Legislature(1995 - 1996)

04/30/1996 12:19 PM RLS

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                     SENATE RULES COMMITTEE                                    
                         April 30, 1996                                        
                           12:19 p.m.                                          
                                                                               
  MEMBERS PRESENT                                                              
                                                                               
 Senator Mike Miller, Chair                                                    
 Senator Drue Pearce, Vice Chair                                               
 Senator Jim Duncan                                                            
 Senator Judy Salo                                                             
                                                                               
  MEMBERS ABSENT                                                               
                                                                               
 Senator Bert Sharp                                                            
                                                                               
  COMMITTEE CALENDAR                                                           
                                                                               
 CS FOR HOUSE BILL NO. 295(2d JUD)                                             
 "An Act relating to forfeitures of property; and relating to the              
 custody and disposition of property in the custody of municipal law           
 enforcement agencies."                                                        
                                                                               
 HOUSE BILL NO. 352                                                            
 "An Act giving notice of and approving a lease-purchase agreement             
 with the City of Palmer for a fire management facility at the                 
 Palmer Airport."                                                              
                                                                               
 CS FOR HOUSE BILL NO. 457(STA)                                                
 "An Act relating to the unlicensed practice of certain occupations            
 for which licenses are required."                                             
                                                                               
 CS FOR HOUSE BILL NO.  493(JUD) am                                            
 "An Act relating to treatment for alcoholism or drug abuse."                  
                                                                               
 CS FOR HOUSE BILL NO. 538(2d FSH)                                             
 "An Act relating to vessels participating in the Bering Sea Korean            
 hair crab fishery; relating to a vessel permit limited entry                  
 system; and providing for an effective date."                                 
                                                                               
 SENATE BILL NO. 141                                                           
 "An Act relating to legislative ethics; and providing for an                  
 effective date."                                                              
                                                                               
  PREVIOUS SENATE COMMITTEE ACTION                                             
                                                                               
 HB 295 - See Judiciary minutes dated 4/24/96 and 4/29/96.                     
                                                                               
 HB 352 - Finance report 4/29/96.                                              
                                                                               
 HB 457 - See Labor and Commerce minutes dated 4/18/96 and Judiciary           
      minutes dated 4/29/96.                                                   
                                                                               
 HB 493 - Finance report 4/29/96.                                              
                                                                               
 HB 538 - See Resources minutes dated 4/29/96.                                 
                                                                               
 SB 141 - See State Affairs minutes dated 4/20/95, 4/27/95, 1/30/96,           
      2/6/96, 2/27/96, 3/26/96, and 3/28/96.                                   
      Rules minutes dated 4/28/96.                                             
                                                                               
  WITNESS REGISTER                                                             
                                                                               
 Senator Drue Pearce                                                           
 State Capitol                                                                 
 Juneau, AK 99801-1182                                                         
  POSITION STATEMENT:   Offered information on CSSB 141(RLS)                   
                                                                               
 John Gaguine, Assistant Attorney General                                      
 Governmental Affairs Section                                                  
 Department of Law                                                             
 P.O. Box 110300                                                               
 Juneau, AK 99811-0300                                                         
  POSITION STATEMENT:   Outlined concerns with CSSB 141(RLS)                   
                                                                               
 Neil Slotnick, Assistant Attorney General                                     
 Commercial Section                                                            
 Department of Law                                                             
 P.O. Box 110300                                                               
 Juneau, AK 99811-0300                                                         
  POSITION STATEMENT:   Outlined concerns with CSSB 141(RLS)                   
                                                                               
 Brooke Miles, Juneau Branch Administrator                                     
 Alaska Public Offices Commission                                              
 P.O. Box 110222                                                               
 Juneau, AK 99811-0222                                                         
  POSITION STATEMENT:                                                          
                                                                               
 Mike McMullin, Personnel Manager                                              
 Division of Personnel                                                         
 Department of Administration                                                  
 P.O. Box 110201                                                               
 Juneau, AK 99811-0201                                                         
  POSITION STATEMENT:   Outlined concerns with CSSB 141(RLS)                   
                                                                               
  ACTION NARRATIVE                                                             
 TAPE 96-9, SIDE A                                                             
                                                                               
  CHAIRMAN MILLER  called the Senate Rules Committee meeting to order          
 at 12:19 p.m.                                                                 
                                                                               
 CHAIRMAN MILLER brought  CSHB 295(2d JUD)  (PROPERTY HELD BY LAW              
 ENFORCEMENT AGENCIES) before the committee.  Hearing no discussion,           
 he asked for the pleasure of the committee.                                   
 SENATOR PEARCE moved and asked unanimous consent CSHB 295(2d JUD)             
 be approved for calendaring.  Hearing no objection, it was so                 
 ordered.                                                                      
                                                                               
