Legislature(1995 - 1996)
01/30/1996 03:30 PM Senate STA
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE STATE AFFAIRS COMMITTEE
January 30, 1996
3:30 p.m.
MEMBERS PRESENT
Senator Bert Sharp, Chairman
Senator Randy Phillips, Vice-Chairman
Senator Loren Leman
Senator Jim Duncan
Senator Dave Donley
COMMITTEE CALENDAR
SENATE BILL NO. 219
"An Act relating to the disposal of firearms and ammunition by the
state or a municipality."
SENATE BILL NO. 141
"An Act relating to legislative ethics; and providing for an
effective date."
PREVIOUS SENATE COMMITTEE ACTION
SB 219 - no previous senate committee action.
SB 141 - See State Affairs minutes dated 4/20/95 and 4/27/95.
WITNESS REGISTER
Senator Mike Miller
State Capitol, Juneau, Alaska, 99801-1182¶(907)465-4976
POSITION STATEMENT: prime sponsor of SB 219
Gretchen Pence, Special Assistant to the Commissioner
Department of Public Safety
P.O. Box 111200, Juneau, AK 99811-1200¶(907)465-4322
POSITION STATEMENT: SB 219 is unnecessary
Margie MacNeille, Chair
Legislative Ethics Committee
P.O. Box 101468, Anchorage, AK 99501-1468¶(907)258-8172
POSITION STATEMENT:
ACTION NARRATIVE
SB 219 DISPOSAL OF FIREARMS BY PUBLIC AGENCIES
TAPE 96-5, SIDE A
Number 001
CHAIRMAN SHARP called the Senate State Affairs Committee to order
at 3:30 p.m. and brought up SB 219 as the first order of business
before the committee. The chairman called the prime sponsor to
testify.
Number 015
SENATOR MIKE MILLER, prime sponsor of SB 219, informed the
committee that last June the Department of Administration decided
to destroy excess handguns that were either acquired through
confiscation or were surplus from the Department of Corrections or
Department of Public Safety. Past practice was to dispose of these
weapons through the Surplus Property Program. SB 219 would make
the state dispose of excess firearms through firearms dealers.
Senator Miller relayed information contained in his sponsor
statement. He thinks the current practice of destroying weapons
appears to be a philosophical bent against firearms.
Number 075
SENATOR RANDY PHILLIPS asked what the normal process is for
disposing of seized or surplus property. He asked if other seized
property, such as boats and cars, are ever destroyed.
Number 082
GRETCHEN PENCE, Special Assistant to the Commissioner, Department
of Public Safety (DPS), stated that seized property is sometimes
returned to the owner. As a routine, that property is routinely
turned over to the Department of Administration (DOA) for disposal.
DPS does not auction or dispose of property.
SENATOR RANDY PHILLIPS asked what the general policy is for dealing
with disposal of property. He wants to know if firearms are
singled out for destruction.
MS. PENCE responded that property is destroyed for health and
safety reasons.
SENATOR RANDY PHILLIPS thinks it sounds like the current firearms
policy is an exception to the rule in terms of disposal of
property. He asked Ms. Pence if perfectly good vehicles are
destroyed.
MS. PENCE replied that, to her knowledge, they do not.
Number 127
SENATOR DUNCAN asked Ms. Pence for the administration's position.
MS. PENCE responded that the administration's position is that
confiscated and surplus firearms will not be resold to the public.
Number 168
SENATOR DUNCAN asked if the administration's position on SB 219 was
that they opposed it.
MS. PENCE replied the administration's position is that the bill is
not necessary. There is a policy in place that deals with the
disposal of these firearms.
Number 173
SENATOR LEMAN asked for the reasoning behind the administration's
policy: it doesn't make sense to him that the state would destroy
those resources.
MS. PENCE responded it is the administration's position that it
should not be in the business of reselling handguns to the public.
Number 203
SENATOR LEMAN doesn't disagree that the state shouldn't be in the
retail business, but the state is involved in many other
businesses. It seems to be an inconsistent application of policy
regarding disposal of excess property.
