Legislature(2021 - 2022)BELTZ 105 (TSBldg)
03/09/2021 03:30 PM Senate COMMUNITY & REGIONAL AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| SB15 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | SB 15 | TELECONFERENCED | |
SB 15-OPEN MEETINGS ACT; PENALTY
3:33:00 PM
CHAIR HUGHES announced the consideration of SENATE BILL NO. 15
"An Act relating to the Open Meetings Act; and establishing a
civil penalty for violations of the open meeting requirements by
members of governmental bodies."
3:34:29 PM
CHAIR HUGHES opened public testimony on SB 15.
3:35:00 PM
DARREL W. HESS, Municipal Ombudsman, Municipal Ombudsman's
Office, Municipality of Anchorage, Anchorage, Alaska, testified
in opposition to SB 15. He asked committee members who will own
the statute because the Alaska Open Meetings Act (OMA) currently
is civil enforcement. A person who is aggrieved has to file in
superior court, it is a self-serve civil remedy much like the
Alaska Landlord and Tenant Act.
He questioned which department will own, enforce, and assume the
associated cost for the law. He noted the fines are not to
exceed $1000, but he wondered who will determine the amount of
the fine, and what factors or analysis will be used to make the
determination. Governmental bodies currently have the
opportunity to fix their oversight by way of a do-over, but he
questioned whether members of governmental bodies will be given
the chance to correct the oversight before fines are imposed.
The OMA currently makes distinctions between advisory bodies and
those that have the authority to make policy or decisions for a
governmental entity. However, he questioned whether the
distinctions would factor into consideration of any fines.
MR. HESS said based on the meaning of "public official" in AS
39.50.200(a)(9), the provision applies to all uncompensated
volunteer members of local government boards and commissions,
service area boards, and road service area boards. He noted he
is concerned the change from the bill would discourage citizens
from coming forward and volunteering to do their civic duty. He
pointed out most alleged OMA violations that he has investigated
over the past nine years were related to lack of proper public
notice.
He said the legislation would be difficult to enforce and
costly. The meaning of "knowingly" in the statute is very hard
to prove. He said given his experience investigating alleged OMA
violations, SB 15 appears to be a solution in search of a
problem. The cost associated with implementation and enforcement
of the new statute would far outweigh any tangible benefit to
the public.
3:38:09 PM
MARIO BIRD, Attorney, Alaskans for Open Meetings, Anchorage,
Alaska, testified in support of SB 15. He said he will mention
some of the wonderful things about the OMA policies that the
legislature has put into place. AS 44.62.312 states that it is
the intent of the law that the actions of those governmental
units be taken openly, that their deliberations be conducted
openly; SB 15 is going to encourage local government officials
to do this. Subsection 4 in the statute does not give public
servants the right to decide what is good or not good for the
people to know. The statute is a great policy.
He noted when the statute was enacted, many people in the state
bureaucracy testified against it. The legislatures included the
statute and when the 1985 teleconferencing amendments came in
the policy remained intact. At that time, Robin Taylor, who was
a state representative, an administrative law judge, and
attorney reminded members of the body of the need to approach
boards, commissioners, and legislators in person, and that in
person testimony is vital to the OMA; that is much of what the
Alaskans for Open Meetings stand for.
MR. BIRD explained in addition to Senator Stevens in 1966 trying
to put in a civil penalty for local legislators (not state
legislators) who break the OMA, Dave Donley said the same thing
in the Judiciary Committee in 1993. He referenced the minutes
from Mr. Donley's testimony as follows:
One of the big flaws in the law right now is that
there is no individual responsibility for public
officials, there is not recourse against them for
violating the law.
He said the lineage of SB 15 follows what Senator Donley put
forward and what Representative Stevens said in 1966. He
summarized, "We need to incentivize local governments to follow
the law."
3:40:25 PM
PETE PETERSON, representing self, Anchorage, Alaska, testified
in opposition to SB 15. He noted he currently serves on the
Anchorage Assembly. He explained his intent is to provide a
prospective on open meetings requirements, since he has been
working under those rules on the assembly for the last seven
years. He added he previously served in the Alaska State
Legislature. There is a learning curve when going from the
legislature to the assembly. Legislators could make as many
appointments as they wanted and speak with their legislative
colleagues about bills. However, assembly members can only speak
with two different assembly members on an item.
He said he experienced a situation six years ago where he and an
assembly colleague went to lunch after a work session and two of
his other assembly colleagues entered the restaurant. He noted
he made his presence known to avoid an OMA violation and his two
other colleagues went somewhere else. However, if he and his
assembly colleague did not notice their other assembly
colleagues, they would not have known their presence and there
could have been an OMA violation. If SB 15 would have been on
the books, they might have been subject to a $1000 fine.
