Legislature(2019 - 2020)GRUENBERG 120
02/17/2020 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB201 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 201 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 201-DEFENSE OF PUB. OFFICER: ETHICS COMPLAINT
1:08:01 PM
CHAIR CLAMAN announced that the only order of business would be
HOUSE BILL NO. 201, "An Act relating to legal representation of
public officers in ethics complaints."
1:08:14 PM
CHAIR CLAMAN stated that in the previous House Judiciary
Standing Committee meeting, members had asked for answers to two
specific questions in the case of an ethics complaint against a
judge: First, what happens? Second, who pays?
1:08:54 PM
NANCY MEADE, General Counsel, Office of the Administrative
Director, Alaska Court System, answered questions pertaining to
HB 201. She stated that the Alaska Commission on Judicial
Conduct handles ethics complaints filed against a judge, which
any citizen can file. She explained that the commission has
three attorneys, three public members, and is staffed by an
executive director. When a complaint is filed, the executive
director looks at the complaint to determine whether it is
frivolous and within the jurisdiction of the commission, meaning
it alleges an ethical violation and not something else. She
stated that the executive director will either dismiss the
complaint and notify the individual who filed it or start a
preliminary investigation if it is determined that the complaint
is not frivolous. Following that, the case could either be
dismissed and the complainant notified, or more investigation
could be undertaken if needed. She remarked that these
decisions by the executive director go through the commission to
ensure that the process is being undertaken properly. She
explained that, thereafter, the case could be dismissed, or it
could go to a formal hearing in which a judge is called to
defend himself/herself of the allegation(s). In this situation
a judge is entitled to hire an attorney at any point; the judge
must pay the attorney's fees himself/herself, as there is no
provision for any reimbursement.
1:11:16 PM
REPRESENTATIVE LEDOUX asked at what point the judge is notified
that a complaint has been filed against him/her.
1:11:38 PM
MS. MEADE replied that notification would happen during the
third stage, which happens if the executive director and
commission determine that further investigation is necessary,
not during the preliminary determination of frivolousness and
jurisdiction, or the preliminary investigation. In response to
a follow up question, she clarified that a judge is not even
aware that a complaint has been filed against him/her until the
process reaches the third stage. She added that the reason for
this is that complaints often come from litigants in active
cases, and it is a "better policy" that the judge does not know
of a frivolous complaint brought against him/her in a live case.
1:12:40 PM
CHAIR CLAMAN asked whether the general thinking around this
policy is that if a litigant were to make an ethics violation
complaint against a judge, and it resulted in getting a new
judge for that case, litigants might start commonly using this
as a means to switch out a judge that might be perceived to be
unfavorable.
1:13:08 PM
MS. MEADE answered that this is likely part of the consideration
for why the process occurs the way it does.
CHAIR CLAMAN asked whether the fees incurred by judges when they
retain counsel are disclosed to the Judicial Conduct Commission.
MS. MEADE replied that she does not think the court ever has
occasion to learn the amount of money someone spent on an
attorney to defend himself/herself against an ethics complaint.
1:13:44 PM
REPRESENTATIVE LEDOUX asked how often a case is dismissed once
it has made it past the first two stages of the process.
MS. MEADE answered that she thinks it is extremely rare for a
case to be dismissed once it has made it to the point that it is
public knowledge. She expressed that the executive director on
the commission has approximately 25 years of experience in the
judicial field, and it is known to be quite disruptive to have a
public complaint against a judge. She stated that once a
complaint becomes public it has been well examined and screened;
an exoneration is very rare after that has occurred.
1:14:53 PM
CHAIR CLAMAN asked how often judges have retained counsel to
represent them in proceedings, once the process has reached the
public complaint stage.
MS. MEADE replied that to her knowledge judges always retain
counsel if the process has reached the public complaint stage,
unless there is a case which she has not heard of in which a
judge chose to represent himself/herself. She added that these
proceedings are quite rare.
