Legislature(1995 - 1996)
02/13/1995 01:30 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE February 13, 1995 1:30 p.m. MEMBERS PRESENT Senator Robin Taylor, Chairman Senator Lyda Green, Vice-Chairman Senator Al Adams Senator Johnny Ellis MEMBERS ABSENT Senator Mike Miller COMMITTEE CALENDAR SENATE BILL NO. 41 "An Act relating to reports by fishing vessels that are not registered under the laws of the state." Confirmation Hearings: Bruce Botelho, Attorney General Designee, Department of Law Joseph N. Faulhaber, Board of Governors, Alaska Bar Association PREVIOUS SENATE COMMITTEE ACTION SB 41 - See Resources minutes dated 2/3/95. WITNESS REGISTER Terry Otness Legislative Aide to Senator Taylor State Capitol Juneau, Alaska 99801-1182 POSITION STATEMENT: Testified for sponsor of SB 41 ACTION NARRATIVE TAPE 95-7, SIDE A Number 001 SJUD - 2/13/95 SB 41 REPORTS BY OUT OF STATE FISHING VESSELS CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 1:35 p.m. Present were Senators Taylor, Green, and Adams. The first order of business was SB 41. Number 016 SENATOR ADAMS moved and asked unanimous consent that the committee adopt CSSB 41 (Jud) at this time. There being no objection, the committee substitute was adopted. TERRY OTNESS, staff to Senator Taylor, sponsor of SB 41, testified. He explained the committee substitute addresses problems with definitions raised by the U.S. Coast Guard in a memorandum dated February 11, 1995. The term "foreign fishing vessel" is replaced by "unlicensed fishing vessel," and the term "registered under the laws of the state" is replaced by "licensed under AS 16.05.490 - 16.05.530." SENATOR TAYLOR stated the purpose of CSSB 41 is to compel non-Alaskan fishing vessels to report the volume of fish taken, particularly Canadian vessels who use Alaska harbors. SENATOR ELLIS arrived at 1:37 p.m. Number 062 SENATOR ADAMS moved and asked unanimous consent that CSSB 41 (Jud) be reported out of committee with individual recommendations. There being no objection, the motion passed. Number 068 The next item of business before the committee was the confirmation of Joseph Faulhaber to the Board of Governors of the Alaska Bar Association. SENATOR ADAMS asked what the proper procedure is for confirmation hearings. He stated the Governor has submitted a list to the Legislature of names of people to be confirmed. He asked if those names have been read across the Senate floor. SENATOR TAYLOR replied he believed Mr. Faulhaber's name was read across the floor, but he believed his name was submitted by Governor Hickel. SENATOR ADAMS asked if the committee had a copy of the transmittal letter from Governor Knowles regarding the nominees. SENATOR TAYLOR stated he did not. Because Mr. Faulhaber was not available to testify at this time, his confirmation hearing was postponed until a date when he would be available. Number 094 SENATOR TAYLOR announced the next item was the confirmation of Bruce Botelho, the Attorney General Designee. He stated the confirmation hearing was being held as the result of a memorandum received from the Senate President's Office, requesting the committee to hold the hearing. SENATOR ADAMS stated the Senate President is incorrect in requesting the hearing since there is no list before the Legislature asking for the confirmation of Mr. Botelho. He cited a 1979 memorandum to Jay Hammond, from then Attorney General Av Gross, which states that since there was no resignation from the Attorney General at the time of the election, that person had the legal right to remain in that position. SENATOR ADAMS noted similar opinions have been issued in Congressional inquiries. He added that Mr. Gross clarified that the attorney general works for the State of Alaska, not for the governor as an individual, in the 1979 memorandum. SENATOR ADAMS reiterated there was no need for a confirmation hearing since there is no letter of transmittal from the Governor, and that no conflict of interest exists. Number 135 SENATOR TAYLOR noted he could not speak on behalf of the Senate President as to why she requested the hearing, but he stated all committee members were present when Governor Knowles introduced Mr. Botelho at the Joint Session as his "Acting" Attorney General, and all newspaper reports indicated the same status at the time. SENATOR TAYLOR felt, for that reason, as well as others, the Senate President's request to be appropriate. He added that late in November, after the election, the Governor's Transition Team asked Governor Hickel to collect letters of resignation from commissioner level appointees and third floor staff. There were no exceptions noted in that action. Those resignations became effective December 5. The Knowles Administration then undertook a search for a new Attorney General. The Governor admitted he had considered Jeff Feldman, Eric Saunders, and Sandy Seville for the position and KTUU reported