He noted the Municipal Clerk's Office in Anchorage does a great
job of noticing meetings, but it is impossible for them to be
aware of all gatherings where three assembly members might be
present. Assembly members are all aware of the open meetings
requirements because it is covered in the initial training
assembly members receive shortly after being elected to the
position. Assembly members take the responsibility themselves to
make sure there are no more than three members at any location
at the same time.
MR. PETERSON stated he believes that changing the OMA by adding
a $1000 fine would not only affect the assembly, but also other
elected officials, service area boards, and commissions around
the state. Many people who are on boards or are elected
officials in Alaska are not paid or they receive a small
stipend. The change to the OMA to add a fine for a violation can
serve to make it more difficultif not impossibleto find people
to volunteer for board and commission positions. Locating people
who are interested in serving on boards is already challenging
and adding a fine will end up doing more harm than good.
3:43:31 PM
KATE VOGEL, Anchorage Municipal Attorney, Municipality of
Anchorage, Anchorage, Alaska, testified in opposition to SB 15.
She said the legislation is premised on the false narrative that
the Anchorage Assembly violated the OMA in August 2020, and that
such conduct needs stiffer penalties. The Anchorage Assembly's
COVID-19 precautions where lawful and are nearly identical to
the precautions currently on display at the Alaska State
Capitol.
She said in the midst of the pandemic, the Anchorage Assembly
held open meetings in August 2020 that were accessible to the
public on television and live streamed over the internet. The
public was able to testify in writing and by phone. Some
assembly and administration members attended by phone, others
were in assembly chambers in front of the cameras and the press.
The limits on in-person attendance in favor of remote
participation were challenged by those who disagreed with the
outcome of the assembly votes. A court has already preliminarily
rejected arguments that the Anchorage Assembly violated the OMA.
MS. VOGEL stated SB 15 is being proposed as a tool to punish
elected officials and the committee should reject the attempt to
turn the OMA into a partisan tool. The OMA currently
appropriately prioritizes openness in government. The central
focus of the act is on ensuring that government actions comply
with the openness requirements.
She explained under current law there is a preferable remedy for
any violation which is to give the governmental body the
opportunity to fix the problem by revisiting and reenacting any
infirm legislation in an open to the public session. A focus on
process rather than penalty appropriately reduces the incentives
for individuals on the losing side of a robust, political debate
to use the OMA to score political points.
MS. VOGEL said when the legislature enacted the OMA, the body
deliberately rejected the option to impose a fine for a
violation and that remains the right decision. The OMA already
has [inaudible], including the ability to file litigation,
ethics complaints, and seek recall against officials.
She stated changing the OMA structure from one that promotes
remediation and openness in meetings to one that encourages
penalties will actually disincentivize the ability of a
governmental body to remediate the problem by having an
individual liability for the officials that make it difficult to
simply have a second meeting that solves the problem, and it
will incentivize politicizing what is otherwise a very important
and open law within Alaska.
3:46:48 PM
NILS ANDREASSEN, Executive Director, Alaska Municipal League,
Juneau, Alaska, testified in opposition to SB 15. He said the
Alaska Municipal League (AML) has 164 members who operate under
the statutory requirements already of the OMA. AML has noted
that the bill has brought applicability and in fact would impact
thousands of local elected officials, committee or commission
volunteers, and municipal employees.
He stated AML wants to be clear that Alaska's local governments
and public officials adhere to the laws. AML has not seen any
evidence that violations occur or regularly occur, nor any
indication that in fact this is a widespread problem at all. He
questioned how one justifies a penalty and law for violations
that are extremely uncommon, and justification is even harder
when the body legislating a penalty is itself exempted from that
same law. The effect from the bill will chill participation in
local processes, not because these processes violate the law,
but because of the potential risks to individuals whose sole
intent is to serve the public's interest.
MR. ANDREASSEN said SB 15 does not reflect the reality of the
lawful operations of Alaska's 165 cities and boroughs, their
planning, port and harbor, public safety commissions, and the
thousands of Alaskans who have stepped up to serve in some small
way for the betterment of their communities. The OMA balances
the legislature's interest in a transparent and accountable
process for the state's political subdivisions, while
encouraging public participation in those institutions.
MR. ANDREASSEN stated the fact that violations of the OMA law
come with undoing of the action taken make it unreasonable to
act outside of the law already. The addition of a fine brings
into this democratic process enough uncertainty and risk as to
dissuade participation. AML is always happy to volunteer its
time to serve as invited testimony on bills that affect local
governments, to be available for questions as the committee
wrestles with municipal issues, and to be a resource for the
Senate Community and Regional Affairs Committee.