Number 220
SENATOR RANDY PHILLIPS agreed with Senator Leman that the
administration's policy seems inconsistent. He views these
firearms as another piece of property seized by the state. It
sounds to him as though firearms are being singled out.
Number 240
SENATOR DONLEY commented that he has heard that one of the excuses
given for destroying saturday night specials is that they are
inexpensive. He finds that argument extremely objectionable: the
second amendment of the United States Constitution protects poor
people as well as rich people. Poor people should have access to
firearms for protection, as well as rich people.
SENATOR LEMAN noted that a very well-qualified firearms collector
viewed the collection of guns destroyed by the state, and there
were some real treasures destroyed.
SENATOR LEMAN made a motion to discharge SB 219 from the Senate
State Affairs Committee with accompanying fiscal notes from the
Department of Public Safety and the Department of Community &
Regional Affairs with individual recommendations.
Number 265
CHAIRMAN SHARP, hearing no objection, ordered SB 219 released from
committee with individual recommendations.
SB 141 LEGISLATIVE ETHICS
Number 270
SENATOR SHARP brought up SB 141 as the next order of business
before the Senate State Affairs Committee and called Ms. MacNeille
to testify.
Number 287
MARGIE MACNEILLE, Chair, Legislative Ethics Committee, testifying
from Anchorage, noted that an analysis of SB 141 prepared by the
Ethics Committee was submitted to the Senate State Affairs
Committee. (Ms. MacNeille's testimony was mostly unintelligible
due to bad teleconference transmission.)
CHAIRMAN SHARP informed Ms. MacNeille that her testimony was
cutting in and out. He asked if she was commenting on the State
Affairs Committee substitute, work draft "m" of SB 141.
MS. MACNEILLE stated she could work from the committee substitute,
if the committee would prefer that.
CHAIRMAN SHARP said they would prefer that.
Number 350
SENATOR DUNCAN asked if the committee substitute incorporates
additions Ms. MacNeille has not reviewed.
MS. MACNEILLE responded it is her understanding that the only
differences between the two versions are technical changes.
Neither includes the four amendments that the Ethics Committee is
proposing.
CHAIRMAN SHARP stated this is the first opportunity the committee
has had to discuss the amendments proposed by the Ethics Committee.
The State Affairs Committee members have those proposed amendments
in their bill packets.
Number 365
MS. MACNEILLE started from the beginning again on the sectional
analysis of SB 141, which is contained in member's bill packets.
Number 380
SENATOR DONLEY asked Ms. MacNeille to go into more detail on the
sectional analysis.
MS. MACNEILLE stated that Section 5 concerns legislative employees
who also wish to participate in campaign activities. It would
address the public perception that the campaign employee is being
paid by the State of Alaska to engage in that activity.
Number 404
SENATOR LEMAN asked if it would be beneficial, regarding that
requirement, for the employee to keep a time record of their
activities.
MS. MACNEILLE stated the committee has discussed but has not chosen
to impose any kind of time card or fixed schedule. From the
legislator's point of view, there is a lot to be said in terms of
self defense for recording that information.
Number 422
SENATOR LEMAN asked how the committee views pseudo-legislative
activities.
MS. MACNEILLE responded the committee hasn't addressed anything
that's come to such a fine line. If people have questions
regarding specific circumstances, they can consult the committee.
Number 440
SENATOR LEMAN thinks it's important that it is clearly defined what
appropriate activities are.
MS. MACNEILLE noted that the Ethics Committee gets a lot of
inquiries about whether a particular activity is appropriate or
not.
Number 450
MS. MACNEILLE continued with the sectional analysis of SB 141.
Number 468
SENATOR DONLEY asked for an example of the type of situation
described in Section 10.
MS. MACNEILLE replied that it would violate a person's privacy to
have to disclose a benefit received under the Violent Crimes
Compensation act.
SENATOR DONLEY asked Ms. MacNeille to explain Section 11.
