Legislature(2005 - 2006)BUTROVICH 205
02/17/2005 08:30 AM Senate JUDICIARY
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| Overview Presentation: Select Committee on Legislative Ethics | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
February 17, 2005
8:36 a.m.
MEMBERS PRESENT
Senator Ralph Seekins, Chair
Senator Charlie Huggins, Vice Chair
Senator Hollis French
Senator Gene Therriault
MEMBERS ABSENT
Senator Gretchen Guess
COMMITTEE CALENDAR
Continuation of Overview of the Select Committee on Legislative
Ethics (SCLE) - Review of the SCLE Opinion dated January 7, 2005
by Ms. Joyce Anderson, Administrator, SCLE.
ACTION NARRATIVE
CHAIR RALPH SEEKINS called the Senate Judiciary Standing
Committee meeting to order at 8:38:16 AM. Present were Senators
French, Huggins and Chair Seekins. The meeting began where it
left off yesterday.
^Overview Presentation: Select Committee on Legislative Ethics
8:38:54 AM
MS. JOYCE ANDERSON, Administrator, Select Committee on
Legislative Ethics (SCLE), answered questions about employees
who are covered by the Ethics Code.
8:39:46 AM
Her research led her to AS 25.60.990(a)(11), the ethics
definitions statute. It says, "Legislative employees do not
include individuals who perform functions that are incidental to
legislative functions including security, messenger, maintenance
and print shop employees and other employees designated by the
committee." The committee used that authority to exempt
employees who are Range 15 and below. It also added tour guides.
8:41:00 AM
SENATOR HUGGINS said the question of compelling people to vote
after announcing a conflict of interest led him to ask some
different people what they thought. Their response was that
people would dodge the vote if given the chance. He asked if she
agreed.
MS. ANDERSON agreed with him. Barbara Craver, SCLE legal
counsel, said that issue had always been in place. Advisory
opinion 04.02 discussed it saying that it was the Legislature's
decision if it wanted it changed.
8:43:28 AM
SENATOR THERRIAULT arrived.
8:43:51 AM
CHAIR SEEKINS asked how the committee could be structured in the
future.
8:45:19 AM
CHAIR SEEKINS asked whom AS 24.60.020 applies to.
MS. ANDERSON answered that it applies to current sitting
legislators, staff and certain employees of the Legislative
Affairs Agency.
CHAIR SEEKINS said that it governs individual actions of
individual legislators and individual employees. It could also
govern a former legislator.
MS. ANDERSON agreed and said allegations must be stated within a
certain timeframe if a legislator has already left office.
CHAIR SEEKINS asked whether there had been a complaint like that
in the past.
MS. ANDERSON replied yes - one complaint since June 2001.
CHAIR SEEKINS said he was trying to figure out what to correct
if someone is no longer in the body.
8:47:37 AM
CHAIR SEEKINS asked whether there is any indication the statute
affects the Uniform Rules of the Legislature.
MS. ANDERSON replied a recent advisory opinion said the Uniform
Rules are under control of the Legislature.
8:48:49 AM
CHAIR SEEKINS said Article 2, Section 12, of the Constitution
says the houses of each legislature shall adopt uniform rules of
procedure. "So, the Legislature's authority to adopt uniform
rules comes from the Constitution and not from statute." He
asked if she agreed.
MS. ANDERSON agreed.
8:50:59 AM
CHAIR SEEKINS noted that Rule 55 says the rules of parliamentary
practice in Mason's Manual 2000 govern the Uniform Rules of the
Legislature in all cases not covered by them. He interpreted
that to mean that there are two authorities under which the
Legislature has implemented its constitutionally authorized
powers.
Part 1, Section 4, says the Rules of Legislative
Procedure are derived from several sources and take
precedence in the order listed below. The principal
sources are as follows: a) constitutional provisions
and judicial decision thereof, b) adopted rules, 3)
custom, usage and precedence, d) statutory provisions,
e) adopted parliamentary authority and f)
parliamentary law.
Further, he said, Paragraph 4 says whenever there is conflict
between rules from these sources, the rule from the source
listed earlier prevails over the rules of the source listed
later.
