Legislature(1995 - 1996)
04/30/1996 12:19 PM RLS
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
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.