1:15:32 PM
CHAIR CLAMAN stated that there are three main issues he thinks
the committee should discuss: First, should the proposed
provisions apply to legislators? Second, should there be a
standard exoneration rate requirement for the state to pay the
fees, as in does the accused public official have to be the
prevailing party in all the allegations or just a percentage?
Third, should the state advance legal fees for private counsel
and require the public official to pay those fees back if he/she
is not exonerated on the claim; should there be a reimbursement
plan requiring public officials to "pay to be paid"; and should
there not be fee advancements unless the official has already
been exonerated?
1:17:13 PM
REPRESENTATIVE STUTES remarked that she does not know why these
rules shouldn't apply to legislators as well. She said that if
a rule should apply "across the board, it should apply across
the board."
1:17:29 PM
REPRESENTATIVE EASTMAN asked whether Representative Stutes means
across the board as in covering the judiciary as well as the
legislative and executive, or covering only two out of the three
branches.
1:17:45 PM
CHAIR CLAMAN commented that he thinks it would be two out of the
three branches. Given the testimony from Ms. Meade, the statute
structure, and the function of the Commission on Judicial
Conduct, the current proposed legislation would address only the
executive branch and the legislative branch.
1:18:05 PM
REPRESENTATIVE EASTMAN asked what limitations executive branch
employees would have to contend with that are parallel to the
limitations put on the legislative branch, regarding acceptance
of legal services.
CHAIR CLAMAN commented that the committee had not received any
additional input on that topic. He suggested that Dan Wayne
might be able to address this question.
1:18:45 PM
DAN WAYNE, Attorney, Legislative Legal Counsel, Legislative
Affairs Agency, Alaska State Legislature, asked for
clarification on the question.
1:19:08 PM
REPRESENTATIVE EASTMAN asked what limitations, like the $250
limitation placed on legislators when accepting gifts -
including legal help - are placed on executive branch employees
such as the governor or lieutenant governor.
MR. WAYNE, referencing AS 39.52.130, stated that there was not a
stated limit on gifts for the executive branch, just that any
gift over $150 must be reported. In response to a follow up
question from Chair Claman, he explained that there is a rule
under AS 39.52.130(a), which reads:
(a) A public officer may not solicit, accept, or
receive, directly or indirectly, a gift, whether in
the form of money, service, loan, travel,
entertainment, hospitality, employment, promise, or in
any other form, that is a benefit to the officer's
personal or financial interests, under circumstances
in which it could reasonably be inferred that the gift
is intended to influence the performance of official
duties, actions, or judgment. A gift from a person
required to register as a lobbyist under AS 24.45.041
to a public officer or a public officer's immediate
family member is presumed to be intended to influence
the performance of official duties, actions, or
judgment unless the giver is an immediate family
member of the person receiving the gift.
MR. WAYNE stated that this provision might apply in some cases,
depending on the facts involved, but otherwise he said it looks
like there is only a reporting requirement.
1:21:17 PM
REPRESENTATIVE EASTMAN commented that this sounds like another
way of saying "you're not allowed to bribe public officials,
which I think we're all probably okay with." He stated that the
reference to the Legislative Ethics Act is different in that
there is no nexus to any official or public action, just a
clearly stated cap. He expressed that that is the difference he
sees between the ethics provisions for the legislative and
executive branches.
MR. WAYNE commented that the main gift section of the
Legislative Ethics Act, under AS 24.60.080, is much longer than
that of the executive branch due to all the exceptions outlined
under the provision. He explained that there is a hard $250 a
year aggregate limit on gifts with several exceptions. He added
that there is another rule that prohibits accepting any gifts
from lobbyists, with very narrow exceptions, which would not
include a gift of legal services.
1:22:58 PM
CHAIR CLAMAN asked whether this statute prohibits a lawyer from
donating legal services to a legislator accused of an ethics
violation over $250, or whether it could be allowed if it is
disclosed.
MR. WAYNE replied that AS 24.60.080(c)(8) points out that
"notwithstanding (a)(1) of this section, it is not a violation
of this section for a person who is a legislator or legislative
employee to accept a gift of legal services in a matter of
legislative concern and a gift of other services related to the
provision of legal services in a matter of legislative concern."
