowable - organizing -
that's internal business, not necessarily the business
of the state.
So for legislative leadership meetings and officers of
the caucus, they should really be able to get
together. These things are how we conduct business
frankly. But before it was questionable whether those
were allowable. We think they are. They constitute
primarily political strategy. There's no reason the
minority and the majority, the leadership of those
caucuses shouldn't be able to sit down in their
offices and talk about stuff and then worry about
whether they are meeting the open meetings guidelines.
I mean that's just silly. These are practical matters
of human discourse that frankly are their First
Amendment rights. What we have to balance here is the
right of the public to know what's going on. But we
should be able to talk. That's our job. We're all
policy [indisc.] or we wouldn't be here.
Moving on to page 3, line 22, a meeting does not
include a gathering of members of a legislative body
for primarily ministerial or other social purposes. If
you go down to the Baranof to have a drink you're not
worried about it. But if you go down to the Baranof
and often you get a group of guys in a room down there
and start drafting bills, then you've got something to
be concerned about. You can't be doing that. That's
not right. But you can talk about policy. You can get
together and talk about things. That's allowable.
SENATOR OGAN questioned how a group that is trying to organize a
vote would fit in.
REPRESENTATIVE ROKEBERG said if Senator Ogan is referring to
chit sheets or serial meetings that is ludicrous.
SENATOR OGAN noted that one time he and another legislator drove
around town marking up a bill.
REPRESENTATIVE ROKEBERG said the idea is that every time a few
legislators get together, they are not a "caucus." He said the
point is that legislators cannot create a subterfuge to avoid
open meetings.
SENATOR OGAN said he wanted to put on the record that
legislators can draft a bill elsewhere.
REPRESENTATIVE ROKEBERG cautioned that if a majority of the
Senate Judiciary Committee drafted a bill at the Baranof, they'd
be violating the [Open Meetings Act].
CHAIR SEEKINS jested that the committee would never accomplish
anything at the Baranof.
REPRESENTATIVE ROKEBERG said he understood Senator Ogan's point
but some parameters are necessary. He said the intention is not
to sever discourse among members but members should not meet
elsewhere as a subterfuge.
CHAIR SEEKINS said that several people have testified this
session that there is some dark, locked, smoke-filled room where
people get together to plot a course of what legislation will
pass and what will not. He has yet to find that room. He said he
thinks the system is very transparent.
REPRESENTATIVE ROKEBERG responded, "Well I'd just make a comment
on that, Mr. Chairman. Since the Republicans have ascended from
the [indisc.] into the majority in both houses down here and
have a bunch of old stodgy conservatives, the lights go out
pretty early unless we're on the floor and we're a bunch of
stick-in-the-muds. There's not a lot of smoke-filled rooms."
CHAIR SEEKINS said it seems like there are no secrets in the
Capitol Building and that people question when he plans to
introduce legislation on a matter he was only thinking about.
REPRESENTATIVE ROKEBERG continued describing the bill.
Mr. Chairman, in Sec. 2 on page 3, line 27, we put a
provision in here that 'The committee may appoint an
individual to present the case against the person
charged if that individual does not provide and has
not provided legal advice to the committee except in
the course of presenting cases under this subsection.'
We had a situation where the committee counsel would
advise the committee about whether there's probable
cause and then turn around and prosecute so this was
Senator Torgerson's recommendation.
CHAIR SEEKINS said under this bill there is no way that someone
who became an advisor could ever become the prosecutor.
REPRESENTATIVE ROKEBERG added that is correct as it creates an
obvious conflict. He continued describing the bill.
Then on page 4, line 3, we had a provision in the old
statute that says you can schedule a hearing if not
more than 20 days after the service but they didn't
have an inside date so 'or less than 90 days' - so you
have to bring a hearing within 90 days after a
complaint. You cannot wait because of due process and
timing.
CHAIR SEEKINS noted you can't just let it hang over someone's
head.
REPRESENTATIVE ROKEBERG continued:
Right. There's no statute or provision about
timeliness for taking up the matter.
