Legislature(2021 - 2022)BUTROVICH 205
03/31/2021 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB65 | |
| Confirmation Hearing(s) | |
| 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 65 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 15-OPEN MEETINGS ACT; PENALTY
2:38:04 PM
CHAIR REINBOLD reconvened the meeting and announced
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. This is the third
hearing on this bill, which was previously held on 3/17/21 and
3/22/21.]
2:38:39 PM
MELODIE WILTERDINK, Staff, Senator Mia Costello, Juneau,
Alaska, responded to questions from the last hearing. She
referred to a map from the presentation on March 22, 2021. She
explained that in Colorado and Idaho, as opposed to Alaska,
actions taken in violation of open meeting requirements are
automatically voided. In Alaska, such actions are "voidable
to be determined by the court," after the determination that
those actions were, in fact, in violation of the law. This
means that actions taken in violation of the Open Meetings Act
in Alaska, as proven in court, may still stand despite the
illegality of the meeting in which they were taken.
MS. WILTERDINK said another question was whether a municipal
officer acting in a judicial or quasi-judicial capacity would
be subject to the Open Meetings Act. AS 44.62.310(d) specifies
that the Open Meetings Act does not apply to "a governmental
body performing a judicial or quasi-judicial function when
holding a meeting solely to make a decision in an adjudicatory
proceeding." This means that appointed municipal officers
acting as judicial officials would not be subject to the Open
Meetings Act or SB 15.
2:40:15 PM
SENATOR KIEHL moved to adopt Amendment 1, work order 32-
LS0176\G.3.
32-LS0176\G.3
Bannister
3/25/21
AMENDMENT 1
OFFERED IN THE SENATE
TO: CSSB 15(CRA)
Page 1, line 3, following "Commission":
Insert ", the Select Committee on Legislative Ethics,"
Page 1, following line 14:
Insert a new bill section to read:
"* Sec. 2. AS 24.60.037 is repealed and reenacted to read:
Sec. 24.60.037. Open meetings violations. If the
committee receives a complaint against a person for a
violation described in AS 44.62.310(i), the committee
shall give the respondent due notice and an opportunity to
be heard. If, at the conclusion of the hearing, the
committee determines that the respondent engaged in the
alleged violation, the committee shall assess a civil
penalty under AS 44.62.310(i). The determination of the
committee under this section may be appealed to the
superior court. The committee shall, by regulation,
establish procedures to implement this section, including
procedures for investigating and holding hearings on
complaints."
Renumber the following bill sections accordingly.
Page 2, following line 10:
Insert a new bill section to read:
"* Sec. 4. AS 44.62.310(h)(3) is amended to read:
(3) "public entity" means an entity of the
state or of a political subdivision of the state including
an agency, a board or commission, the University of
Alaska, a public authority or corporation, a body of the
legislative branch of state government, a municipality, a
school district, and other governmental units of the state
or a political subdivision of the state; "public entity"
[IT] does not include the court system [OR THE LEGISLATIVE
BRANCH OF STATE GOVERNMENT]."
Renumber the following bill sections accordingly.
Page 2, following line 11:
Insert a new paragraph to read:
"(4) "body of the legislative branch of
state government" means
(A) the senate;
(B) the house of representatives;
(C) the senate and the house of
representatives meeting in joint session;
(D) a committee of the legislature, other
than the Committee on Committees, but including a
standing committee, special committee, joint
committee, conference or free conference committee,
committee of the whole, and permanent interim
committee;
(E) a legislative commission, task force,
or other group established by statute or resolution;
or
(F) a caucus of members of one or more of
the bodies set out in (A) - (E) of this paragraph;"
Renumber the following paragraphs accordingly.
Page 2, lines 13 - 14:
Delete "has the meaning given in AS 39.50.200
but does not include a judicial officer"
Insert "means
(A) a person included in the definition of
"public official" in AS 39.50.200, except a judicial
officer; and
(B) a member of the legislature;"
Page 2, line 15:
Delete "a new subsection"
Insert "new subsections"
Page 2, line 17, following "body":
Insert ", except a community council established
by a municipality,"
Page 2, line 20, following "a":
Insert "(1)"
Page 2, line 22, following "AS 44.23.020(l)":
Insert ";
(2) member of a body of the legislative
branch of state government is alleged to have
violated this subsection, the Select Committee on
Legislative Ethics established under AS 24.60.130
shall enforce this subsection under AS 24.60.037.
(j) In the case of an alleged violation under
(i) of this section by a member of a body of the
legislative branch of state government, if there is a
conflict between (i) of this section and the Uniform
Rules of the legislature, the Uniform Rules govern"
Page 2, lines 22 - 23:
Delete "In this subsection, "governmental body"
does not include a community council established by a
municipality."