Number 483
MS. MACNEILLE replied, "If the committee issued a protective order
about certain material collected during a complaint investigation,
and that material would be appropriately disclosed to the subject
of the complaint under discovery, would be able to make sure that
the subject of the complaint didn't disclose that to the public if
it would interfere with various privacy concerns of the people the
information was about."
Number 490
SENATOR DONLEY asked Ms. MacNeille to give a more in-depth
explanation. Under the legislative ethics system, the only
restraint is on the subject of the complaint. He wants to know how
Section 11 would add to that restraint.
Number 497
MS. MACNEILLE stated she would give a hypothetical situation that
might make that more clear. "In the course of the investigation,
sensitive material about a minor or private information about a
witnesses conduct or prior history might be discovered by the
committee. It would also be available to the subject of the
complaint under discovery. The complainant, assuming the
complainant was not a witness, or the person directly involved in
the complaint, wouldn't know about it. But the subject, by taking
that material to the press might be able to injure or intimidate
witnesses that the committee had interviewed. So we wanted to be
able to issue a protective order that prevented the subject of the
complaint from doing that, from embarrassing or intimidating
witnesses by disclosing sensitive information about them."
Number 515
SENATOR DONLEY expressed concern that the legislative ethics system
is already one-way. Complainants can make their case in the press.
Now the committee is asking for powers to prevent the subject of
the complaint from defending themself in an open forum. People
should be allowed to defend themselves in the forum that these
other people create. If neither party goes to the press, then it
is better to be left with the ethics committee.
Number 535
CHAIRMAN SHARP agreed with Senator Donley.
Number 537
SENATOR RANDY PHILLIPS asked Ms. MacNeille what the reasoning was
behind Section 11.
MS. MACNEILLE replied that material has been turned up in
investigations that was sensitive and embarrassing to witnesses,
but not part of public defense or discussion of the case. The
committee was concerned that the subjects right to discovery of
what the committee discussed would compromise the witnesses concern
for their privacy.
CHAIRMAN SHARP asked, if the complainant has a history of being a
haranguer, would the subject of the complaint be forbidden from
bringing that up?
MS. MACNEILLE said, "Absolutely not. Things that are already in
public are fine. Even things that the committee might find in
investigations which have remained private and that aren't free, so
anything to do with the complainant, but might have to do with
innocent witnesses. If it's relevant to the case, it's
appropriately discoverable to the subject, but there are ancillary
parts of it that we're concerned about being blasted around in
public by the subject in an attempt to intimidate a witness."
Number 565
SENATOR DONLEY asked, then why not just write that an attempt to
intimidate a witness is improper? He certainly would not support
any intimidation of witnesses for an improper reason. But at the
same time, you're limiting the freedom of speech rights of one
party, when the other party is completely unrestrained. There is
a First Amendment question here, also.
CHAIRMAN SHARP added that is also his concern: that the complainant
might be the witness to whom you're referring.
SENATOR DONLEY stated Section 11 would leave it completely to the
discretion of the committee to make that decision. He thinks there
need to be more guidelines in that section. Perhaps the law should
be directed more towards addressing the specific problem. If
someone uses their public position to improperly intimidate a
witness, that should be a crime, not defending themselves, or
depriving their First Amendment and other constitutional rights to
defend themselves. Everyone has the right to confront their
accuser and to cross-examine their accusers and witnesses, within
appropriate context of what's relevant to the case. If you go
beyond that, it's certainly inappropriate and should not be
allowed. We need to be careful not to limit the ability of people
to defend themselves.
Number 582
MS. MACNEILLE responded that Section 11 would not limit anyone's
ability to defend themselves in a hearing before the committee.
This only discusses the other defense forum, which is in front of
the press. In addition, it is only if a legislator violates a
protective order, which would be issued under the Alaska Rules of
Civil Procedure...
TAPE 96-5, SIDE B
...to issue a protective order, a certain showing has to be made
that the information is sensitive and shouldn't be discussed. This
kind of protective order is routinely issued in judicial
proceedings.
