Legislature(2011 - 2012)CAPITOL 106
01/25/2011 08:00 AM House STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| HB21 | |
| HB14 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 21 | TELECONFERENCED | |
| *+ | HB 14 | TELECONFERENCED | |
HB 14-EXEC ETHICS: LEGAL FEES/FAMILY TRAVEL
8:42:42 AM
CHAIR LYNN announced that the last order of business was 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."
8:43:02 AM
GRETCHEN STAFT, Staff, Representative Max Gruenberg, Alaska
State Legislature, presented HB 14 on behalf of Representative
Gruenberg, sponsor. She stated that HB 14 would put in statute
the attorney general's proposed regulations [establishing
standards regarding legal fees resulting from ethics violation
accusations and payment of travel expenses for families of the
lieutenant governor and governor]. She said the proposed
legislation would address "the appearance of impropriety"
related to the executive branch creating its own regulations.
MS. STAFT offered a sectional analysis of HB 14. She noted that
on page 2, line 10, there is a stylistic change from "partisan
political purposes" to "partisan political purpose". Also in
Section 1, the definition of partisan political purposes is
deleted from page 2, lines 14-23. Ms. Staft pointed out that in
Section 2, on page 2, line 25, there is a change that conforms
with that in Section 1, such that "partisan political purposes"
is changed to "partisan political purpose". Ms. Staft related
that Section 3 addresses the issue of resources used for
transporting the spouse or child of a governor or lieutenant
governor. She said the attorney general defines a "child" as a
minor, while HB 14 defines "child" [on page 3, lines 7-10, which
read as follows]:
a biological child, an adoptive child, or a stepchild
of the governor or lieutenant governor and is under 19
years of age or, without regard to age, is dependent
on the governor or lieutenant governor for care
because of a physical or mental disability.
MS. STAFT stated that under HB 14, state resources could be used
by the governor or lieutenant governor to pay for family travel
in two ways. First, the governor or lieutenant governor could
travel with the family member and subsequently reimburse the
state. Second, the governor or lieutenant governor would be
able to use state funds toward a family member's travel expenses
is that travel expense is seen to be; and if the attendance of
the person is of benefit to the state. The situations in which
the latter would be considered are enumerated on page 3, lines
15-29.
8:48:54 AM
MS. STAFT directed attention to Section 4, regarding ethics
violations, and said under HB 14, the state would be authorized
to reimburse a state employee who was recused after being
charged with an ethics violation. Currently the state can pay
the ongoing fees before the employee is exonerated. She said
the sponsor thinks that it is a better idea to wait until the
person is exonerated before the state puts forth those fees.
She said the funds could only be put forward by a state agency
that may lawfully put forth that payment. Ms. Staft then
related that Section 4 also contains definitions for
"exonerated" and "fees and costs of private legal
representation", beginning on page 4, line 22, through page 5,
line 3. She drew attention to Section 5, on page 5, lines 6-8,
which shows that the bill, if adopted, would not be retroactive.
8:51:57 AM
MS. STAFT, in response to a question from Chair Lynn, said she
does not know the cost of an ethics violation for which the
alleged offender is later exonerated. She offered to find out,
but also deferred to Judy Bockmon, an assistant attorney general
with the Department of Law.
8:53:16 AM
MS. STAFT, in response to questions from Representative Seaton
regarding the details behind exoneration, offered her
understanding that the attorneys for the employee would have to
keep detailed records of "hourly expenditures on each issue."
Therefore, if three ethics claims were brought against a person
and two of those claims were dismissed, then that person could
recover whatever legal fees and costs were incurred as a result
of the two exonerated claims brought against him/her. She said
the onus would be on the employee and his legal council to
identify the purpose of the fees and to show when those fees
were incurred.
REPRESENTATIVE SEATON said he does not think the wording in bill
makes that clear. He requested more details from the sponsor.