8:53:51 AM
CHAIR SEEKINS said there may be a provision that is contrary to
the Legislature's adopted rules and contrary to custom, usage
and precedence that could put the committee in a position where
it felt it had to examine something that is in a lower
hierarchical position in authority than the ones above it. "I
don't want to have that kind of a conflict arise, because it's
not good for anybody." He wondered if something in statute
conflicted with the Uniform Rules.
8:55:25 AM
MS. ANDERSON added in the beginning, the committee was required
to propose open meeting guidelines by statute and they contained
the notice requirements.
8:57:02 AM
CHAIR SEEKINS asked if two members of the Senate asked for the
advisory opinion.
MS. ANDERSON replied yes.
CHAIR SEEKINS asked whether they brought the question as a point
of order to the body before they came to the SCLE.
MS. ANDERSON replied that she didn't know. Senators Hoffman and
Olson requested the opinion.
CHAIR SEEKINS asked Senator Therriault if he remembered that
question being brought as a point of order.
SENATOR THERRIAULT replied no.
8:59:14 AM
CHAIR SEEKINS asked whether she reviewed the Uniform Rules and
Mason's Manual for legislative procedure in preparation. He
wanted to know whether custom was considered as a higher level
of consideration than the statute.
MS. ANDERSON replied once the information was put together, a
copy was sent to legal counsel (Barbara Craver) who drafted the
opinion.
CHAIR SEEKINS said he saw both opinions that she drafted, one
that was refused and the other that she prepared after the
committee told her what it wanted.
MS. ANDERSON agreed that there were two different opinions.
9:01:15 AM
SENATOR THERRIAULT asked whether the opinions were in the
committee packets.
MR. BRIAN HOVE, staff to Senator Seekins, said he printed the
opinions off the SCLE website.
SENATOR THERRIAULT asked since there were two drafts, if there
were instructions to change the legal interpretation for the
last one.
MS. ANDERSON responded the committee just felt the advisory
opinion should be redrafted.
CHAIR SEEKINS asked whether the committee discussed Mason's
Manual.
9:02:17 AM
MS. ANDERSON replied she thought it came up, but she didn't
remember the discussion about it.
SENATOR THERRIAULT asked whether she had a tape of the meeting.
MS. ANDERSON replied yes. They are recorded and are in the
archives. She has copies of the minutes except for the January 7
meeting, which weren't finished yet.
9:03:08 AM
SENATOR FRENCH recapped there seems to be the suggestion that
the SCLE failed to consider that custom and usage would trump a
statute and that the committee was in error for relying on a
statute when it should have relied on custom.
9:03:46 AM
CHAIR SEEKINS indicated that is correct, but wanted to frame the
question differently and referred the committee to page 22,
Section 13, of Mason's Manual.
9:04:19 AM Recess 9:08:20 AM
CHAIR SEEKINS noted he was trying to determine whether the
Legislature had put the SCLE in the untenable position of trying
to determine something over which it has no authority and
whether the statutes need to clarify what the authority is. He
referenced Rule 3 on page 22 of Mason's Manual that says:
3. The power of a house of Legislature to determine
its rules and proceedings is a continuous power. It
can always be exercised by the house and is absolute
and beyond the challenge of any body or tribunal if
the rule does not ignore constitutional restraints or
violate fundamental rights.
4. A legislative house cannot tie its own hands by
establishing unchangeable rules. It may adopt and
change procedure at any time and with no other notice
than the rules may require.
5. Rules of procedure passed by one legislature or
statutory provisions governing the legislative process
are not binding on a subsequent legislature.
He skipped to rule 7.
7. Rules of procedure are always within the control of
the majority of a deliberative body and may be changed
at any time by a majority vote.
CHAIR SEEKINS said these rules lead him to believe the
Legislature has the absolute authority to control its own rules.
No one can challenge them and that even a statute, such as the
rd
Open Meetings Act, established by the 23 Legislature would not
thth
be binding on the 24 Legislature unless the 24 Legislature
were to adopt those provisions in its Uniform Rules. "That
appears to be the constitutional provision that I see."