He said that the question comes down to what a matter of
legislative concern is, which is not defined. He expressed that
beyond that he was not sure what the answer is, but he could do
some research and find out if the ethics committee has
considered this question before.
1:24:14 PM
REPRESENTATIVE LEDOUX asked whether a legal defense fund exists
for legislators and, if so, what its role is in this situation.
1:24:26 PM
MR. WAYNE replied that he does not think there is a provision
specifically allowing for reimbursement of complaint related
legal fees to be paid to legislators, or a legal fund to be set
up for them.
1:24:59 PM
REPRESENTATIVE LEDOUX commented that she recalled a contested
election in the Utqiagvik area, in which the incumbent
legislator set up a legal defense fund. She expressed that she
would like to know how that came to pass and its place in this
scenario.
MR. WAYNE responded that he was not familiar with that scenario,
but it could be related to a matter of legislative concern
instead of an ethics complaint. He expressed that he has been
unable to find any authority showing that there has been
reimbursement of legal fees for an ethics complaint to any
legislator or legislative employee.
1:26:06 PM
CHAIR CLAMAN commented that a legal defense fund might be a
different question, because if it is raising money from members
of the public to pay for a legal defense, then presumably the
fees of the lawyer are payed by the legal defense fund and it is
not a contribution from the lawyer.
1:26:26 PM
REPRESENTATIVE LEDOUX stated that it is her understanding that
over $250 a person can be raised for a legal defense fund
without running into an ethical violation, although it is not
allowed to be raised from lobbyists.
1:26:51 PM
MR. WAYNE replied that the type of fund being described does not
sound like an ethics complaint fund, but rather some other kind
of legal issue where the money from the fund is used to pay for
representation in litigation for that issue, not to reimburse
the legislator for money he/she laid out for an ethics
complaint.
1:27:30 PM
CHAIR CLAMAN commented that he agrees that this sounds like the
case in the example described by Representative LeDoux, but he
thinks that there was a time when Congressman Don Young was
facing various ethics and other complaints, and he raised a
significant amount of money with a legal defense fund which he
used to pay his legal fees. He expressed that it seems there
are examples in Alaska of people raising legal defense funds,
although it is not clear if these applied to state legislators.
MR. WAYNE remarked that the Legislative Ethics Act does not
apply to Congressman Don Young.
CHAIR CLAMAN agreed with Mr. Wayne that the Legislative Ethics
Act does not apply to a congressman.
MR. WAYNE suggested that perhaps Chair Claman was referring to
Alaska Public Offices Commission (APOC) regulations or statutes,
regarding the regulation of raising money for a campaign of some
kind.
1:28:25 PM
REPRESENTATIVE EASTMAN commented that APOC has published the
opinion that campaign funds may be used for contesting election
results as a part of the election process; however, the funds
are not going to the individual legislator, they are going
straight from the campaign to the attorney. He stated that the
[U.S.] congressional ethics rules regarding legal defense funds
are well established and lengthy. He stated that Alaska does
not have any rules like that, although some people say that
there should be. He expressed that his understanding of the
Ethics Committee's interpretation of defense in an ethics
complaint is that it is a private concern, which means that a
$250 limit would apply to any legal help being received. He
expressed that his understanding is that there is no situation
in which a legislator can accept any help over $250; currently
there is no reimbursement process laid out for legislators. He
expressed that he might be sympathetic to making regulations
which apply to the executive branch apply "across the board," as
there are occasions when a complaint made could justify
reimbursement. He suggested that the rules regarding a $250
limit should be investigated to ensure that they do not
interfere with a legislator's ability to mount a legal defense.
He summarized that he would find it problematic if a legislator
were to find himself/herself in a situation where he/she did not
personally have the funds to pay for a defense and he/she could
not accept funds from any source.