Section 3 - this is a provision - looking on line 14 -
except to the extent that the confidentiality
provisions are waived by the subject of the complaint,
which is the former law, the person filing the
complaint shall keep confidential the fact the person
has filed the complaint under this section as well as
the contents of the complaint. Mr. Chairman this is a
key element. Under the current statute, there's
nothing that prohibits an individual who files a
complaint to keep it confidential, notwithstanding the
fact for years we...somebody filed a complaint on the
television camera. They called a press conference and
signed the complaint form on the TV camera.
SENATOR FRENCH said he believed that happened two years ago.
SENATOR OGAN said it has been his experience that people file
ethics complaints for politically motivated reasons and have
press conferences - usually before an election. He thought there
was a lot of political motivation behind APOC violations too.
SENATOR FRENCH noted the complaint against him took two years to
be dismissed.
CHAIR SEEKINS asked if the bill contains a penalty for filing a
complaint publicly.
REPRESENTATIVE ROKEBERG referred to the language on page 4, line
30, and noted the committee can immediately dismiss the
complaint if the person speaks publicly and uses the complaint
as a political tool. He pointed out the criticism was what
constitutes a breach of confidentiality. He said that is clearly
in the eyes of the beholder and requires common sense. He said
the next sentence is the save-all because if someone files a
complaint publicly, the committee must dismiss it but if there
is a foundation to the complaint, such as a criminal act, the
committee can initiate the complaint.
CHAIR SEEKINS asked if the committee violates that provision,
the complaint would be dismissed again.
REPRESENTATIVE ROKEBERG said that is the issue. Another person
could also file the complaint again, but that person would be in
violation if he or she did not keep the complaint confidential.
CHAIR SEEKINS surmised that a complaint could be dismissed three
or four times if confidentiality was breached.
REPRESENTATIVE ROKEBERG said that is correct and added,
...or you could have the same cause of action, if you
will, going under a confidential screen and that's the
idea. Anybody has the right to bring a complaint but
it has to be confidential during the investigative
probable cause stage. Then it becomes public. Under
current statute, and there's no change there, once a
probable cause is found and it moves to the formal
hearing stage, then everybody is allowed to speak
about it because it's a matter of public record and
basically goes into a formal hearing.
REPRESENTATIVE ROKEBERG explained that the fourth section and
last section say a person has a right to counsel. He said there
was some question in the Irwin case last year about who
represents the person who the complaint was filed against. This
clearly sets up that somebody has the right to legal counsel so
that a person can't be forced into a quasi-judicial hearing
without right to counsel.
CHAIR SEEKINS noted the arrival of Senator Therriault.
REPRESENTATIVE ROKEBERG referred members to page 2, line 12,
subsection (d), and then told members that if a group of
legislators are involved in any way in the complaint process,
either as the complaintee or a witness to it, that member would
have to recuse himself from participating. He explained that a
member from that political party would probably have no
representation on the jurisdictional House or Senate
subcommittee so this allows the presiding officer to appoint a
replacement so that there is always a member from the majority
and minority in order to have representation.
CHAIR SEEKINS announced an at-ease.
REPRESENTATIVE ROKEBERG explained that if there was a complaint
against the whole caucus of one house for breach of open
meetings, there is no way now for any representation from that
caucus at the subcommittee hearing so nobody could serve on an
adjudicatory basis. This provision would allow the presiding
officer of the other body to appoint a member of the same
political party so that there would be representation on the
committee.
CHAIR SEEKINS asked how confidentiality would be maintained if
the presiding officer of the other house has to appoint another
member. He asked if that appointment can be made outside the
public eye.
REPRESENTATIVE ROKEBERG said he hoped so.
SENATOR THERRIAULT pondered whether the appointment should be
left to the presiding officer of the other body or whether it
would be preferable to say the other speaker shall solicit a
member from the other body and leave the choice to the speaker.
CHAIR SEEKINS said he would prefer that the presiding officer in
that body select a member of the other body.
SENATOR THERRIAULT questioned whether if there was an allegation
against every member of the Senate majority, he would want the
Speaker of the House, who might be a Democrat, to select someone
to represent the Senate majority or whether he would prefer to
look over the membership of the House and request that a
Republican from the House represent his caucus and vice versa.
