Legislature(2021 - 2022)BUTROVICH 205
03/22/2021 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing | |
| 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
1:49:16 PM
CHAIR REINBOLD reconvened the meeting and announced the
consideration of SB 15, 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."
[CSSB 15(CRA)was before the committee. The bill was previously
heard on 3/17/21.]
1:49:27 PM
MELODIE WILTERDINK, Staff, Senator Mia Costello, Alaska State
Legislature, Juneau, Alaska, began a PowerPoint on SB 15. On
February 23, 1965, the late US Senator Stevens, who was then a
state representative, introduced House Bill 170, "An Act
requiring that the meetings of agencies of the state and its
subdivisions be open to the public with certain exceptions."
This bill is known today as the Open Meetings Act, she said.
Prior to passage of House Bill 170, the legislature removed the
penalty provision that established a fine of up to $1,000 from
the bill.
MS. WILTERDINK said SB 15 would amend the Open Meetings Act by
adding a civil penalty of up to $1,000 for any violations. CSSB
15(CRA) identifies the Alaska Public Offices Commission as the
entity to receive complaints and assess any penalties, she said.
1:52:04 PM
MS. WILTERDINK reviewed states with penalties for violating open
meeting requirements shown on slide 3. In 2002, a Florida jury
convicted a county commissioner for discussing redistricting
with a county election supervisor while another commissioner
listened via speakerphone. The judge sentenced the commissioner
to 60 days in jail, fined him $500 and required him to pay
$3,600 in court fees.
1:52:53 PM
MS. WILTERDINK reviewed slide 4, highlighting several residents'
comments that illustrated their frustration when the Anchorage
Assembly did not allow the public to participate in a meeting
due to COVID-19.
1:53:19 PM
SENATOR MYERS recalled that the bill then-Representative Stevens
introduced initially included language to establish a $1,000
fine but it was ultimately not adopted. He noted that the fine
in SB 15 was not adjusted for inflation but if so, the fine
would likely be $5,000 to $7,000.
MS. WILTERDINK agreed it would be higher.
SENATOR MYERS asked why the bill did not adjust the $1,000 fine.
MS. WILTERDINK answered that the sponsor thought it made the
most sense to initially set the civil penalty at $1,000 fine.
She said that then Representative Steven's bill initially
established the penalty as a misdemeanor punishable by up to one
year in jail and a fine up to $1,000. She explained that
establishing a civil penalty meant that it would not go to court
unless APOC appealed the ruling.
1:54:46 PM
CHAIR REINBOLD asked whether SB 15 would establish a misdemeanor
penalty and if the previous committee discussed it.
MS. WILTERDINK answered no, it does not establish a misdemeanor
penalty and she did not believe the Community and Regional
Affairs Committee discussed it.
1:55:14 PM
SENATOR HUGHES commented that the Community and Regional Affairs
Committee deferred the question of whether the penalty was
appropriate for the Senate Judiciary Committee to discuss since
it was the next committee of referral.
1:56:27 PM
MS. WILTERDINK presented the sectional analysis for the
committee substitute (CS) SB 15 (CRA), Version G. She
paraphrased the following:
Sec. 1 AS 15.13 Page 1, Lines 5-14
Is amended by adding a new section AS 15.13.395
outlining the duties of the Alaska Public Offices
Commission with regards to hearing and enforcing
complaints of violations of section 4 of this bill AS
44.62.310(i). This section also excludes members of
the commission from being subject to enforcement of AS
44.62.310(i) under this section.
Sec. 2 AS 44.23.020 Page 2, Lines 1-10 Adds a new
section outlining the duties of the Alaska Attorney
General with regards to hearing and enforcing
complaints of violations of section 4 of this bill AS
44.62.310(i) directed towards members of the Alaska
Public Offices Commission.
1:57:21 PM
Sec. 3 AS 44.62.310(h) Page 2 Lines 11-14 Is amended
to define the terms "knowingly" and "public official."
Under this section, "knowingly" has the meaning given
in AS 11.81.900(a)(2). "Public official" has the
meaning given in AS 39.50.200(a)(9) but is changed to
exclude "judicial officers" with regards to this bill.