1:31:30 PM
REPRESENTATIVE LEDOUX commented that she thinks the reason these
rules should extend to the legislative branch is that currently,
an informal process exists in which the chair of the Legislative
Council has the authority to reimburse legislators, which has
happened in the past; however, this process is "not written down
anyplace." She suggested that a specified standard should be in
place so that all legislators would have access to
reimbursements, as opposed to the current process in which only
legislators who have been informed of the process by word of
mouth know about them.
1:32:40 PM
CHAIR CLAMAN commented that it is one thing to say that a
legislator can't except gifts, and another to determine whether
the fees advanced for a defense, in an allegation that a
legislator has acted outside the scope of his/her authority,
should be reimbursed if that legislator is exonerated or
receives some degree of exoneration. He clarified that this is
different from receiving representation from a lawyer that does
not charge. He expressed that possibly the determination might
be that "we" are comfortable with that level of pro bono
representation.
1:33:31 PM
REPRESENTATIVE LEDOUX suggested that the discussion on gifts may
not be important in the context of HB 201, if the determination
is that a procedure should be in place that a legislator or the
governor can be reimbursed for expenses that he/she has laid out
or, in the event that he/she cannot afford the expenses, that
the state should pay for an attorney with the "proviso that the
funds be repaid." She stated that the topic of gifts might be
important in another discussion, but she does not think it needs
to be resolved at this specific point in time.
1:34:30 PM
REPRESENTATIVE EASTMAN commented that the concern would be that
if an individual has to "come up" with the money first, in order
to go through the process that would allow for him/her to be
reimbursed, then it could create a situation in which someone
can only be reimbursed if he/she has a significant amount of
money to begin with. He remarked that he does not think "we
want to do that."
1:35:00 PM
CHAIR CLAMAN offered that a counter to the scenario suggested by
Representative Eastman would be whether the state should be
advancing money when someone is alleged to have acted outside
the scope of his/her authority and is found to have, in fact,
acted outside of his/her authority. He remarked that that
person may not have the ability to pay the money back,
regardless of whether he/she is required to. He suggested that
a stronger case could be made for reimbursement when a claim is
dismissed than when it is found that someone has been acting
outside his/her authority. He summarized that the general sense
he is getting from the committee is a reception to modifying HB
201 to add legislators to the people covered under the proposed
legislation.
1:35:57 PM
REPRESENTATIVE LEDOUX pointed out her understanding that current
regulations allow the executive branch to hire an attorney and
for there to be a reimbursement prior to a determination of
guilt or innocence. She expressed that she would not be
inclined to change this regarding the executive branch, as she
thinks that there would be a multitude of complaints against an
official regardless of who he/she is, that is just "the nature
of politics today." She summarized that a person should not
have to be independently wealthy in order to be a public
servant.
CHAIR CLAMAN stated that the next topic of discussion would be
whether there should be a standard exoneration rate requirement
for the state to pay an official's fees, as in: Should the
accused public official have to be the prevailing party on 100
percent, 90 percent, or 75 percent of the allegations?
1:37:52 PM
REPRESENTATIVE EASTMAN commented that he thinks when there are
multiple complaints brought against an official, each complaint
should be treated separately; an exoneration should allow for
reimbursement on that specific complaint only.
1:38:25 PM
REPRESENTATIVE LEDOUX asked how reimbursements are determined in
public interest litigation.
1:38:38 PM
CHAIR CLAMAN replied that the committee had not researched that
topic; however, he knows there are cases about what a prevailing
party is in public interest litigation. He commented that he
had not looked at any of these cases for at least 20 years and
his memory on them was unreliable. He remarked that
Representative Eastman's question raised an interesting point
regarding reimbursements for multiple complaints. As an
example, he referenced a hypothetical situation in which a
"Legislator Smith" had a complaint filed against him/her on the
first of January with one allegation, and another complaint
filed with one allegation on the first of July. He explained
that it would be easy to distinguish between the fees accrued
for each allegation; however, if instead on the first of January
the complaint contained six different allegations, the reality
is that the lawyer retained by Legislator Smith would look at
all six allegations collectively and respond collectively. This
would make it difficult to distinguish which fees covered a
specific allegation for reimbursement purposes. He summarized
that in some instances it might be easy to distinguish one
allegation from the next, but in others it would be muddled.