SENATOR DONLEY asked if Ms. MacNeille meant civil or criminal
proceedings.
MS. MACNEILLE responded she was referring to civil proceedings.
SENATOR DONLEY stated those proceedings are a lot different than
ethics complaints. In typical ethics complaints in the Judicial
and Executive Branches, that information wouldn't be made public.
MS. MACNEILLE responded that the Legislative Ethics Committee
procedures follow standard civil procedure. She thinks there are
already safeguards built in to the process that would prevent
Section 11 from being used in a way that would prevent a legislator
from appropriately defending themself, either in public or before
the committee.
Number 576
SENATOR DONLEY stated he would not have any concern about Section
11 if the trigger was whether or not the complainant had gone
public, as is prohibited under the Judicial and Executive Branch
Acts. He is concerned that civil procedure rules are being used to
determine an ethics complaint, which is very different. He would
like this section tightened up to more precisely address the
identified problem.
CHAIRMAN SHARP asked Ms. MacNeille if she has a problem with that.
MS. MACNEILLE replied, "If the committee [Senate State Affairs?]
would like us to try and tighten it up, we can try and tighten it
up."
CHAIRMAN SHARP stated the senator can work with the committee on
that.
Number 566
MS. MACNEILLE continued with the sectional analysis of SB 141.
Number 559
CHAIRMAN SHARP asked Ms. MacNeille if, under Section 13, changes
would also refer to severing relationships with the employer or
adding a new employer.
MS. MACNEILLE responded, "Yes."
CHAIRMAN SHARP asked if changes in the agreement between the
employer and the spouse would have to be reported.
MS. MACNEILLE thinks that would relate to changes in the clientele.
Number 550
SENATOR RANDY PHILLIPS noted that last year he had an amendment
that would prohibit being married to a lobbyist. Did the Ethics
Committee discuss that or receive public comment on that?
MS. MACNEILLE responded the committee discussed that at their
January 9th meeting, but the committee did not take a position.
The committee has not received any public comment on that.
SENATOR RANDY PHILLIPS stated he will offer that amendment again.
Number 544
SENATOR LEMAN stated he doesn't like the term "spousal equivalent";
he does not believe that person really is a spousal equivalent. He
thinks it is a dangerous term to be using: it is suggesting
equivalency. Those who are not legally married are claiming rights
that go beyond the rights of marriage. He will be prepared to
offer an amendment when the bill is taken up again.
MS. MACNEILLE thinks the term is ungainly and unpleasant. It would
be fine with her if Senator Leman can think of some other term to
use.
SENATOR LEMAN stated he made a suggestion last year that was quite
descriptive.
MS. MACNEILLE continued with the sectional analysis to SB 141.
Number 518
SENATOR RANDY PHILLIPS asked Ms. MacNeille if Christmas bonuses
from employers to employees must be reported.
MS. MACNEILLE responded if it is part of your employee compensation
and shows up on a W2, then it's not really a gift.
SENATOR RANDY PHILLIPS stated the bonus to which he is referring
was a gift certificate.
MS. MACNEILLE stated that gifts over the reporting threshold should
be reported.
Number 495
MS. MACNEILLE continued with the sectional analysis to SB 141.
SENATOR RANDY PHILLIPS asked Ms. MacNeille to explain Section 15.
MS. MACNEILLE replied, "...you can accept hospitality at the
residence of a person. The amendment is to say that, being offered
hospitality for two weeks at somebody's condo in Maui, that is not
their primary residence, doesn't count as hospitality at somebody's
home. Using somebody's condo for two weeks in Hawaii would count
as a gift."
Number 470
CHAIRMAN SHARP asked if he would be affected by letting lobbyists
stay at his house while they're visiting Juneau.
MS. MACNEILLE responded there are no limitations on the generosity
of legislators.
Number 460
SENATOR DONLEY asked what the effect would be if legislators were
invited to spend the night at a person's fishing lodge. Would that
be a violation of the legislative ethics act.
