HCS CSSB 186(JUD): "An Act relating to the Alaska Executive Branch Ethics Act."
00 HOUSE CS FOR CS FOR SENATE BILL NO. 186(JUD) 01 "An Act relating to the Alaska Executive Branch Ethics Act." 02 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 03 * Section 1. AS 39.52.110(b) is amended to read: 04 (b) Unethical conduct is prohibited, but there is no [SUBSTANTIAL] 05 impropriety if, as to a specific matter, a public officer's 06 (1) personal or financial interest in the matter is [INSIGNIFICANT, 07 OR] of a type that is possessed generally by the public or a large class of persons to 08 which the public officer belongs; [OR] 09 (2) action or influence would have insignificant or conjectural effect 10 on the matter; or personal or financial interest in a matter is in regard to a 11 business and the public officer 12 (A) does not own a controlling interest in the business; 13 (B) does not own stock or options to buy stock that, when 14 combined, 15 (i) equal more than one percent of the stock in the
01 business; or 02 (ii) have a total value of more than $10,000; 03 (C) owns or has an option to buy 04 (i) less than one percent of the equity interest in the 05 business; and 06 (ii) an equity interest in the business worth less than 07 $10,000; 08 (D) is not a member of the board of directors or another 09 governing body of the business; 10 (E) is not an elected officer of the business; 11 (F) does not provide or have an option to provide personal 12 or professional services to the business; 13 (G) does not have a contract or have an option for a 14 contract with the business; and 15 (H) is not an employee of the business. 16 * Sec. 2. AS 39.52.130(f) is amended to read: 17 (f) A public officer who knows or reasonably ought to know that an 18 immediate [A] family member or a business associate has received a gift because of 19 the family member's or business associate's connection with the public office held by 20 the public officer shall report the receipt of the gift by the family member or business 21 associate to the public officer's designated supervisor if the gift would have to be 22 reported under this section if it had been received by the public officer or if receipt of 23 the gift by a public officer would be prohibited under this section. 24 * Sec. 3. AS 39.52.140 is amended to read: 25 Sec. 39.52.140. Improper use or disclosure of information. (a) A current or 26 former public officer may not disclose or use information gained in the course of, or 27 by reason of, the officer's official duties or position that could in any way result in the 28 receipt of any benefit for the officer, [OR] an immediate family member, or a 29 business associate if the information has not also been disseminated to the public. 30 (b) A current or former public officer may not disclose or use, without 31 appropriate authorization, information acquired in the course of official duties or by
01 reason of the officer's position that is confidential by law. 02 * Sec. 4. AS 39.52.150(a) is amended to read: 03 (a) A public officer, [OR] an immediate family member, or a business 04 associate may not attempt to acquire, receive, apply for, be a party to, or have a 05 personal or financial interest in a state grant, contract, lease, or loan if the public 06 officer may take or withhold official action that affects the award, execution, or 07 administration of the state grant, contract, lease, or loan. 08 * Sec. 5. AS 39.52.150(c) is amended to read: 09 (c) The prohibition in (a) of this section does not apply to a state loan if 10 (1) the public officer does not take or withhold official action that 11 affects the award, execution, or administration of the loan held by the officer, [OR] an 12 immediate family member, or a business associate; 13 (2) the loan is generally available to members of the public; and 14 (3) the loan is subject to fixed eligibility standards. 15 * Sec. 6. AS 39.52.150(d) is amended to read: 16 (d) A public officer shall report in writing to the designated supervisor a 17 personal or financial interest held by the officer, [OR] an immediate family member, 18 or a business associate [,] in a state grant, contract, lease, or loan that is awarded, 19 executed, or administered by the agency the officer serves. 20 * Sec. 7. AS 39.52 is amended by adding a new section to read: 21 Sec. 39.52.165. Professional misconduct. A public officer may not, in taking 22 official action, violate or be required to violate a provision of a code or canon of 23 professional ethics if the public officer's professional conduct is bound by the code or 24 canon of professional ethics as a condition of obtaining or retaining a license to 25 engage in or to practice the profession. 26 * Sec. 8. AS 39.52.230 is amended to read: 27 Sec. 39.52.230. Reporting of potential violations. A person may report to a 28 public officer's designated supervisor, under oath and in writing, a potential violation 29 of AS 39.52.110 - 39.52.190 by the public officer. The supervisor shall provide a copy 30 of the report to the officer who is the subject of the report and to the attorney general, 31 and shall review the report to determine whether a violation may exist. Except where