8:56:00 AM
MS. STAFT, in response to Chair Lynn, said she is not aware of
any discussion having taken place regarding the possibility of
requiring reimbursement from a complainant when an ethics
violation claim does not result in an ethics violation. She
said she would ask the sponsor about that issue.
8:58:11 AM
REPRESENTATIVE KELLER observed that the bill does not seem to
address the issue of excessive accusations, and he asked if the
sponsor predicts an increase in accusations in the future. He
explained that he is curious why the bill is being brought
forward. He directed attention to page 4, beginning line 22, to
the definition of "exonerated". He opined that this sentence
seems to give too much power to the courts to give corrective
action that would undo intent. He said he would like feedback
from the sponsor on that issue.
9:00:30 AM
MS. STAFT said she will speak to the sponsor about that. In
response to another question, she offered her understanding that
the statutes listed in the bill are the only ones tied to the
proposed legislation.
9:01:42 AM
REPRESENTATIVE P. WILSON, regarding the reimbursement of "fair
market value of the person's transportation", observed that the
cost of a seat on a commercial airline would be easy to
calculate, while it would not cost any more for the governor,
for example, to bring one or two family members with him on a
state-owned plane.
CHAIR LYNN added that that same idea may apply to travel on
military aircraft to a military function.
9:02:49 AM
MS. STAFT offered her understanding that such scenarios would be
covered under HB 14, and she said she would confirm that for the
committee at a future meeting.
9:04:51 AM
MS. STAFT, in response to a question from Representative Keller,
confirmed that the only regulatory change proposed in Section 3
is the definition of child, and that the purpose is to eliminate
the appearance of impropriety.
9:06:43 AM
MS. STAFT, in response to a question from Representative Seaton
regarding the term "necessarily incurred" on page 4, line 31,
said there would be an inquiry into whether a fee or cost was
necessarily incurred. She stated, "The burden would be on the
employee and legal council to prove that, but basically we're
looking at industry standards."
REPRESENTATIVE SEATON requested the sponsor get a legal opinion
to accompany the bill packet.
9:08:21 AM
JUDY BOCKMON, Assistant Attorney General, State Ethics Attorney,
Opinions, Appeals, & Ethics, Civil Division (Anchorage),
Department of Law (DOL), echoed Ms. Staft's comments that
currently there are regulations in place regarding the two
topics covered in HB 14. She said the difference is that the
bill addresses statute, whereas regulations are "setting
standards to interpret the act." Regarding Chair Lynn's
previous query as to how much money the state has spent in
defending ethics complaints regarding the governor, she said she
does not know. She noted that former Governor Sarah Palin "has
defended herself." She said there have not been other instances
where council has been hired for another governor or a
lieutenant governor or other state officer other than in one
circumstance in the last couple years, and in that situation the
person was not exonerated. She added that the administration
has, through its risk management system, done some
representation of state officers; however, she indicated she
does not know if any of that was done under the Ethics Act. She
said Governor Palin's situation aside, during the last ten
years, "the number of cases in which there has been defense
council ... has been relatively small."
9:11:24 AM
MS. BOCKMON, in response to a prior question from Representative
Seaton regarding apportionment of a claim, said regulation
requires that the public officer provide clear documentation
that the expenses were limited to the violation for which the
officer was exonerated. Regarding the term "necessarily
incurred", she said there is a practice of review in a court
system for attorneys' fees requests. She continued as follows:
In addition to the comment regarding ... clear
evidence that it relates to the exonerated claim, we
extended our regulation on ... reasonable expenses
necessarily incurred ... to include evaluation of
complexity, the rate charge, the hours extended, the
relationship between the amount of work performed and
the significance of the claim, and several ... other
relevant factors depending on the circumstance. So, I
think that ... what is certainly contemplated is that
when a person makes a claim for reimbursement or
payment of their attorney's fees, the request will be
examined for reasonableness to ensure that these were
necessarily incurred in the language of the
[regulations] and the proposed statute, and that ...
if it's a situation where there are multiple claims
and there's a basis for separating out claims on which
a representative's been exonerated from perhaps
another violation, we'll be able to do so.