9:11:56 AM
He read section 14, Rule 3, which says, "The purpose of rules is
to aid a body to perform its duties more efficiently and with
fairness to its members."
9:12:35 AM
CHAIR SEEKINS questioned if the courts couldn't review a
violation of the rule, how could it be subject to review by a
citizen's committee. Section 51 on page 47 says:
1. A public body cannot delegate its powers, duties or
responsibilities to any other person or groups
including a committee of its own members.
2. Where duties or responsibilities are imposed on a
public body as on a state legislate, that body is
bound to exercise those duties and responsibilities
and cannot divest itself of them by delegation to
others.
He interpreted that to mean that the Legislature could not
divest itself of that responsibility or delegate it to others
according to rules it adopted.
It appears to me that the statute and the rules are in
conflict. And under such case, because it's our
mandate under the constitution to establish rules, we
can't do what we've done or asked you to do. I may be
wrong, but I'm trying to get squared away.
9:13:59 AM
MS. ANDERSON said she thought he said:
Unless the open meeting statute is adopted every year
by the Legislature under the Uniform Rules, it doesn't
apply. Is that what you said, Mr. Chair?
CHAIR SEEKINS said:
It appears to me that if the proper procedure for the
senators who filed the question with you under the
rules would have been to raise a point of order with
the body, which at that the time, the president of the
senate, Senator Therriault, would have made a ruling.
And if the body did not unanimously agree with that,
the body would vote. If a majority voted for his
ruling, then it would be a precedent just like in a
court of law. If the body voted down his ruling, he
could attempt again. But a ruling would still have to
be made somewhere on the point of order. So, to take a
matter that is controlled by the Uniform Rules outside
of the body and delegate the responsibility to
interpret the Uniform Rules there, is something
according to the Uniform Rules we cannot do.
9:16:09 AM
SENATOR THERRIAULT responded that a lot of this has been argued
before in the courts and they have said the Legislature is a
pure democracy and with a vote of 50% plus one, it dictates whom
they can run its business. "That has been litigated all the way
up to the Supreme Court."
9:16:57 AM
CHAIR SEEKINS quoted from page 58 of "Alaska's Constitution: A
citizens' Guide - Fourth Edition," a state Supreme Court
decision regarding Malone versus Meekins, 650, p2nd, 351, 1982 -
the legislative coupe in 1981 to replace the Speaker of the
House. The charge was that it violated the Joint Rules. It says:
We can think of few actions, which would be more
intrusive into the legislative process than for a
court to function as a sort of super parliamentarian
to decide the varied and often obscure points of
parliamentary law, which may be raised in the course
of a legislative day. Thus, even though the Uniform
Rules may have been violated, such violation is solely
the business of the Legislature and does not give rise
to a justifiable claim.
CHAIR SEEKINS reasoned, "If the State Supreme Court says we
can't intervene in the Uniform Rules, how can we expect that a
citizens' committee could do that? That's my dilemma."
9:19:37 AM
SENATOR THERRIAULT explained that the courts have upheld the
separation of powers. A pure democracy resides in its
legislative body.
CHAIR SEEKINS agreed and said that concept is repeated over and
over again in Mason's Manual.
9:20:25 AM
SENATOR FRENCH asked if he is trying to make the point that the
SCLE is without power to stand in judgment of acts that happen
inside the building, in general, (following the chair's
analysis) or is this in reference to the specific advisory
opinion, 04.03. He asked if the chair's thrust is that the
structure of the SCLE needs to be redone through amendments to
the Uniform Rules or that the opinion is invalid, because it
looked at a statute when it should have looked at custom or some
other rule.
9:21:10 AM
CHAIR SEEKINS replied that his intent was to try to come out
with a final product that eliminates potential constitutional
conflicts and puts yardsticks where measurement is needed. He
thought the ethics statutes control individual behavior under
certain circumstances. However, the Ethics Committee never had
the power to rule on parliamentary procedure within the body,
because that can't be delegated according to the Uniform Rules.