01 the report concerns the governor, lieutenant governor, or the attorney general, 02 the [THE] supervisor shall act in accordance with AS 39.52.210 or 39.52.220 if the 03 supervisor determines that the matter may result in a violation of AS 39.52.110 - 04 39.52.190. If the report concerns the governor, lieutenant governor, or the 05 attorney general, the supervisor shall refer the report as provided in (b) of this 06 section. 07 * Sec. 9. AS 39.52.230 is amended by adding a new subsection to read: 08 (b) If a report or allegation of a violation of AS 39.52.110 - 39.52.190 by the 09 governor, lieutenant governor, or attorney general comes to the attention of the 10 designated supervisor for the governor, lieutenant governor, or attorney general, other 11 than by the declaration of a potential violation by the governor, lieutenant governor, or 12 attorney general under AS 39.52.210(a)(2) or by the filing of an ethics complaint 13 under AS 39.52.310(b), then, 14 (1) in the case of a report or allegation against the governor or the 15 lieutenant governor, the attorney general shall refer the matter to the personnel board, 16 which shall appoint an independent counsel to investigate; the independent counsel 17 shall have power to issue and enforce subpoenas under AS 39.52.380 and 39.52.390; 18 the independent counsel shall prepare a written report of the investigation; the written 19 report must include findings of fact and a conclusion as to whether, in the opinion of 20 the independent counsel, the facts constitute conduct in violation of AS 39.52.110 - 21 39.52.190; the report of the independent counsel shall be submitted to the attorney 22 general; the attorney general shall review the report and make an independent 23 determination as to whether the independent counsel's findings of fact, if true, would 24 constitute conduct in violation of AS 39.52.110 - 39.52.190; if the attorney general 25 concludes that the facts as found by the independent counsel would constitute a 26 violation of AS 39.52.110 - 39.52.190, then the attorney general shall treat the 27 independent counsel's report as a complaint and shall refer the report to the personnel 28 board under AS 39.52.310(c); if the attorney general concludes that the facts as found 29 by the independent counsel would not constitute a violation of AS 39.52.110 - 30 39.52.190, the investigation shall be closed and no further enforcement action shall be 31 taken; nothing in this paragraph precludes a person from filing a complaint concerning
01 the same matter under AS 39.52.310(b); 02 (2) in the case of a report or allegation against the attorney general, the 03 governor shall refer the matter to the personnel board, which shall appoint an 04 independent counsel to investigate; the independent counsel shall have power to issue 05 and enforce subpoenas under AS 39.52.380 and 39.52.390; the independent counsel 06 shall prepare a written report of the investigation; the written report must include 07 findings of fact and a conclusion as to whether, in the opinion of the independent 08 counsel, the facts constitute conduct in violation of AS 39.52.110 - 39.52.190; the 09 report of the independent counsel shall be submitted to the governor; the governor 10 shall review the report and make an independent determination as to whether the 11 independent counsel's findings of fact, if true, would constitute conduct in violation of 12 AS 39.52.110 - 39.52.190; if the governor desires legal advice in making this 13 determination, the personnel board, at the governor's request, shall appoint an 14 additional independent counsel to advise the governor on legal issues; if the governor 15 concludes that the facts as found by the independent counsel would constitute a 16 violation of AS 39.52.110 - 39.52.190, then the governor shall refer the report to the 17 personnel board for appropriate action in accordance with the procedures set out in 18 AS 39.52.310(c); if the governor concludes that the facts as found by the independent 19 counsel would not constitute a violation of AS 39.52.110 - 39.52.190, the 20 investigation shall be closed and no further enforcement action shall be taken; nothing 21 in this paragraph precludes a person from filing a complaint concerning the same 22 matter under AS 39.52.310(b). 