9:13:55 AM
MS. BOCKMON, regarding Representative Keller's previous question
about corrective action, referred to the language in the bill
addressing dismissals [in Section 4, subparagraph (A)] and the
statutes listed there. She indicated that [AS 39.52.310(d)]
addresses the initial review stage, [AS 39.52.320] addresses
dismissal for finding no probable cause after an investigation,
and [AS 39.52.370(d)] addresses dismissal after public hearing
by the board. She mentioned [AS 39.52.370(f), in subparagraph
(B), which addresses dismissals following an appeal], and [AS
39.52.330, in subparagraph (C), which addresses an allegation
"resolved solely with a recommendation for preventive action"].
Ms. Bockmon continued as follows:
And so, the definition of exonerated is intended -
both in the regulations and in Representative
Gruenberg's bill - to cover all of those situations in
which we could ... end up with something other than
simply a clean dismissal and finding of no ...
violation. And the contemplation would be [that]
these would not be available in any situation where
the matter was not cleanly dismissed. That is if we
come to terms to settle on some corrective action -
which is what most often happens when there is a
violation - that would not mean exoneration, even
though a person may not admit to a violation.
9:16:45 AM
MS. BOCKMON, in response to Chair Lynn, said the department has
not looked at [recovering fees from the complainant if there is
an exoneration], and she said she did not know if it would be
possible to do so under current statute.
9:18:21 AM
REPRESENTATIVE SEATON recalled a past bill that proposed a
$5,000 fine if a filed ethics complaint was later dismissed. He
stated that the issue is whether the public would be discouraged
to file for fear of a potential huge bill if the ethics
complaint is found in favor of the defendant.
9:19:54 AM
REPRESENTATIVE PETERSEN pointed out that in a situation in which
a person or group has filed a complaint that turns out to be
valid, that person or group has often put forth a lot of money
and is not reimbursed. He said the bill does not address that
issue.
9:20:35 AM
MS. BOCKMON, regarding Representative Wilson's previous question
as to travel expenses for family members of the governor or
lieutenant governor, noted that an opinion was prepared in 2004
or 2005 that suggested that it was inappropriate for the person
involved to be traveling on the state's aircraft at the state's
expense for other than state business. She said the
consideration is of benefits, not just cost.
9:22:43 AM
CHAIR LYNN announced that HB 14 would be held over.
| Document Name | Date/Time | Subjects |
|---|---|---|
| 01 HB0021A.pdf |
HSTA 1/25/2011 8:00:00 AM |
HB 21 |
| 02 HB 21 Sponsor Statement Final.pdf |
HSTA 1/25/2011 8:00:00 AM |
HB 21 |
| 03 HB021-DHSS-SPC-01-21-2011.pdf |
HSTA 1/25/2011 8:00:00 AM |
HB 21 |
| 01 HB 14 A.pdf |
HSTA 1/25/2011 8:00:00 AM |
HB 14 |
| 02 HB 14 Sponsor Statement.pdf |
HSTA 1/25/2011 8:00:00 AM |
HB 14 |
| 03 HB 14 Legal Opinion - Exec. Ethics.pdf |
HSTA 1/25/2011 8:00:00 AM |
HB 14 |
| 04 HB 14 Exec. Ethics - Relevant Regs (1).pdf |
HSTA 1/25/2011 8:00:00 AM |
HB 14 |
| 05 HB 14 Sectional Analysis.pdf |
HSTA 1/25/2011 8:00:00 AM |
HB 14 |
| 06 HB014-LAW-CIV-01-21-11.pdf |
HSTA 1/25/2011 8:00:00 AM |
HB 14 |
| 01A CS for HB21 Version B.pdf |
HSTA 1/25/2011 8:00:00 AM |
HB 21 |