REPRESENTATIVE ROKEBERG agreed with Senator Therriault's point.
CHAIR SEEKINS announced a brief at-ease.
CHAIR SEEKINS asked if amending the bill will throw the timing
off. He asked if version H of SB 397 is identical to the version
of HB 563 that passed the House.
REPRESENTATIVE ROKEBERG said that is correct but noted it is
under reconsideration in the House.
CHAIR SEEKINS announced another at-ease.
Upon reconvening, CHAIR SEEKINS suggested deleting the phrase
"request the presiding officer of the other house to" on lines
20 and 21 of page 2, so that the sentence reads, "However, if a
complaint alleges a violation that includes all legislative
members of the same political party of one house, the presiding
officer of that house shall appoint from the other house an
alternate member of the same political party as the disqualified
member...."
REPRESENTATIVE ROKEBERG noted the following language on lines 22
and 23 would have to be deleted: "and the presiding officer of
the other house shall make an appointment."
CHAIR SEEKINS moved the aforementioned change as a conceptual
amendment [Amendment 1].
SENATOR THERRIAULT pointed out that the word "member" on line 21
should be plural and moved to amend Amendment 1.
CHAIR SEEKINS summarized that the remainder of the sentence
should read, "...appoint from the other house an alternate
member of the same political party as the disqualified members
to serve with regard to the complaint" and asked if there was
any objection to that amendment.
With no objection, CHAIR SEEKINS announced that Amendment 1 was
amended.
10:30 a.m.
CHAIR SEEKINS took public testimony and announced a two-minute
time limit due to time constraints.
MS. ANDREE McCLOUD, representing herself, referred to line 31 on
page 4 and said she has been following the confidentiality
clause of this bill since last fall. She believes that keeping
all proceedings transparent is preferable to keeping
confidentiality. She said that while a complainant's complaint
may be driven by a political agenda, if everything is kept
secret, the public will think the legislature is trying to keep
people from knowing what happened. She stated:
Dismissing an ethics complaint because someone
violated the confidentiality provisions does not
negate the fact that an ethics violation might have
occurred. I think that dismissing the complaint is a
rather drastic step. The public has the right to know
what you guys are doing in order to elect ethical
people and that can't be done when you keep everything
secret or when you dismiss complaints. Furthermore,
what would stop the subject of a complaint from
finding a way to make the complaint public without
leaving her fingerprints on it, thereby affecting the
complaint to be dismissed? Let's say a staffer had a
complaint put against him or her. What would stop
anyone from making that public and dismissing the
complaint so that a legislator would not be impacted
negatively? So I am against this particular provision.
I think that a compelling government interest has not
been demonstrated and I thank you for your time.
CHAIR SEEKINS asked if objection to the adoption of version H
was maintained.
SENATOR FRENCH withdrew his objection.
SENATOR OGAN pointed out that the committee adopted an amendment
to a version that it had not yet adopted.
CHAIR SEEKINS stated, for the record, that version H was adopted
and then he moved to adopt Amendment 1 as amended [as previously
adopted]. Without objection, Amendment 1 as amended was adopted.
MR. MYRL THOMPSON, representing himself, told members that high
moral and ethical standards among public servants in the
legislative branch of government are essential to gain the
respect and confidence of the citizens. He maintained that an
open government requires that legislators and legislative
employees conduct public business in a manner that serves the
integrity and legislative process and avoids conflicts of
interest or even the appearance of a conflict of interest. He
cautioned that the legislature has lost the trust of the people
and that the best place to address this issue is in the Ethics
Committee, whose membership is balanced. He stated:
Having them produced by a committee of one, such as
this bill, is almost laughable and it's pretty
pathetic for that matter. Mr. Rokeberg said earlier
that him not being able to speak at a bar or whatever
about something is not protecting his First Amendment
right. Well, I have to say that the last line of this
bill that's being put in here is not protecting the
people's freedom of speech or the freedom of the
press. So there's a lot [indisc.] this bill and it
should never make it out of committee. It should never
have been proposed. These cheat sheets that are going
on in the House [are] a quasi-vote and you could spin
it any way you want but it's nothing but that. In the
past, testimony in the committee meetings have all
supported tightening the rules on open meetings.