that Jeff Feldman was offered a salary of $84,000 for the position. SENATOR TAYLOR questioned how Governor Knowles could have made such an offer if he had already employed Mr. Botelho. SENATOR ADAMS asked if there was a letter of resignation from Mr. Botelho. SENATOR TAYLOR replied, "I think there probably was but it's probably to be found today in the same place that the first two reports on the wolf incident ended up." SENATOR TAYLOR felt the question of whether the vacancy actually occurred to be only half of the question. He commented that the attorney general is the attorney for the governor, rather than for the people of Alaska, which is why a special prosecutor was required when ex-Governor Sheffield was in trouble. In fact, his attorney general represented him, not the people of the State of Alaska. He added Mr. Botelho was confirmed to represent ex- Governor Hickel. That attorney-client relationship was terminated by operation of law when Wally Hickel was no longer governor of the state and Tony Knowles was sworn in. The Legislature has never confirmed Mr. Botelho as the attorney to represent Tony Knowles. Number 175 SENATOR ADAMS noted that who the attorney general represents is a matter of opinion. He reiterated his belief that the attorney general represents the people of Alaska and not just the individual Governor who is in power. SENATOR TAYLOR replied, "If that were true, then certainly Bill Sheffield would not have been represented by Norm Gorsuch, and a special prosecutor would not have been necessary, because the attorney general would have been independent of the governor and able to represent the people of the State of Alaska in investigating that Governor. In fact he could not, it would have been a severe conflict of interest." SENATOR TAYLOR cited AS 44.23.020 as defining the attorney general as the legal officer of the governor, and he noted that considerable case law reflects that position. He indicated an additional question to be whether the interests of Mr. Hickel, and the lawsuits filed by him, are different from the interests of Governor Knowles. He noted the Canons of Ethics are very clear about professional conduct standards (1.9) and state that: "A lawyer who has formally represented a client in a matter, shall not thereafter represent another person in the same, or a substantially related matter, in which that person's interests are materially adverse to the interests of the former client, unless the former client consents after consultation." SENATOR TAYLOR noted he had spoken to former Governor Hickel that day. Mr. Hickel indicated he had not been consulted by Mr. Botelho, nor had he consented to Mr. Botelho representing anyone, in any lawsuits, adverse to those lawsuits that Mr. Botelho represented him on. SENATOR TAYLOR pointed out Rule 107 defines whether or not the interest of the present client is adverse to that of the former client and provides the following example: "a lawyer could not properly seek to rescind, on behalf of a new client, a contract drafted on behalf of a former client." He felt this to be a clear example of what has occurred. He explained Mr. Botelho represented Mr. Hickel: in lawsuits before the federal court; in selecting the person to draft the appeals; in working with that person ; and in briefing the Legislature and this committee on those lawsuits. He then dismissed those suits on behalf of a new client. SENATOR TAYLOR stressed that Mr. Botelho should not only have to stand for confirmation but that his activities should also be examined by the Alaska Bar Association. Number 223 SENATOR ELLIS strongly disagreed with Senator Taylor's personal opinions and statements, and stated he did not feel that Mr. Botelho's name was properly before the committee. He added that regarding the referral of this name for confirmation by the Senate President, the Senate Majority reverted to Communications (in the Senate Calendar), when in fact Governor Knowles did not submit this name to the Legislature for confirmation. He questioned whether the Senate President took names for committee referral from the seating chart of the gallery during the Governor's State of the State Address, or from news report, or from common knowledge. He noted that any Senators who thought they were acting on Communication were mislead by Senate President Pearce. He stated he would not be participating in what he felt to be political grandstanding. SENATOR ADAMS informed committee members that minority members are willing to work on bills of substance, such as SB 41, but they will not engage in political protest. SENATOR TAYLOR replied no one could participate because the attorney general designee has refused to attend. SENATOR ADAMS remarked he should not have to. SENATOR ADAMS and SENATOR ELLIS left at 1:50 p.m. Because there was no longer a quorum, SENATOR TAYLOR adjourned the meeting at 1:50 p.m.