Page 2, line 26, following "Act,":
Insert "AS 24.60.037, as repealed and reenacted
by sec. 2 of this Act,"
Page 2, line 27:
Delete "sec. 2 of this Act, AS 44.62.310(h)(4)
and (5), added by sec. 3 of this Act,"
Insert "sec. 3 of this Act, AS 44.62.310(h)(3),
as amended by sec. 4 of this Act, AS 44.62.310(h)(4)
- (6), added by sec. 5"
Page 2, line 28:
Delete "AS 44.62.310(i), added by sec. 4"
Insert "AS 44.62.310(i) and (j), added by sec.
6"
CHAIR REINBOLD objected for discussion purposes.
SENATOR KIEHL explained that Amendment 1 would include the
legislature in governmental bodies that must adhere to the Open
Meetings Act. He characterized it as a fundamental issue of
fairness for the legislature to follow the same rules to
provide transparency. The enforcement would fall under the
Select Committee on Legislative Ethics. If this provision
passed, the legislature would need to amend the Uniform Rules
via a resolution.
2:42:15 PM
CHAIR REINBOLD asked what violations have been occurring that
Amendment 1 would address.
SENATOR KIEHL answered that it was not a question that someone
was doing something wrong. The legislature is not subject to
the same rules but would be under Amendment 1. He related his
understanding that Amendment 1 would include caucuses as public
meetings so those meetings would need to be public noticed.
2:42:54 PM
SENATOR HUGHES offered her belief that Amendment 1 represents a
major policy change since it will shift the discussion from the
Open Meetings Act to the Legislative Ethics Act. She suggested
that it would be better to address legislative ethics in a
separate bill. She pointed out that essentially any violation
of the Ethics Act by a legislator would result in a penalty.
She asked if her interpretation is correct.
SENATOR KIEHL answered no. He offered his view that it would
only result in a penalty if a legislator violated the Open
Meetings Act.
SENATOR HUGHES related her understanding that legislators were
under the Ethics Act. She asked if Amendment would put
legislators under both Acts.
SENATOR KIEHL answered yes. He recalled the Ethics Act relates
more to not accepting gifts and other conflicts of interest. He
offered his belief that this would subject legislators to the
same set of rules as the executive branch and municipal
governments need to follow.
2:44:56 PM
SENATOR HUGHES asked why the legislature was not included in
the Open Meetings Act in the enabling legislation. Instead, it
was left to the Legislative Ethics Act and the Uniform Rules.
SENATOR KIEHL replied that he did not prepare a complete
history. However, the question before the committee today is
whether the legislature must abide by the same rules that are
appropriately imposed on other elements of government. The
public has a right to view the deliberations of policy matters.
SENATOR HUGHES stated that the legislature must notice public
meetings. Some provisions in the Ethics Act meet the public's
need for transparency. Without a full presentation on the
current requirements for the legislature, it would be difficult
to support Amendment 1. She voiced that she does not have
anything to hide but the changes provided by Amendment 1 would
be significant.
2:46:27 PM
SENATOR MYERS said he understood the rationale of Amendment 1.
He asked if the legislature would repeal current statutes that
apply to legislators if the legislature was subject to the Open
Meetings Act.
SENATOR KIEHL answered no. Amendment 1 does not repeal the
Uniform Rules, he said. He acknowledged that the Uniform Rules
would need some adjustments if Amendment 1 were to pass. Until
then, the Uniform Rules would govern, he said.
2:47:43 PM
CHAIR REINBOLD asked if his intent is to place the executive
branch and municipal officials and the legislature under the
Uniform Rules, the Legislative Ethics Act and the Open Meetings
Act.
SENATOR KIEHL answered that he did not believe the Uniform
Rules would provide the executive branch or municipal
government with much guidance. He offered his belief that the
executive branch ethics is more restrictive than the
Legislative Ethics Act. Amendment 1 would conform the
legislature to the open meetings principles but does not apply
to the Public Records Act, which did not seem germane.
CHAIR REINBOLD offered her view that everyone should operate
under the same rules, including the Uniform Rules, the
Legislative Ethics Act and the Open Meetings Act. She asked for
the sponsor's intent.
2:49:16 PM
MS. WILTERDINK said it was not the sponsor's intent to exclude
the legislature from the penalty provision in SB 15. She
related her understanding that to update the Uniform Rules
would require a resolution. She deferred to Legislative Legal
Services to respond.
2:50:19 PM
TERRY BANNISTER, Attorney, Legislative Legal Services,
Legislative Affairs Agency, Juneau, Alaska, said it is true the
legislature would need to pass a resolution. She said the
Uniform Rules would govern even if the bill was adopted.
