Legislature(2011 - 2012)CAPITOL 120
03/11/2011 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB14 | |
| HB127 | |
| HB76 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 14 | TELECONFERENCED | |
| += | HB 127 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 76 | TELECONFERENCED | |
HB 14 - EXEC ETHICS: LEGAL FEES/FAMILY TRAVEL
1:06:27 PM
CHAIR GATTO announced that the first order of business would be
HOUSE BILL NO. 14, "An Act authorizing state agencies to pay
private legal fees and costs incurred by persons exonerated of
alleged Alaska Executive Branch Ethics Act violations; allowing
certain public officers and former public officers to accept
state payments to offset private legal fees and costs related to
defending against an Alaska Executive Branch Ethics Act
complaint; and creating certain exceptions to Alaska Executive
Branch Ethics Act limitations on the use of state resources to
provide or pay for transportation of spouses and children of the
governor and the lieutenant governor."
1:07:11 PM
GRETCHEN STAFT, Staff, Representative Max Gruenberg, Alaska
State Legislature, on behalf of the sponsor, Representative
Gruenberg, explained that HB 14 would set forth in statute the
substance of the administration's recently-enacted regulations
establishing standards for the reimbursement of legal fees and
costs for exonerated executive branch employees accused of
ethical violations, and for the payment of certain travel
expenses for the families - spouse and children - of the
governor and lieutenant governor. Placing these standards in
statute rather than just in regulations would address concerns
that the regulations were enacted outside the scope of the
administration's authority, and would remove any appearance of
impropriety - that the executive branch created regulations that
would specifically benefit the executive branch. However, the
regulations and HB 14 differ in two ways. Under the
regulations, only the travel expenses of minor children could be
reimbursed, whereas under the bill, the travel expenses of any
dependent child - including, for example, a mentally or
physically disabled child - could be reimbursed even if he/she
were not still a minor; and under the regulations, the legal
fees and costs could be reimbursed before the executive branch
employee was exonerated, whereas under the bill, reimbursement
couldn't occur until after he/she was exonerated. She relayed
that the sponsor considers this latter difference to be a better
policy choice and safer for the State.
CHAIR GATTO observed that they wouldn't want to have paid the
legal fees and costs of someone who was never exonerated.
MS. STAFT concurred.
1:11:02 PM
MS. STAFT then went on to explain that specifically, Section 1
of HB 14 - in addition to making a minor stylistic change in AS
39.52.120(b)(6) to the term, "for partisan political purposes" -
would delete the definition of that term from that paragraph.
That definition [along with stylistic changes] would then be
included in Section 3's proposed AS 39.52.120(h). Section 2
would make a similar stylistic change to AS 39.52.120(f).
Section 3 would add two new paragraphs to AS 39.52.120:
proposed paragraph (g), and, again, proposed paragraph (h);
specifically, proposed paragraph (g) would authorize the use of
state resources to pay the travel costs of the spouse and
children of the governor or lieutenant governor to an event that
meets certain criteria. Under those criteria, the event cannot
have a partisan political purpose, and must be of benefit to the
state, as enumerated in proposed AS 39.52.120(g)(2)(A)-(D).
MS. STAFT, in response to a question, paraphrased Section 3's
proposed definition of the term, "partisan political purpose",
which read:
(h) In this section, "partisan political purpose"
(1) means a purpose intended to differentially
benefit or harm a
(A) candidate or potential candidate for
elective office; or
(B) political party or group;
(2) does not include a purpose intended to
benefit the public interest at large through the
normal performance of official duties.
MS. STAFT offered her understanding that this definition has
been interpreted clearly in the past.
1:13:48 PM
MS. STAFT, in response to comments and further questions,
paraphrased a portion of Section 3's proposed subsection
(g)(2)(A)-(D) to illustrate that under certain circumstances, a
physically or mentally disabled family member's travel costs
could be paid by the State; that proposed paragraph (2) reads:
(2) the person's attendance is a benefit to the state;
under this paragraph, a benefit to the state is
presumed when
(A) the person's attendance at the event is
required for official action of the state;
(B) the event is state-sponsored and the person's
attendance has been customary at similar events;
(C) the person is attending as an officially
designated representative of the state; or
(D) the person is invited by the sponsor of the
event before the transportation occurs, the event is
related to issues important to the state, the governor
or lieutenant governor attends, and
(i) the event is a family or youth event at
which the person's attendance is particularly
appropriate; or
(ii) the invitation and the person's
attendance have been customary for similar events.
MS. STAFT added that the sponsor thought it was fair to pay the
travel costs of a governor or lieutenant governor's mentally or
physically disabled dependent child regardless of his/her age,
and predicted that such probably wouldn't occur very often.