23 * Sec. 10. AS 39.52.240(a) is amended to read: 24 (a) Upon the written request of a designated supervisor or a board or 25 commission, the attorney general shall issue opinions interpreting this chapter. The 26 requester must supply any additional information requested by the attorney general in 27 order to issue the opinion. Within 60 days after receiving a complete request, the 28 attorney general shall issue an advisory opinion on the question. This section does not 29 apply to a report or an allegation investigated under AS 39.52.230(b). 30 * Sec. 11. AS 39.52.310(a) is amended to read: 31 (a) The attorney general may initiate a complaint, or elect to treat as a
01 complaint, any matter disclosed under AS 39.52.210, 39.52.220, 39.52.230(a), 02 39.52.250, or 39.52.260. The attorney general may not, during a campaign period, 03 initiate a complaint concerning the conduct of the governor or lieutenant governor 04 who is a candidate for election to state office. 05 * Sec. 12. AS 39.52.335(c) is amended to read: 06 (c) If a complaint is dismissed under AS 39.52.320 or resolved under 07 AS 39.52.330, the attorney general shall promptly prepare a summary of the matter 08 and provide a copy of the summary to the personnel board, the subject of the 09 complaint, and the complainant. The summary is confidential unless the 10 [(1)] dismissal or resolution agreed to under AS 39.52.320 or 11 39.52.330 is public [; OR 12 (2) SUPERIOR COURT MAKES THE MATTER PUBLIC UNDER 13 (h) OF THIS SECTION]. 14 * Sec. 13. AS 39.52.335(f) is amended to read: 15 (f) After review of the summary, the personnel board may issue a report on the 16 disposition of the complaint to the attorney general, the subject of the complaint, 17 and the complainant. The report is confidential until the personnel board makes 18 a finding of probable cause [. IF THE MATTER IS CONFIDENTIAL AND THE 19 BOARD DETERMINES THAT PUBLICATION OF THE NAME OF THE 20 SUBJECT IS IN THE PUBLIC INTEREST, THE REPORT MAY INCLUDE A 21 RECOMMENDATION THAT THE MATTER BE MADE PUBLIC]. 22 * Sec. 14. AS 39.52.340(a) is amended to read: 23 (a) Except as provided in AS 39.52.335, before the initiation of formal 24 proceedings under AS 39.52.350, the complaint and all other documents and 25 information regarding an investigation conducted under this chapter or obtained by the 26 attorney general or independent counsel during the investigation are confidential and 27 not subject to inspection by the public. In the case of a complaint concerning the 28 governor, lieutenant governor, or attorney general, all meetings of the personnel board 29 concerning the complaint and investigation before the determination of probable cause 30 are closed to the public. If, in the course of an investigation or probable cause 31 determination, the attorney general finds evidence of probable criminal activity, the
01 attorney general shall transmit a statement and factual findings limited to that activity 02 to the appropriate law enforcement agency. If the attorney general finds evidence of a 03 probable violation of AS 15.13, the attorney general shall transmit a statement to that 04 effect and factual findings limited to the probable violation to the Alaska Public 05 Offices Commission. The attorney general, complainant, subject of the complaint, 06 and all persons contacted during the course of an investigation shall maintain 07 confidentiality regarding the existence of the investigation or proceeding. In a 08 proceeding conducted or an action taken under this chapter, 09 (1) a person may not disclose the filing of a complaint, its contents, 10 or related matters until the personnel board makes a finding of probable cause or 11 unless the disclosure is made while the person is 12 (A) communicating with personnel board members or staff; 13 (B) seeking advice from an attorney; or 14 (C) lawfully representing the person or the person's client 15 in defense of a complaint that has been filed and the disclosure is 16 necessary; 17 (2) personnel board proceedings related to a complaint that has 18 been filed are closed to all persons except board members and staff until the 19 board makes a finding of probable cause unless 20 (A) the board permits otherwise after finding that fairness 21 to the subject of the complaint may be advanced by the permission; or 22 (B) the subject of the complaint waives confidentiality; 23 (3) the complaint document and each related record are 24 confidential and are not available for public inspection unless 25 (A) the personnel board makes a finding of probable cause; 26 or 27 (B) the subject of the complaint waives confidentiality; 28 (4) under this section, if the subject of a complaint waives 29 confidentiality of a proceeding or a document, the entire proceeding is open to 30 the public, and the entire document is available for public inspection; 31 (5) the personnel board shall make appropriate efforts to provide