Sec. 4 44.62.310 Page 2, Lines 15-23 Is amended to
add a civil penalty of up to $1,000 for elected or
appointed members of a governmental body who knowingly
attend a meeting that violates the Open Meetings Act.
This section is changed to outline that the Alaska
Public Offices Commission will enforce this penalty in
all cases except when a member of the commission is
accused of a violation. This section also explicitly
excludes community councils from the types of
governmental bodies subject to this section.
1:58:31 PM
Sec. 5 Page 2, Lines 24-29 Provides that the
penalties added by this bill apply to offenses
occurring on or after the effective date of this Act
and is amended to conform to the addition of new
sections of the bill.
1:58:49 PM
SENATOR KIEHL referring to the map on slide 3, asked why Alaska
was not listed among the states where actions of a body could be
invalidated. He related his understanding that the Open Meetings
Act allows for invalidations.
MS. WILTERDINK answered that the map does not show states that
targeted specific individuals for violations. Alaska's Open
Meetings Act specifically says that governmental bodies can be
targeted. It would void any actions of that body but it does not
apply to actions taken by a specific individual.
1:59:33 PM
SENATOR HUGHES asked if actions in Idaho and Colorado, as shown
on the slide, could be taken against an individual person but
not a body.
MS. WILTERDINK replied that was her understanding. She offered
to verify this and report back to the committee.
2:00:07 PM
SENATOR KIEHL referred to the definition of a public official in
Section 3. He asked how the exclusion for judicial officers
would apply if a municipality used a hearing officer to conduct
administrative appeals.
MS. WILTERDINK explained that the sponsor used that definition
since it includes everyone the Open Meetings Act covers. It was
not based on what occurs at hearings at the municipal level.
SENATOR KIEHL asked whether an appointed official acting as a
hearing officer would be considered a judicial officer since
they conduct administrative appeals.
MS. WILTERDINK answered that she was unsure. She offered to
research this and report back to the committee.
2:01:30 PM
CHAIR REINBOLD asked why the legislature and the judiciary were
excluded from the bill.
MS. WILTERDINK answered that the Open Meetings Act excludes the
legislature since legislative acts are covered under the Uniform
Rules. She explained that changing that process would require
using a different process. She said the Open Meetings Act
currently exempts the judiciary.
2:02:39 PM
CHAIR REINBOLD said she believes the Anchorage Assembly violated
the Open Meetings Act this summer when it banned the public due
to COVID-19 concerns. She asked whether she would be subject to
a fine if she had testified before the Anchorage Assembly.
MS. WILTERDINK answered no; that was not the intent of the bill.
Elected officials who were conducting the meeting would be
subject to fines.
CHAIR REINBOLD suggested this language is confusing and it
should be amended.
2:04:33 PM
SENATOR HUGHES recalled that community councils were exempted.
She asked whether this bill would apply to those serving on
planning commissions, advisory boards and road service area
boards. She asked whether the bill applies only to elected
officials.
MS. WILTERDINK suggested that reading the definition for public
official may help. She read AS 39.50.200 (a) (9):
"public official" means
(A) a judicial officer
(B), the governor or the lieutenant governor
(C) a person hired or appointed in a department in a
department in the executive branch as
(i) the head or deputy head of the department
(ii) the director or deputy director of a
division
(iii) a special assistant to the head of the
department
(iv) a person serving as the legislative liaison
for the department
(D) an assistant to the governor or the lieutenant
governor
(E) the chair or a member of a state commission or
board
(F) state investment officers and the state
comptroller in the Department of Revenue
(G) the chief procurement officer appointed under AS
36.30.010; (H) the executive director of the Alaska
Workforce Investment Board; and
(I) each appointed or elected municipal officer
(J) the members of the board of trustees, the
executive director, and the investment officers of the
Alaska Permanent Fund Corporation;"
SENATOR HUGHES pointed out that this definition includes
appointed or elected municipal officers. She suggested the
committee should explore whether the sponsor intended this to
apply to local planning commission members, advisory board, and
road service area board members.
MS. WILTERDINK related her understanding that the sponsor
intended SB 15 to apply to those that the Open Meetings Act
currently affects.
CHAIR REINBOLD related her understanding that this bill would
primarily apply to the executive branch.