CHAIR SEEKINS thanked Mr. Thompson and closed public testimony.
SENATOR FRENCH said Representative Rokeberg did a good job of
describing the bill and that he wanted to make a few comments.
He stated:
There is a balance in these issues and the balance
runs from total secrecy, which - it's worth mentioning
that our constitution was drafted in total secrecy.
Senator Ogan shared with me a book he has last night
that actually had the oath that the members signed
before they went in to draft the constitution. They
took an oath of secrecy before they met to draft it. I
looked at that last night and I was reminded of that
fact. And the other extreme, of course, is some system
where every single communication, whether written or
verbal between two legislators would be somehow
recorded and available for public inspection, and of
course I think that's too far on the other side, so I
guess it's interesting, at least to me, when I find
one portion of this bill that's I think too far open
and one portion of the bill is too far closed.
Taking the too far open part first on page 2, lines 29
and 30, there's a definition of caucus. Caucus says a
group of legislators that share a political philosophy
or have a common goal and who organize as a group. I
think there's a lot of wiggle room in there. People
who share a political philosophy - I guess you could
say on some days that you and I share a political
philosophy, or Senator Ogan and I do, or Senator
Therriault. A lot of days we don't but there are
sometimes when we're in total alignment. So, I'm
thinking that could be construed in a way to be used
sort of as a weapon. I would add a couple words to
this I think, and clear it up that a caucus could be a
group of not less than five legislators. That is, you
couldn't - a caucus of four can meet whenever they
want and discuss whatever they want. And the reason I
picked four is because the most restrictive vote we
have is a three-quarter vote and so any six
legislators can be a three-quarter vote and that would
be far short of that and so four people getting
together to scheme or plot or maneuver aren't going to
be able to touch a three-quarter vote in this building
and so I thought that's a way to sort of constrain
that from being used against three people who meet
together because I don't think you can have a group of
two - I think you have to have a group of three but a
group of three who share a political philosophy who
get together to talk about political matters, I just
think they should be able to do it - or four. I just
think that's too restrictive to say that four people
can sit down and kick around [indisc.].
REPRESENTATIVE ROKEBERG said he agrees with the concept that
Senator French was describing but he does not agree with the
methodology. He advised for the need to avoid numbers games and
said he doesn't believe the language is intended to restrict a
group of four or more legislators from discussing something that
relates to legislation or deliberative activity.
TAPE 04-69, SIDE B
REPRESENTATIVE ROKEBERG said his view of the definition of a
caucus includes organization and he does not believe that just
meeting together and talking constitutes a group. He said the
intent is that the group has to be a caucus.
CHAIR SEEKINS suggested conceptually amending that sentence to
say a more formalized group.
REPRESENTATIVE ROKEBERG said he worked with Common Cause on this
but the way it is written, a caucus could mean two or three
people who share a political philosophy, which is Senator
French's point.
CHAIR SEEKINS said the construction of that language indicates
that the group has to be organized. He pointed out that the
group of legislators has to share a political philosophy or have
a common goal, two qualifiers, and who organize as a group.
REPRESENTATIVE ROKEBERG agreed.
CHAIR SEEKINS said he and Senator French could belong to the
Children's Caucus but not the Health Caucus but if the two sat
down to talk about political philosophy as an unorganized group
because they were having lunch with Senators Ogan and Therriault
that would not be a caucus.
SENATOR FRENCH was unsure.
SENATOR OGAN noted that if a number is included, such as a group
of four, that might work for the Senate but not for the House.
He then pointed out that the lounge is a sanctuary for
legislators; a place where the press or lobbyists can't hound
them but that is not a public place.
REPRESENTATIVE ROKEBERG repeated that the group must be
organized.
SENATOR FRENCH moved to add "not less than five" between the
words "of" and "legislators" on line 29, page 2 [Amendment 2].
SENATOR OGAN objected.
REPRESENTATIVE ROKEBERG repeated that he does not want to get
involved in a numbers game, since the make-up of the bodies
differs.