 CHAIRMAN MILLER brought  HB 352  (APPROVE PALMER AIRPORT FIRE BLDG.)          
 before the committee.  Hearing no discussion, he asked for the                
 pleasure of the committee.                                                    
                                                                               
 SENATOR PEARCE moved and asked unanimous consent HB 352 be approved           
 for calendaring.  Hearing no objection, it was so ordered.                    
                                                                               
 CHAIRMAN MILLER brought  CSHB 457(STA)  (UNLICENSED PRACTICE OF               
 OCCUPATION) before the committee.  Hearing no discussion, he asked            
 for the pleasure of the committee.                                            
                                                                               
 SENATOR PEARCE moved and asked unanimous consent CSHB 457(STA) be             
 approved for calendaring.  Hearing no objection, it was so ordered.           
                                                                               
 CHAIRMAN MILLER brought  CSHB 493(JUD) am  (INVOLUNTARY                       
 COMMITMENT:ALCOHOL/DRUG ABUSE) before the committee.  Hearing no              
 discussion, he asked for the pleasure of the committee.                       
                                                                               
 SENATOR PEARCE moved and asked unanimous consent CSHB 493(JUD) am             
 be approved for calendaring.  Hearing no objection, it was so                 
 ordered.                                                                      
                                                                               
 CHAIRMAN MILLER brought  CSHB 538(2d FSH)  (HAIR CRAB VESSELS; LTD            
 ENTRY FOR VESSELS) before the committee.  Hearing no discussion, he           
 asked for the pleasure of the committee.                                      
                                                                               
 SENATOR PEARCE moved and asked unanimous consent CSHB 538(2d FSH)             
 be approved for calendaring.  Hearing no objection, it was so                 
 ordered.                                                                      
                                                                               
 CHAIRMAN MILLER brought  SB 141  (LEGISLATIVE ETHICS) before the              
 committee as the final order of business.                                     
                                                                               
 SENATOR PEARCE moved and asked unanimous consent for the adoption             
 of CSSB 141(RLS), version "Z", dated 4/27/96.  Hearing no                     
 objection, it was so ordered.                                                 
                                                                               
 SENATOR PEARCE explained the only changes made to the Rules CS                
 pertaining to the Legislature were requests made to the State                 
 Affairs Committee by the Ethics Committee.  The primary differences           
 are two-fold:  the committee substitute does not have the ban on              
 spousal lobbying and it expands the Executive Branch Ethics Act.              
 It contains a new definition for "state official" in terms of the             
 Ethics Act.  This relates to people who are Range 21 and over such            
 as division directors, commissioners, the lieutenant governor,                
 governor, etc.  Their conflict of interest statement would now                
 conform and look the same as for legislators in that they would               
 have to report anything over $1,000; they would also have to begin            
 reporting gifts; and the state Personnel Board would become the               
 advisory committee if someone needed an advisory opinion, as well             
 being the arbitrator.  It also provides that employees of the                 
 Legislature being compensated at Range 19 and above will be                   
 required to do conflict of interest statements.                               
                                                                               
 Number 135                                                                    
                                                                               
 JOHN GAGUINE, Assistant Attorney General, Department of Law, stated           
 he would be testifying on the sections of the bill which amend AS             
 39.50, the conflict of interest disclosure statement.   He noted              
 for the record that he would be affected by the change to the                 
 statute in terms of his having to file a conflict of interest                 
 statement.                                                                    
                                                                               
 Mr. Gaguine stated the department sees possible constitutional                
 problems with the conflict of interest filing requirement for                 
 employees Range 21 and above.                                                 
                                                                               
 The first possible problem concerns the constitutional right of               
 privacy.  Some courts have held that there has to be a correlation            
 between the employee's function and the disclosure requirements.              
 He noted there is a specific right of privacy clause in the Alaska            
 Constitution, so it is possible that the court might find that this           
 is overly broad, that the current law already covers policy makers.           
 He said some of the employees affected by this bill clearly are non           
 policy makers.                                                                
                                                                               
 The other possible constitutional problem would be an equal                   
 protection argument.  He noted high ranking legislative aids have             
 now been included; the bill still does not apply to high ranking              
 judicial people, although judges are covered.  He said there is               
 also a possible argument that could be made that covering partially           
 exempt people but not classified people causes a problem.  By and             
 large, classified people are not in policy making positions,                  
 however, there are a large number of deputy directors who are in              
 the classified service and who are policy makers.  There is a                 
 fairly large number of people in the new group that this bill would           
 expand it to who are clearly not policy makers.                               
                                                                               