CHAIR CLAMAN remarked to Representative LeDoux that his sense of
the committee is that it would probably like to know more about
public interest attorney's fees. In response to a follow up
question from Representative LeDoux, he asked Mr. Wayne whether
he has done research into prevailing party attorney's fees in
public interest litigation.
1:41:00 PM
MR. WAYNE answered that he recalls reading a statute over 15
years ago on a court rule. He added that he couldn't answer the
question currently but could try to find an answer.
1:41:26 PM
REPRESENTATIVE EASTMAN remarked that another factor worth
considering is that in some public interest cases, such as a
constitutional rights case, a person cannot be required to cover
the legal fees of the opposing party, regardless of whether that
individual prevails on the case.
1:42:02 PM
CHAIR CLAMAN stated that the third question before the committee
was whether the state should advance fees regardless of the
outcome of the case, and how it should be dealt with when
someone does not prevail on a claim filed against him/her. He
commented that Representative LeDoux had expressed a view that
the "fees should be advanced and just see what happens" and then
"cross that bridge" when there is a question of reimbursement
and whether the individual can cover repayment.
1:42:44 PM
REPRESENTATIVE LEDOUX responded that she thought that the way
the process works in the executive branch is that the official
can either ask for reimbursement or, if he/she doesn't have the
money, he/she can ask for the state to pay, and her "gut
reaction" is to let that rule apply to the legislature as well.
1:43:19 PM
REPRESENTATIVE STUTES remarked that she does not think the state
should advance fees. She said that she thinks it would be
difficult to recover the fees and would be inappropriate.
1:43:51 PM
REPRESENTATIVE EASTMAN recalled a situation from his "part of
town," in which a legislator was assessed some fees by the state
and a payment plan was put together. He stated that this has
happened at least once or twice, so he could see how it could
happen in a situation like this as well.
1:44:15 PM
CHAIR CLAMAN commented that it sounded like Representative
Eastman was "in Representative LeDoux's camp" and would be
comfortable with the state potentially advancing fees, and if
the accused individual ends up not getting an exoneration, then
he/she would either have to pay back the fees or come up with a
payment plan.
1:44:28 PM
REPRESENTATIVE EASTMAN replied that he thinks it would be nice
to have a standard across the board, and he sees a problematic
nature in the current system, whereas sometimes a legislator can
receive money from the Legislative Council, other times a
legislator may not even be aware it is a possibility. He
summarized that he would like to see a more uniform system.
1:44:52 PM
REPRESENTATIVE LEDOUX commented that her intent with HB 201 was
not to make things more difficult for the executive branch than
they currently are; her intent was to incorporate the old
regulations into statute. She added that the discussions the
committee had regarding prevailing parties and whether the
proposed legislation should apply to the legislature leads to
the question of whether the standards should be the same for the
legislative branch and executive branch.
1:45:56 PM
CHAIR CLAMAN suggested that the committee go off record to
discuss a reasonable timeline for HB 201 moving forward, as it
seemed to him that the existing legislation would need to be
amended.
1:46:30 PM
The committee took an at-ease from 1:46 p.m. to 1:47 p.m.
1:47:54 PM
CHAIR CLAMAN announced that HB 201 would be held over for
further review.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 201 v. U 2.10.2020.PDF |
HJUD 2/10/2020 1:00:00 PM HJUD 2/17/2020 1:00:00 PM HJUD 2/24/2020 1:00:00 PM |
HB 201 |
| HB 201 Sponsor Statement 2.10.2020.pdf |
HJUD 2/10/2020 1:00:00 PM HJUD 2/17/2020 1:00:00 PM HJUD 2/24/2020 1:00:00 PM |
HB 201 |
| HB 201 Fiscal Note LAW-CIV 2.8.20.pdf |
HJUD 2/17/2020 1:00:00 PM HJUD 2/24/2020 1:00:00 PM |
HB 201 |