Secondly, guidelines that weren't adopted under the Uniform
Rules would never have authority.
9:23:13 AM
CHAIR SEEKINS disagreed with the opinion on several points. He
didn't think the notice requirements in the Uniform Rules
required notice of the subject matter of a bill, but rather the
subject matter of the meeting.
The subject matter of the meeting has by usage always
been bills previously heard or considered or heard or
introduced or whatever. That has been the usage that
has been established by the Legislature, which would
then become part of the Uniform Rules and only by a
vote or by raising of a point of order with a ruling
to establish a precedent or by a vote of the members
would that rule be changed.... It's a complicated
situation, but it's one that needs to be squared away.
I think probably in my opinion, based on what I read
in the Uniform Rules, they have no authority to even
review the Uniform Rules. So, therefore, I don't want
to get into the substance of the opinion; I just think
that we could not give them that authority ever -
according to the Uniform Rules.
9:25:01 AM
SENATOR FRENCH offered a slightly different analysis.
We began 20 minutes ago with Section 13, page 22 of
Mason's and Rule 3... and the rule reads that:
The power of the house of the Legislature to
determine its rules of proceedings is a
continuous power and can always be exercised
by the house and is absolute and beyond the
challenge of any body or tribunal if the
rule does not ignore constitutional
restraints or violate fundamental rights.
Analyzing the 04.03 opinion, his view is that one of the
fundamental rights at stake here is due process of law. It's one
of those things that pervade everything. Everyone is entitled to
it. It boils down to two simple ideas.
Due process of law means notice and opportunity to be
heard.... And from what I heard in Finance, there was
no due process of law. That bill came up under a
format that allowed no citizen to know that was going
to be taken up. And that was the fundamental issue. If
the bill had been listed by number - if the bill had
been listed by title - case closed. And you can
properly say that each citizen who wanted to pay
attention would know that bill is going to be heard
and there was probably a moment when they said is
there any more testimony on this and that citizen had
the opportunity to weigh in.
So, it seems very simple to be able to avoid the
problem in 04.03 and that's just to list the bills
you're going to hear in a committee.
9:27:23 AM
CHAIR SEEKINS asked why he didn't raise that as a point of order
and allow the body to vote on it. He further refuted Senator
French's view that the public didn't have a chance to weigh in
at the Finance meeting saying that the whole day was dedicated
to the education budget and that the Bill Action Status Inquiry
System (BASIS) is available to everyone all the time.
9:29:58 AM
SENATOR THERRIAULT agreed and added that the methodology used by
the committee on that day has been used for a long time.
Specific notice wasn't given, but he personally told the
minority and majority leaders the previous day that education
funding was coming up the next day.
9:30:48 AM
CHAIR SEEKINS said he thought that an improper usage by a body
that isn't challenged by that body becomes a Uniform Rule of
that legislature.
9:33:05 AM
SENATOR HUGGINS said he was surprised by how clear the rules are
laid out.
9:34:44 AM
CHAIR SEEKINS said he wanted to know if more clarification is
needed.
9:35:39 AM
MS. ANDERSON said there are differing opinions and she also
thought clarification was needed.
9:37:37 AM
MR. CONNOR THOMAS, Chairman, SCLE, said the committee felt that
Section (d) gives it authority to interpret the rule. He asked
for a legal opinion about that. He suggested the legislature
consider another sentence saying the SCLE has no authority to
interpret the Uniform Rules.
CHAIR SEEKINS asked him if he was referring the opinion A or B.
Opinion A states that there was no violation, because it was
concerning an area under legislative control. His understanding
of the minutes is that the committee had Ms. Craver prepare
another opinion showing there was a violation.
MR. THOMAS replied the committee asked for two different
opinions.
Although we did ask her whether or not the committee
had the authority to make an interpretation of the
Uniform Rules - in this case whether or not subject
matter and jurisdiction included actual notice of the
bill. Her opinion was that we did. That's why I say if
your intent is to cut that off, and then another
sentence may do that."
CHAIR SEEKINS reiterated that it was his interpretation of the
minutes that the committee asked her for another opinion that
stated that.