MS. MACNEILLE thought that would not automatically be exempt as
hospitality in the person's home. But it would most likely fall
under the $100 or $250 limit, or fit under some other exemption.
SENATOR DONLEY asked if this would prohibit spending the night
anywhere other than somebody's home someplace in Alaska. Then the
fall-back is whether the value of that one-night stay was below the
gift value limit.
MS. MACNEILLE thinks that kind of thing would generally be valued
at $25 a night.
SENATOR DONLEY stated, as an example, that about six years ago
there was a legislative retreat at Sam Cotten's place at Halibut
Cove. He lives down there for the summer and fishes. Under this
act, would that no longer be allowed? Or would that fall under the
official state business exception.
MS. MACNEILLE replied that would probably be for legislative
purposes. Also, she is not familiar with Mr. Cotten's exact living
arrangements, but she thinks that probably counts as his residence,
during the summer anyway.
SENATOR DONLEY stated he is just listing some examples. He thinks
this might also limit visits between legislators.
SENATOR RANDY PHILLIPS asked Ms. MacNeille what she is trying to do
with this provision.
MS. MACNEILLE responded they're trying to avoid condos in Maui.
SENATOR RANDY PHILLIPS asked if they are having a problem with
that.
MS. MACNEILLE replied that there have been inquiries.
SENATOR RANDY PHILLIPS asked how many inquiries there have been.
MS. MACNEILLE responded there have been about ten inquiries.
Number 418
CHAIRMAN SHARP commented that this provision really starts
migrating into an area where most Alaskans share experiences in
hunting camps and lodges with people who have been your friends for
years.
SENATOR DONLEY remarked that if the problem is condos in Maui,
perhaps we should specify "out of state".
CHAIRMAN SHARP thinks this provision would invite problems on
something that's not a problem.
MS. MACNEILLE added that if it is a gift unrelated to legislative
status, that would be accepted.
Number 408
MS. MACNEILLE continued the sectional analysis of SB 141.
Number 356
SENATOR DONLEY asked, under Section 19 (J) if there is a definition
of compensation as it appears on page 9, line 3.
MS. MACNEILLE doesn't know.
SENATOR DONLEY asked if there is exemption somewhere else for the
legislative intern program.
MS. MACNEILLE replied there is a separate statute that addresses
the legislative intern program.
SENATOR DONLEY stated the way that is written, he would think it
could easily prohibit having student interns in offices.
MS. MACNEILLE responded that U of A and JTPA interns are permitted
without a problem.
SENATOR DONLEY asked if those are specifically identified by name
in another statute.
MS. MACNEILLE replied that the U of A interns are. The JTPA
interns are covered by an advisory opinion.
SENATOR DONLEY asked what the difference would be between a
scholarship situation and not receiving compensation from any
source.
MS. MACNEILLE responded the committee does not have a problem with
people who get scholarships or stipends for educational or work-
program reasons.
SENATOR DONLEY stated that JTPA isn't limited to that. They get
assistance from private parties. It's a really good program; it's
what public-private partnership is all about. But it would seem to
be directly in violation of the way this is written.
Number 320
MS. MACNEILLE replied that the advisory opinion thought JTPA should
be encouraged, rather than discouraged.
SENATOR DONLEY agreed with that, and thinks it's a good advisory
opinion, but he thinks the language is problematic, and rather than
just relying on an advisory opinion, the language should be
clarified.
Number 310
MS. MACNEILLE suggested there could be an opportunity for the
committee to waive the prohibition.
Number 306
CHAIRMAN SHARP knows of another example where that would be
problematic. In his community the NAACP financed a young man to
come down and work in the legislature as a legislative volunteer.
There are also scholarships and incentives from some of the native
corporations to have young people get involved in the legislature.
That would qualify as a volunteer service that they were being
compensated for from another person. The chairman thinks those
types of things should be looked at; he would hate to block that
type of activity.
Number 289
MS. MACNEILLE continued with the sectional analysis of SB 141.
