Legislature(1995 - 1996)

02/13/1995 01:30 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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                 
 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.                                                                     

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