REPRESENTATIVE GRUENBERG, in response to a comment, and speaking
as the sponsor of HB 14, pointed out that the aforementioned
regulations already include a provision authorizing the payment
of a governor or lieutenant governor's minor child's travel
costs to certain events, adding that he felt such should also be
authorized for a disabled dependent child, otherwise the
governor or lieutenant governor, as a parent attempting to
conduct state business, could be put in a very difficult
position. He, too, predicted that this probably wouldn't occur
very often, particularly if the governor or lieutenant
governor's child is severely physically disabled.
1:18:15 PM
MS. STAFT went on to explain that Section 4 - proposed AS
39.52.470 - addresses the payment of legal fees and costs for an
exonerated executive branch employees accused of ethical
violations. Again, the difference between the aforementioned
regulations and the bill is that under the regulations, the
legal fees and costs could be paid before the executive branch
employee is exonerated, whereas under the bill, payment couldn't
occur until after he/she is exonerated, thereby precluding the
need for the State to recoup its payments in the event that the
executive branch employee is never exonerated. In response to
comments and questions, she pointed out that the language of
proposed AS 39.52.470(e)(2) stipulates that only the reasonable
and necessarily-incurred fees and costs for private legal
representation could be reimbursed by the State. She noted that
Rule 82 of the Alaska Rules of Civil Procedure outlines a lot of
the various factors the court would consider in determining
whether fees and costs were indeed reasonable and necessarily
incurred. Furthermore, proposed AS 39.52.470(a) stipulates that
if the executive branch employee is accused of multiple
violations, he/she could only be reimbursed for the fees and
costs associated with the charges he/she is exonerated of.
MS. STAFT, in response to questions, reiterated that the sponsor
feels it would be safer for the State, in terms of it protecting
its resources, to wait until after the executive branch employee
actually is exonerated and then reimburse him/her for associated
legal fees and costs, rather than to pay his/her legal costs and
fees in an ongoing case and then seek recoupment of those
payments when he/she isn't exonerated of ethical violations.
Waiting until a person is exonerated is also in keeping with the
laws pertaining to paying [legal] fees and costs incurred by
judicial branch employees. She noted that Legislative Legal and
Research Services was asked to research whether there were any
states that allowed for the payment of ongoing legal fees and
costs in advance of exoneration, but was unable find any in the
time allotted.
REPRESENTATIVE GRUENBERG - noting that Section 4 of the bill
applies to all executive branch employees, not just the governor
and lieutenant governor - explained that under Rules 79 and 82
of the Alaska Rules of Civil Procedure, a case has to be finally
disposed of before costs and fees are apportioned. He
characterized the regulations' alternative approach regarding
the payment of legal fees and costs as constituting a very
dangerous practice. It would be very difficult and problematic
for the State to seek reimbursement from a person who is
ultimately found to be guilty of embezzlement, for example,
particularly if he/she goes on the run after being found guilty.
MS. STAFT, in response to a comment, clarified that because it
would be the State bringing the charges against the executive
branch employee, the State couldn't pick who would represent the
employee, because doing so would be a conflict of interest. It
would be up to the employee to choose his/her own legal
representation.
1:32:50 PM
JUDY BOCKMAN, Assistant Attorney General, State Ethics Attorney,
Opinions, Appeals, & Ethics, Civil Division (Anchorage),
Department of Law (DOL), in response to a question and comments,
clarified that the Alaska Executive Branch Ethics Act provides
confidentiality for a complaint and all materials collected in
the investigation, and so once the complaint is filed, it is the
department's policy, as mandated by statute, to keep the matter
completely confidential - not commenting even on its existence
or its status. Although sometimes complainants publicly
announce that they have filed a complaint, there is no penalty
for doing so under the Alaska Executive Branch Ethics Act, and
to assess a penalty against complainants who speak out would
raise constitutional problems because the First Amendment allows
citizens to express concerns and complaints about their
government.
REPRESENTATIVE GRUENBERG, in response to earlier comments,
assured the committee that proposed AS 39.52.470(e)(2) was
written very carefully, with language very similar to that found
in the Alaska Rules of Civil Procedure, so as to ensure that the
legal fees and costs that could be reimbursed by the state would
be controlled.
CHAIR GATTO, after ascertaining that no one else wished to
testify, closed public testimony on HB 14.
MS. STAFT, in response to questions, offered her belief that
moving the definition of the term, "partisan political purpose"
from AS 39.52.120(b)(6) to AS 39.52.120(h) wouldn't result in
any substantive change to AS 39.52; and relayed that she isn't
aware of what the rationale was for providing a maximum
threshold of 10 percent in existing AS 39.52.120(f).
1:39:10 PM
REPRESENTATIVE KELLER [made a motion] to adopt Conceptual
Amendment 1, to insert on page 3, line 26, the word, "oriented"
after the word, "youth". There being no objection, Conceptual
Amendment 1 was adopted.
1:40:23 PM
REPRESENTATIVE THOMPSON moved to report HB 14, as amended, out
of committee with individual recommendations and the
accompanying fiscal notes. There being no objection,
CSHB 14(JUD) was reported from the House Judiciary Standing
Committee.