01 notice of the confidentiality requirements of this section; 02 (6) this section governs confidentiality only for complaints filed 03 under this chapter and does not alter confidentiality or the rights of any person 04 for matters not connected with this chapter; 05 (7) this subsection does not prevent a person from obtaining 06 directly from a state agency a public record of that agency that has also been 07 made available in connection with an investigation or a formal proceeding under 08 AS 39.52.310 - 39.52.390. 09 * Sec. 15. AS 39.52 is amended by adding a new section to read: 10 Sec. 39.52.352. Wrongful use of complaint. (a) The board may find there has 11 been wrongful use of an executive branch ethics complaint if it determines, after 12 compliance with due process requirements, including a public hearing, if requested, 13 and a majority vote, that the complainant made a factual allegation in the complaint 14 knowing the allegation to be false or with reckless disregard of the truth or falsity of 15 the allegation. 16 (b) If, under (a) of this section, the board makes a finding of wrongful use of 17 an executive branch ethics complaint, the board shall notify both the complainant and 18 the subject of the complaint of its final determination under (a) of this section. The 19 board 20 (1) shall provide to the subject of the complaint the name and last 21 known mailing address of the complainant; and 22 (2) may recommend sanctions under AS 39.52.410 - 39.52.440. 23 * Sec. 16. AS 39.52.380(a) is amended to read: 24 (a) As provided in AS 39.52.230(b), 39.52.310(g) [AS 39.52.310(g)], 25 39.52.360(b), and 39.52.370(b), the attorney general, independent counsel retained 26 under AS 39.52.230(b) or 39.52.310(c) [AS 39.52.310(c)], a hearing officer, the 27 subject of an accusation, and the personnel board may summon witnesses and require 28 the production of records, books, and papers by the issuance of subpoenas. 29 * Sec. 17. AS 39.52.410(a) is amended to read: 30 (a) If the personnel board determines that a public employee has violated this 31 chapter, it
01 (1) shall order the employee to stop engaging in any official action 02 related to the violation; 03 (2) may order divestiture, [ESTABLISHMENT OF A BLIND 04 TRUST,] restitution, or forfeiture; and 05 (3) may recommend that the employee's agency take disciplinary 06 action, including dismissal. 07 * Sec. 18. AS 39.52.960(9) is amended to read: 08 (9) "financial interest" means 09 (A) an interest held by a public officer, or an immediate family 10 member, which includes an involvement or ownership of an interest in a 11 business, including a property ownership, or a professional or private 12 relationship, that is a source of income, or from which, or as a result of which, 13 a person has received or expects to receive a financial benefit; 14 (B) holding a position in a business, such as an officer, director, 15 trustee, partner, employee, or the like, or holding a position of management; or 16 (C) an interest held by a public officer with a business 17 associate; 18 * Sec. 19. AS 39.52.960(11) is amended to read: 19 (11) "immediate family member" means 20 (A) the spouse of the person; 21 (B) another person living in the same household 22 [COHABITING] with the person in a sexual [CONJUGAL] relationship that is 23 not a legal marriage; 24 (C) a child, including a stepchild and an adoptive child, of the 25 person; 26 (D) a parent or [,] sibling [, GRANDPARENT, AUNT, OR 27 UNCLE] of the person; [AND] 28 (E) a child, parent, or sibling of the person's spouse; and 29 (F) a child, parent, or sibling of another person living in the 30 same household with the person in a sexual relationship that is not a legal 31 marriage;
01 * Sec. 20. AS 39.52.960 is amended by adding new paragraphs to read: 02 (23) "business associate" means any person with whom a public officer 03 jointly shares the management, control, or majority ownership of a business for the 04 conduct of trade, commerce, the practice of a profession, or any other occupation 05 engaged in for the purpose of providing income or potential income to the public 06 officer, regardless of how the business is organized; 07 (24) "household" means a social unit of those persons living together 08 in the same dwelling. 09 * Sec. 21. AS 39.52.335(h) is repealed.