Legislature(1995 - 1996)
01/30/1996 03:30 PM STA
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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.