3:49:08 PM
VALERIE MCKAY, representing self, Anchorage, Alaska, testified
in support of SB 15. She said the $1000 fine is exactly what
needs to happen because an individual will not violate the OMA
again. She noted there were internet connection, video, and
sound issues during the noted Anchorage Assembly meeting in
August 2020.
3:51:11 PM
NORM WOOTEN, Director of Advocacy, Association of Alaska School
Boards, Juneau, Alaska, testified in opposition to SB 15. He
said the [Association of Alaska School Boards] (AASB) is in full
support of the OMA. AASB routinely gets 25-30 requests per month
from school boards and school districts for questions on a
variety of topics, typically about half of those queries are
about OMA.
He stated school boards are cognizant of OMA, are wary of
violating the act, and that is the reason they ask for AASB
assistance. Additionally, at the onset of COVID-19, AASB
consulted with its attorney and developed processes that
permitted digital meetings while still complying with OMA. AASB
held webinars to make certain AASB boards would remain compliant
and amended its model board policy so the board could make
changes and ensure their policies were also in compliance with
OMA. School boards clearly understand their responsibility for
compliance with OMA and take appropriate steps to ensure
compliance.
He said his belief is that there needs to be a clear purpose for
any new law and there is no need for amending OMA to financially
and personally threatened volunteer elected officials with a
civil penalty of up to $1000, individuals who are doing good
work as elected officials, they are law abiding, and he finds
questioning their adherence to the law as disingenuous.
3:53:03 PM
FRANK MCCLEARY, President, Alaskans for Open Meetings,
Anchorage, Alaska, testified in support of SB 15. He stated he
thinks there is a certain amount of disingenuousness because
everybody is equating the bill with the issues of the
Municipality of Anchorage (MOA), but the two are totally
separate issues.
He said the courts will settle the lawsuit by Alaskans for Open
Meetings with MOA to determine whether there was any infraction.
However, what became apparent is the lack of consequence and a
lack of accountability in the public process that leads to a
certain degree of contempt for the public. If there is a law on
the books and people violate that law, there should be some
consequences.
MR. MCCLEARY noted Ted Stevens recognized the lack of
consequence in the 1960s when he tried to make an amendment with
some financial penalties. Fifty States have open meeting laws
that have varying degrees of penalty, including fines,
misdemeanor charges, felony charges, amounts of money varying
from $50 to $50,000. The legislature decides what is best for
Alaska and not what is best for the municipality, government
employees, or making their jobs easier. The public is part of
the process, and their voices need to be heard.
MR. MCCLEARY stated since MOA insists on putting the lawsuit in
the middle of the matter, the penalties for [Alaskans for Open
Meetings] in filing a lawsuit are tremendous, the burden is huge
to raise money. The case will obviously go to the Alaska Supreme
Court and the law fees for [Alaskans for Open Meetings] will
probably approach $250,000. [Alaskans for Open Meetings] has
skin in the game, but the bureaucrats have no skin in the game
because they are not paying for the lawsuits. Also, [Alaskans
for Open Meetings] individual members have been subject to
lawsuit threats. He concluded, "accountability is everything."
3:55:36 PM
EDWARD MARTIN, representing self, Cooper Landing, Alaska,
testified in support of SB 15. He said the fine should be more
than $1000,; it should be $5000. He noted there are also federal
laws to affect the actions by people trying to do something
outside of the transparency and accountability that takes place
when individuals are participating in [open meetings]. People
serving on boards and commissions are public servants. The
legislation sends a strong message to anyone who would rather
have a closed meeting. All public meetings should be in the open
eye of the public.
MR. MARTIN referenced a U.S. code regarding deprivation of
rights. He questioned if any violation in the OMA would cause a
violation under the federal code, particularly if a law were
passed. He added an opening meeting is generally determined by a
group of individuals. An OMA violation will not happen again if
the committee passes the legislation.
3:58:09 PM
CECILIA DONELSON, representing self, Anchorage, Alaska,
testified in support of SB 15. She said the penalty for a
violation should be bigger than $1000. Government should be
open, and individuals should look their people in the eye,
people who are able to voice their opinions.
3:59:03 PM
DENISE ALLEN, representing self, Anchorage, Alaska, testified in
support of SB 15. She stated the MOA Assembly was in the wrong
when they closed their August 2020 meetings and allowed expert
testimony. She said a $1000 fine is not enough because [public
officials] will just vote themselves a raise to cover their
fine. SB 15 lets government officials know that the people
demand open government.