 Mr. Gaguine, referring to Section 63 and the definition of "public            
 official," suggested the language will probably present some                  
 problems in its interpretation.                                               
                                                                               
 Number 240                                                                    
                                                                               
 NEIL SLOTNICK, Assistant Attorney General, Department of Law,                 
 stated he is the state's ethics attorney and it is his                        
 responsibility to implement the state Executive Branch Ethics Act.            
 As ethics attorney, he is no way the arbitrator of the Ethics Act -           
 - that always goes with the Personnel Board.  If there is an                  
 accusation filed under the Ethics Act, it will be heard before the            
 Personnel Board, and the board will render a decision on whether              
 the state employee or public officer violated the Ethics Act, as              
 well as setting a fine if it is determined there was a violation.             
 If a member of the public, or an agency, or any party has a                   
 complaint that a public officer has violated the Ethics Act, that             
 complaint is sent to the attorney general, and if the attorney                
 general finds that the complaint states facts that if true would              
 constitute a violation of the Ethics Act, an investigation is                 
 opened.                                                                       
                                                                               
 SENATOR PEARCE pointed out that the problem is that if a political            
 appointee has a complaint filed against him, another political                
 appointee decides whether or not there was really a violation and             
 it never gets to the Personnel Board.  It never gets to the outside           
 party like with the Legislature's ethics committee.  MR. SLOTNICK             
 responded that the attorney general has taken the Executive Branch            
 Ethics Act responsibility very seriously, and he does not know of             
 any instances where that responsibility has been abused.                      
                                                                               
 Number 313                                                                    
                                                                               
 MR. SLOTNICK also voiced concern that the legislation takes the               
 advisory opinion capacity away from the attorney general.  He said            
 the department has a long history of implementing the Ethics Act              
 and he sees some significant problems in removing that function               
 from the attorney general's office.                                           
                                                                               
 He also stated the department has some very serious concerns about            
 drafting legislative ethics standards into the Executive Branch               
 Ethics Act.  He suggested the legislative branch is an entirely               
 different entity than the executive branch.  He pointed out that              
 the current Ethics Act applies evenly to all executive branch                 
 employees; however, SB 141 creates two tiers of executive branch              
 employees.                                                                    
                                                                               
 Mr. Slotnick questioned if it was a necessary change to bring in              
 these legislative ethics standards to the executive branch, and he            
 suggested that the Executive Branch Ethics Act covers most if not             
 all of what the committee substitute is trying to do in bringing              
 the legislative ethics standards over to the executive branch.                
                                                                               
 Number 427                                                                    
                                                                               
 SENATOR PEARCE commented she thinks that political appointees                 
 should be treated just like legislative staff and that they should            
 come under the law and have the same sort of standards that the               
 Legislature has.  She added it was not the intent to draft the                
 legislation such that the complaints didn't go to the Personnel               
 Board, and that could be clarified, if necessary.  She also said it           
 could be made clear that under this definition does not apply to              
 people who come under a collective bargaining contract.                       
                                                                               
 Number 470                                                                    
                                                                               
 SENATOR SALO asked how many people from the executive branch are              
 captured under the Range 21 and above.  SENATOR PEARCE responded              
 that APOC estimates it will add 600 to the 800 that already file.             
                                                                               
 Number 495                                                                    
                                                                               
 BROOKE MILES, Juneau Branch Administrator, Alaska Public Offices              
 Commission, stated the Commission reviewed the legislation and did            
 not take a position with the policy issue of adding additional                
 filers, but addressed it with their fiscal note.  The Commission's            
 primary concern is with Sections 26 and 27 that deal with the Legal           
 Defense Fund and Election Challenge Fund.  They felt an Election              
 Challenge Fund was probably a good idea and is permitted both in              
 the campaign finance reform initiative and legislation which is               
 circulating through the system at this point, but they had serious            
 concerns with the Legal Defense Fund and exactly what the scope of            
 it would be.                                                                  
                                                                               
 SENATOR PEARCE pointed out that the changes in Sections 26 and 27             
 were made by Senator Donley, and she suggested working with him on            
 an amendment so that APOC is comfortable with those sections of the           
 bill.                                                                         
                                                                               
 Number 525                                                                    
 MIKE MCMULLIN, Division of Personnel, Department of Administration,           
 said the Personnel Board is a lay board and its members already               
 have a substantial schedule and this change raises the concern of             
 putting the added demand on a lay board.   He said it raises the              
 question of why the change because they are not aware of any                  
 significant problems with the current Ethics Act.                             
                                                                               