MR. THOMAS replied that the committee asked her specifically
whether it had the authority to interpret the Uniform Rules.
9:40:07 AM
SENATOR THERRIAULT said they needed to ask Tam Cook, Legislative
Legal, to see if this is a correct interpretation. He also asked
for a copy of the two legal opinions, a copy of the written
minutes and a copy of the tape.
9:42:13 AM
CHAIR SEEKINS read from a portion of SCLE minutes that, "Member
Walker asked for clarification of Rule 23A, which requires
subject matter notice for bills." It says:
'Written notice of the time, place and subject matter
of all meetings of standing, special and joint
committees during a week shall be....' Is there a
difference in your opinion between the subject matter
of a meeting and subject matter of a bill?
MR. THOMAS replied yes.
9:43:11 AM
CHAIR SEEKINS asked where Mr. Walker got his interpretation of
Rule 23A to be the subject matter of a bill from the subject
matter of a meeting.
MR. THOMAS said he couldn't speak for Mr. Walker, but the
committee felt that the subject matter of the meeting was broad
enough to include the subject matter of the bill. It was the
general consensus of the committee in this instance that there
should have been some notice regarding what the subject matter
of the bill was in order to comply with rule 23A.
CHAIR SEEKINS asked if the committee looked at usage.
MR. THOMAS replied that it didn't discuss usage, because it felt
that if something was used wrong historically, that was not
justification for doing it that way.
CHAIR SEEKINS asked if it looked at Mason's Manual, Section 4,
Rule 2, that says usage has precedence over statute.
MR. THOMAS couldn't recall.
9:44:34 AM
SENATOR FRENCH asked if the adopted rule takes precedent over
custom.
9:45:08 AM
CHAIR SEEKINS replied that it does and if there's a question,
the adopted rules say to look at Mason's Manual.
SENATOR FRENCH responded, "If the rule is clear, you don't need
custom."
CHAIR SEEKINS retorted, "Obviously, the rule is not very clear."
9:45:55 AM
SENATOR THERRIAULT looked up Rule 23(A).
9:46:43 AM
CHAIR SEEKINS stated that the Uniform Rules say that usage
becomes the uniform rule unless it's objected to and everyone
has to know that.
9:47:19 AM
SENATOR HUGGINS asked if that was clear to Senator French.
SENATOR FRENCH replied he disagrees with the chair.
9:49:36 AM
SENATOR THERRIAULT remarked that every Legislature is an
independent body.
9:50:02 AM
CHAIR SEEKINS emphasized a point of order could be raised by any
legislator for anyone who has a question.
9:56:53 AM
He went on to the disclosure section - 24.60.040 and 050 - that
referenced no particular time for filing.
MS. ANDERSON said she would like to look at the disclosure
section, as well.
9:58:16 AM
SENATOR FRENCH said it seems to him that the chair is suggesting
that a legislator must raise a point of order to the floor about
a practice he or she finds objectionable prior to referring that
matter to the SCLE. Or did he feel it could only be resolved
inside the body through the decision on that point of order and
that's not appealable.
CHAIR SEEKINS responded he believed the only place an issue
having to do with legislative procedure can be resolved is
within the body and that is covered in the Uniform Rules.
SENATOR FRENCH reasoned the SCLE has no jurisdiction over
subject matter in the Legislature's doings.
CHAIR SEEKINS said that is how he would interpret the rules and
that the legislature could change its rules anytime with a
majority vote.
SENATOR FRENCH asked if he thought the statutes that do pertain
to the SCLE must be reauthorized by each Legislature because
they somehow bind each session.
CHAIR SEEKINS replied yes.
SENATOR FRENCH pressed on, "And unless they are reauthorized,
they're null."
CHAIR SEEKINS continued, "Unless they become part of the Uniform
Rules, they have no control over legislative procedure if
there's anything higher on the hierarchy list that would trump
it."
CHAIR SEEKINS said this has been a very interesting and
important discussion. There being no further business to come
before the committee, he adjourned the meeting at 10:01:41 AM.
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