3:59:48 PM
CHAIR HUGHES closed public testimony on SB 15.
SENATOR GRAY-JACKSON thanked everyone for their testimony. She
clarified MOA salaries for public officials are determined by
the Salaries and Emoluments Commission. Individuals do not
determine their own salary.
She suggested committee members review comments in the fiscal
note in terms of not just the cost, and the comments from Ms.
Hebdon, Executive Director for the Alaska Public Offices
Commission (APOC). They are substantial.
CHAIR HUGHES asked her if she would like to ask Ms. Hebdon about
the fiscal note for SB 15.
SENATOR GRAY-JACKSON asked Ms. Hebdon to publicly make some of
the comments she made regarding the fiscal note because her
comments are "pretty substantial."
4:01:45 PM
HEATHER HEBDON, Executive Director, Alaska Public Offices
Commission, Department of Administration, Anchorage, Alaska,
testified in opposition to SB 15. She said APOC cannot support
SB 15 because the legislation will politicize the OMA more than
it needs to be. The bill will have a far-reaching impact on
assembly members, elected officials, and many volunteer board
and commission members who simply want to try to serve their
community.
She stated APOC also thinks the bill will result in a big
increase in workload for the agency. The bill is going to be a
big cost to APOC and that is why the commission submitted such a
significant fiscal note.
CHAIR HUGHES asked if APOC actually met and voted to oppose SB
15.
MS. HEBDON answered no; APOC has not taken a position on SB 15
and her remark was simply from a staff perspective.
CHAIR HUGHES pointed out she said that APOC could not support
the bill. She asked her to confirm that the APOC staff could not
support the bill.
MS. HEBDON answered yes. She apologized and clarified the APOC
staff does not support the bill and APOC itself has not taken a
position on the bill.
SENATOR MYERS commented he finds the comments interesting. He
noted the committee has occasionally heard that the reason
people do not run for office is because of the various pieces of
regulation that APOC is required to enforce. He stated he
wonders if the committee needs to strip away anything else.
4:04:16 PM
CHAIR HUGHES said she would like to respond to Anchorage
Assembly member Pete Peterson's testimony regarding a story
about a possible OMA violation in a restaurant. She said she
witnessed a similar situation in Palmer where a couple of city
council members attended one of her coffee chats and then one or
two other city council members stopped at the same restaurant.
CHAIR HUGHES remarked that part of Mr. Peterson's testimony does
seem to address a part of the OMA statutes that the committee
needs to address regarding people sitting at different tables in
a restaurant where the intention is not to violate the OMA.
CHAIR HUGHES noted the committee received the history of OMA,
and Ted Stevens initially had a penalty in his bill. She said
she does find it odd when everything else in Alaska statutes
have requirements and often there are consequences if the
requirements are not met; however, there is not one offered
here. She said she does find that odd, in fact, as the committee
was talking about APOC. If legislators do not do things right
there are penalties. For that reason, she does like the idea of
closing the loop on this.
She stated the intent is not to make it more difficult or
discourage people to serve. Based on Mr. Wooten's testimony,
those that do step up and serve work hard to meet the law
itself. However, at some point the committee might want to look
at the OMA to see if there are some very onerous requirements
the committee might be able to fix so someone would not have to
worry about being in a restaurant and being in violation because
someone walks in.
CHAIR HUGHES noted the bill sponsor said the following:
• Seventeen states have penalties for violation OMA laws
• Five states involve prison time
• Four states have possible office removal
• Four states have a misdemeanor for violating OMA laws
• Three states have fines or penalties
• Two states invalidate actions taken during any period of
time
4:07:42 PM
SENATOR MYERS moved to report the CS for SB 15, work order 32-
LS0176\G, from committee with individual recommendations and
attached fiscal note(s).
4:07:56 PM
CHAIR HUGHES announced there being no objection, CSSB 15(CRA)
moves from the Senate Community and Regional Affairs Standing
Committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 15 Anchorage Municipal Attorney's Office Written Testimony.pdf |
SCRA 3/9/2021 3:30:00 PM SJUD 3/17/2021 1:30:00 PM |
SB 15 |
| SB 15 Public Testimony- Support 3.9.21.pdf |
SCRA 3/9/2021 3:30:00 PM SJUD 3/17/2021 1:30:00 PM |
SB 15 |
| SB 15 Public Testimony- Opposition 3.9.21.pdf |
SCRA 3/9/2021 3:30:00 PM SJUD 3/17/2021 1:30:00 PM |
SB 15 |