MS. WILTERDINK responded that it was meant to apply to everyone
subject to the Open Meetings Act, which would also apply to
board and commission members and the majority of the executive
branch. She said it would exclude community council members and
those serving in similar capacities.
CHAIR REINBOLD asked how this bill would affect the Anchorage
Assembly.
MS. WILTERDINK answered that this would directly impact the
Anchorage Assembly since its members are elected municipal
officials.
2:08:01 PM
SENATOR KIEHL said this bill appears to affect the Utility
Advisory Board and Planning Commission members. He asked if
there was a reason that school site councils were not exempted.
MS. WILTERDINK offered to research this and report back to the
committee. She related that Legislative Legal was not certain if
community councils were impacted, so the bill specifically
excluded them.
2:09:14 PM
SENATOR KIEHL asked whether the sponsor considered limiting the
open meeting requirements specifically to municipal officials
who must file a financial disclosure.
MS. WILTERDINK offered to take up this with the sponsor.
2:09:47 PM
SENATOR KIEHL related his understanding that the bill would
apply to those who knowingly attend a governmental body meeting
that violates the Open Meetings Act. He described an assembly
meeting he attended. An assembly member became aware that the
outside doors had been locked for 30 minutes. He was uncertain
when the assembly member knew the doors were locked, but the
Chair stopped the meeting and took the appropriate steps once it
was brought to his attention. He asked if the assembly member
was guilty of violating the Open Meetings Act because he knew
about the locked doors.
MS. WILTERDINK said she did not think that it would be a
violation given the definition of "knowingly" and since the
meeting was stopped as soon as the Chair was informed that the
meeting was not public.
SENATOR KIEHL clarified that at some point, the member knew the
doors were locked but it is unclear how long the person knew
that the meeting was not public.
MS. WILTERDINK offered her view that the meeting was stopped
when the violation became obvious.
SENATOR KIEHL expressed concern that unless the assembly member
immediately "stepped away," the assembly member would be in
violation.
2:12:14 PM
SENATOR KIEHL acknowledged some Alaskans' frustrations at an
Anchorage Assembly meeting this summer. He expressed concern
that government lawyers would need to defend members who were
conducting official business if the bill were to pass.
MS. WILTERDINK described the process. The Alaska Public Offices
Commission (APOC) would take up complaints. APOC would determine
if the complaint will go forward. If numerous people complained
about one meeting, APOC would likely combine the complaints.
Each side would present their case, APOC staff would make a
recommendation, a hearing would be conducted and a penalty would
be assessed or not assessed. Decisions could be appealed, she
said. She envisioned that the costs would be levied against the
state.
2:14:21 PM
SENATOR KIEHL offered his view that a municipal official or
nonprofit would be entitled to counsel. He said absent gross
malfeasance, the city attorney would need to defend the assembly
members at a hearing. He recalled that tens of thousands of
dollars could be spent to defend those acting in their official
capacity. He offered his view that those costs would be passed
on to the taxpayers.
MS. WILTERDINK answered that the intent of SB 15 is to target
the individuals who violate the Open Meetings Act. Many states
reduce the number of frivolous complaints by requiring the
losing party to pay any legal fees. However, she did not think
the costs would be passed on to taxpayers.
2:15:59 PM
SENATOR KIEHL offered to do some additional research.
2:16:15 PM
SENATOR HUGHES asked to hear from Legislative Legal Services on
this issue. This bill does not specify that the individual would
be responsible. She suggested that this section might need an
amendment to ensure that happens. She said she would support
requiring the losing parties to pay court fees since elected
officials such as assembly members could be targeted by
frivolous complaints. She suggested that the sponsor would need
to clarify whether the sponsor intended to have individuals bear
the costs.
CHAIR REINBOLD concurred with Senator Hughes.
2:18:18 PM
SENATOR HUGHES recalled that Senator Myers previously raised the
issue of inflation adjustments to the fines, which seemed
reasonable. She asked if the 1965 committee held any discussions
when removing the fines from the enabling legislation. She
offered her view that the Open Meetings Act does not have any
consequences unless the actions taken by the body become invalid
if violations occur.
MS. WILTERDINK responded that the Legislative Reference Library
does not have any notes from the 1965 committee action that
could provide insight.
[SB 15 was held in committee.]
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