Legislature(1995 - 1996)
02/13/1995 01:30 PM Senate JUD
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* first hearing in first committee of referral
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+ 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
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.
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