Amendment 2 failed with Senators Ogan, Therriault and Seekins
opposed and Senator French in favor.
SENATOR FRENCH said his bigger concern is the confidentiality
provision on pages 4 and 5. He said his thoughts on the matter
align with the comments of some of the testifiers today. He said
the right to complain about the government is absolutely at the
center of the First Amendment. He said if a demonstration
happens to coincide with a complaint about a violation of the
Open Meetings Act, that is just tough luck. He reminded members
that politics is a tough business and that people launch attacks
on legislators for all kinds of reasons. If those complaints are
valid, they will prevail; if not, people will see through them
in a hurry. He said the language is so circular - if a person
publicizes a complaint it can be dismissed but then can be
revitalized 10 minutes later by someone else. He said he
understands that such complaints can be used as political
weapons; the APOC violation complaint against him was baseless
and took 18 months to get dismissed but he sees it as part of
what legislators sign up for.
SENATOR THERRIAULT said a person could parade up and down the
street with a placard alleging that he did something unethical
even if that person filed an ethics complaint against him.
However, saying Senator Therriault is unethical on a placard is
different than saying there is a pending complaint against him.
He does not see how freedom of speech is being abridged at all.
He thought that to use an ethics complaint as a stamp of
legitimacy until it is deemed to be so allows a person to use it
as a political tool.
SENATOR OGAN said he is particularly sensitive to this issue,
having been subjected to an allegation of criminal behavior
through a different process. He said if he can't handle the
heat, he should "get out of the kitchen." He said he, too, has
concerns about that provision and would rather take a different
approach and see the bill contain ramifications for people who
abuse the complaint process for political reasons and he agrees
with Senator French that people have a basic right to redress
their government for their grievances. He said he has no problem
with "upping the ante" for people who file complaints for
political reasons and would prefer that to keeping the process
completely confidential.
REPRESENTATIVE ROKEBERG pointed out that the Ethics Committee
endorsed the changes in the bill and that there is a frustration
within the ethics committee itself about having to deal with
complaints that they know on the face are politically motivated.
The committee feels their hands are tied so this will give them
a tool to dismiss those cases. He believes there is a compelling
state interest because the process is now being abused since
there is no sanction. However, the bill will still allow the
Ethics Committee to take up those complaints that have merit and
should be further investigated on a confidential basis until the
committee has probable cause. He likened it to the grand jury
process.
CHAIR SEEKINS wondered whether there is any other penalty for a
person who files a complaint as a political weapon.
REPRESENTATIVE ROKEBERG said the person would be making a false
accusation.
CHAIR SEEKINS announced a 5-minute recess.
REPRESENTATIVE ROKEBERG asked that the Senate Judiciary
Committee formally adopt the minutes of the May 7, 2004 meeting
of the Select Committee on Legislative Ethics. He explained that
during that meeting, the committee endorsed the amendments that
the Senate Judiciary Committee has been discussing. He felt
adopting those minutes is important to provide a more complete
legislative history.
CHAIR SEEKINS ruled that the aforementioned ethics committee
minutes would be included in the record by reference.
SENATOR OGAN asked Representative Rokeberg to explain the
contents of those minutes.
REPRESENTATIVE ROKEBERG said the committee did some
wordsmithing, made conceptual recommendations and then several
amendments were drafted for action on the House floor based on
those recommendations.
SENATOR OGAN said he still would prefer to look at alternatives,
maybe along the line of a civil penalty, and would ask his staff
to look into that.
11:00 a.m.
CHAIR SEEKINS noted that as chair of the Senate Judiciary
Committee, he is aware of the difficulty of scheduling meetings.
This committee meets in the morning and tries to accommodate the
Minority Caucus, which routinely meets before session. He said
both parties in both houses occasionally hold caucus meetings to
discuss political strategy or to do `whatever takes place behind
those closed doors. He thanked Representative Rokeberg for his
effort to make sure those meetings are addressed properly in the
Uniform Rules. He then recessed the meeting to the call of the
chair and said the committee may reconvene during a break in the
Senate floor session to address this issue.
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