Number 282
SENATOR DONLEY commented that when he was Judiciary Chair, he had
two committee secretaries who both had master's degrees. He thinks
that under any argument here (Section 20), they certainly wouldn't
have been making secretarial wages.
MS. MACNEILLE continued with the sectional analysis of SB 141.
Number 220
SENATOR DONLEY asked Ms. MacNeille why the committee would want to
exclude requestors of advisory opinions from the discussion.
MS. MACNEILLE answered that the deliberative process has been
conducted confidentially. She thinks that is the most appropriate
way for the committee to act on a confidential matter.
Number 205
SENATOR DONLEY thinks that the person who initiates the request for
advice would certainly be a relevant part of the process in
determining what the appropriate advice should be.
Number 190
MS. MACNEILLE responded that the committee is not trying to close
off the opportunity for people requesting advisory opinions to tell
us whatever they want to tell us. We're simply trying to retain
authority in circumstances we feel are necessary to deliberate by
ourselves.
Number 180
SENATOR DONLEY stated that to retain authority to exclude the
person requesting advice from the discussion seems unneccesary. He
would think the committee would want that person involved in that
discussion. Unless the committee is scared to have the requestor
there for some reason.
MS. MACNEILLE doesn't think the committee has been scared of
anybody yet.
SENATOR DONLEY stated they would only come if they wanted to come.
If they want to come, why not let them.
MS. MACNEILLE replied that no requestor has ever shown up.
SENATOR DONLEY said it sounds as if the committee has a policy of
telling requestors they can't come. Your testimony was that you
were just going to put it into statute that they can't come.
MS. MACNEILLE replied, "Not the discussion, but the final
deliberations of the advisory opinion."
SENATOR DONLEY thinks it would be better public policy to encourage
requestors to participate. It's not like they're doing something
wrong: they're actually seeking an opinion; they're doing the right
thing.
Number 158
MS. MACNEILLE responded that, from the public point of view, when
an advisory opinion is requested, there is a question as to whether
it is some kind of a done deal when the requestor and the Ethics
Committee to go into a closed-door session together. She would be
happy to have the advisory opinion process entirely open. That has
been done in a number of cases where requestors waived
confidentiality. There are circumstances appropriate for
confidentiality, though.
SENATOR DONLEY thinks the requestor should be included.
MS. MACNEILLE responded it is just a question of the final
deliberations.
SENATOR DONLEY commented it would be easier for the legislature
too, if they always held closed committee meetings and did their
final deliberations in secret, but they don't do that. It's better
public policy to open it up.
MS. MACNEILLE replied she would be happy to have the whole process
completely in public. The question of where it's not, is when the
particular individual is given access to our deliberations where no
one else is.
Number 105
SENATOR DONLEY still thinks it would be good public policy to allow
those people to participate in that, no matter whether the meeting
is open or closed.
MS. MACNEILLE responded that if the requestor of an advisory
opinion had ever asked, they would have considered having them in.
This just prevents that person from requiring admittance.
Number 090
CHAIRMAN SHARP announced that the committee will have to close the
meeting shortly, and that a continuation of this hearing will be
scheduled, possibly for February 6, 1996. He asked Ms. MacNeille
to continue with the analysis.
Number 075
MS. MACNEILLE continued with the sectional analysis for SB 141.
Number 055
SENATOR LEMAN asked Ms. MacNeille what if, to escape the
prohibition in Section 29, the person was to file against 59
legislators. How would the committee respond to that.
MS. MACNEILLE responded that Section 30 tries to address that too.
SENATOR LEMAN noted he sees Section 30, and probably should have
waited until she got to that section.
TAPE 96-6, SIDE A
Number 001
MS. MACNEILLE continued with the sectional analysis of SB 141.
Number 006
CHAIRMAN SHARP asked Ms. MacNeille to stop at Section 30, and the
committee will continue on at Section 31 at a future meeting.
Number 044
CHAIRMAN SHARP adjourned the Senate State Affairs Committee meeting
at 5:03 p.m.
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