 Mr. McMullin said Section 66 seems to add little and maybe nothing            
 to the current Executive Branch Ethics Act requirements, but may              
 add confusion to the picture as to defining a subgroup within the             
 Executive Branch Ethics Act which is subject to certain provisions            
 and everybody else is subject to other provisions.                            
                                                                               
 TAPE 9, SIDE B                                                                
 Number 010                                                                    
                                                                               
 SENATOR SALO asked Mr. McMullin if he thought that instead of                 
 talking about Range 21 and up, it could be approached by having the           
 Personnel Board identify policy making positions.  MR. MCMULLIN               
 answered it would be difficult at best for them to do that, but it            
 is not an approach he would discount.  SENATOR PEARCE asked if                
 using a dollar amount would work.  MR. MCMULLIN responded that a              
 dollar amount is much easier to measure than anything else, but he            
 agreed with Senator Salo that a dollar amount is not going to                 
 signify a policy maker.                                                       
                                                                               
 MR. MCMULLIN directed attention to and voiced concern with Section            
 64, which makes a substantial change in conflict of interest in               
 that it appears to reinstate the common law concept of an                     
 appearance of a conflict of interest.  That concept was                       
 specifically written out when the Executive Branch Ethics Act was             
 adopted so that only real conflicts would be dealt with, not                  
 apparent conflicts.                                                           
                                                                               
 Mr. McMullin also noted that the advisory responsibility and the              
 record keeping that will be brought over to the Personnel Board by            
 the legislation is going to require three additional positions:  an           
 attorney, a paralegal and a file clerk.                                       
                                                                               
 SENATOR PEARCE pointed out that one of the members of the                     
 Legislative Ethics Committee is an attorney and another member is             
 a grant writer, and the committee actually has been drafting all of           
 their own advisory opinions, using legislative legal staff to help            
 draft the correct language.  She suggested an attorney from the               
 AG's Office could do the same for the Personnel Board.                        
                                                                               
 Number 130                                                                    
                                                                               
 There being no further testimony on CSSB 141(RLS), CHAIRMAN MILLER            
 closed the public hearing and stated the committee would begin                
 addressing the proposed amendments.  He then directed attention to            
 a memo dated April 29 from Terry Cramer, Legal Counsel, Legislative           
 Affairs Agency, listing 10 amendments, mostly technical in nature.            
                                                                               
 SENATOR SALO moved the adoption of the 10 amendments contained in             
 the Cramer memo dated April 29, 1996.  Hearing no objection, the              
 Chairman stated the amendments were adopted.                                  
                                                                               
 SENATOR SALO moved a conceptual amendment to replace the ban on               
 spousal lobbying into the bill, which was Section 2 in the State              
 Affairs version of SB 141.  Hearing no objection, the Chairman                
 stated the amendment was adopted.                                             
                                                                               
 Number 165                                                                    
                                                                               
 SENATOR PEARCE moved a conceptual amendment that the board and the            
 executive director of the Alaska Tourism & Marketing Council are              
 included in who should file conflict of interest statements.                  
 Hearing no objection, the Chairman stated the amendment was                   
 adopted.                                                                      
 Number 227                                                                    
                                                                               
 SENATOR PEARCE moved a conceptual amendment that the bill does                
 include the complaint process going to the Personnel Board, that              
 they have the authority to investigate the complaints, as well as             
 the authority to hire an outside investigator if necessary.                   
 Hearing no objection, the Chairman stated the conceptual amendment            
 was adopted.                                                                  
                                                                               
 SENATOR PEARCE moved a conceptual amendment to add to the                     
 definition of "state official" so that it does not include people             
 who are under a collective bargaining contract, so that the exempt            
 employees of the Marine Highway System do not fall under the                  
 definition.  Hearing no objection, the Chairman stated the                    
 conceptual amendment was adopted.                                             
                                                                               
 Number                                                                        
                                                                               
 SENATOR DUNCAN moved a conceptual amendment that in the definition            
 of "state official" language provide compensation at Range 21 or              
 above or at more than $4,200 per month.  Hearing no objection, the            
 Chairman stated the amendment was adopted.  SENATOR PEARCE added              
 that as this goes through the process, if it is found that people             
 fall into this category that shouldn't, they can be exempted out.             
                                                                               
 There being no further amendments to CSSB 141(RLS), CHAIRMAN MILLER           
 asked for the pleasure of the committee.                                      
                                                                               
 SENATOR PEARCE moved that CSSB 141(RLS), as amended, be passed out            
 of committee with individual recommendations and be approved for              
 calendaring.  Hearing no objection, it was so ordered.                        
                                                                               
 There being no further business to come before the committee, the             
 meeting was adjourned at 1:34 p.m.                                            
                                                                               
                                                                               

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