2:51:18 PM
SENATOR SHOWER agreed that Amendment 1 would be a significant
change. He asked how the mechanics would work.
SENATOR KIEHL agreed that Amendment would institute significant
changes. For example, only three members could discuss an issue
without being in an open setting. He said members could meet
for coffee or dinner but members could not discuss business. He
stated that members can go into executive session based on a
list of acceptable reasons, including litigation and contracts.
He said the sponsor did not object to Amendment 1.
2:53:38 PM
SENATOR HUGHES stated she did not hear Ms. Wilterdink mention
that the sponsor supported Amendment 1. She also wondered
whether the committee had enough information about the overall
implications of Amendment 1 or if it passes the single-subject
rule.
MS. WILTERDINK said the sponsor would like clarity on certain
parts of Amendment 1 related to caucuses and whether Uniform
Rules would be applied first or if the Open Meetings Act would
apply.
2:56:22 PM
CHAIR REINBOLD suggested that Senator Kiehl work with the
sponsor.
CHAIR REINBOLD tabled Amendment 1.
2:56:50 PM
CHAIR REINBOLD opened public testimony on SB 15.
2:57:24 PM
MIKE COREY, representing self, Anchorage, Alaska, stated that
he was glad the committee was considering SB 15. He disclosed
that he is counsel for the Alaskans for Open Meetings, but he
is speaking on behalf of himself today. He suggested the
committee consider changing "voidable" to "void." He explained
that if the Open Meetings Act is violated, it should be "void"
and the legislature should not rely on the courts to consider
the rationale for open meetings. Many of the criteria in [AS
44.62].310 incorporates [AS 44.62].312, which relate to policy
statements. Five of the factors essentially say that if the
activities during the violation are significant or challenging
to walk back, those are the very activities the public should
be allowed to attend. The policy considerations in [AS
44.62].312 are the very reasons for enacting the Open Meetings
Act. It doesn't make sense to have each judge revisit the
topic.
MR. COREY offered his view that if two or more people are in
session, the public should be allowed to attend in person. He
offered his view that E-attendance was not meant to provide a
means to exclude the public but rather was intended to be for
the publics' convenience. He acknowledged that during COVID-19
if meetings are held entirely by Zoom that E-attendance might
be sufficient.
2:59:52 PM
LOUIS IMBRIANI, representing self, Anchorage, Alaska, spoke in
support of adding a penalty to the Open Meetings Act in SB 15.
It will give citizens another way to hold elected officials
accountable for their actions. Currently, holding elected
officials accountable can be a long, arduous and expensive
process.
3:00:42 PM
FRANK MCQUEARY, President, Alaskans for Open Meetings,
Anchorage, Alaska, spoke in support of tightening up the
existing statutes for the Open Meetings Act. He expressed
concern that there is not a penalty for violating the Open
Meetings Act. He referred to [AS 44.62.310] (f). He stated that
moments ago Mr. Corey alluded to the "voidable" language in the
Open Meetings Act that automatically defers any dispute to the
court. He offered his view that this language provides a
framework for the court to find excuses for the Open Meetings
Act violations. He expressed concern that without erecting
barriers for bad behavior, more bad behavior will occur. SB 9
closely mirrors a bill then-Representative Ted Stevens
introduced in 1966. He said this bill is simple, clear, and
shifts a little power to the public. Since litigation is costly
for private individuals, but officials can use publicly paid
attorneys, these positive changes to the Open Meetings Act
could help the public.
3:03:48 PM
One public testifier, Theresa Obermeyer, Anchorage, Alaska was
not able to testify due to audio difficulties.
3:04:39 PM
CHAIR REINBOLD closed public testimony on SB 15.
[SB 15 was held in committee.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| CSSB65 Ver. I.PDF |
HHSS 4/27/2021 3:00:00 PM HHSS 4/29/2021 3:00:00 PM HHSS 5/4/2021 3:00:00 PM SJUD 3/31/2021 1:30:00 PM |
SB 65 |
| CSSB 15 Version G.pdf |
SJUD 3/31/2021 1:30:00 PM |
SB 15 |
| CSSB15 Sectional 3.12.21.pdf |
SJUD 3/31/2021 1:30:00 PM |
SB 15 |
| SB15 Sponsor Statement 2.24.21.pdf |
SJUD 3/31/2021 1:30:00 PM |
SB 15 |
| SB15 PowerPoint 2.25.21.pdf |
SJUD 3/31/2021 1:30:00 PM |
SB 15 |
| CSSB 15 Answers to Judiciary Member Qs.pdf |
SJUD 3/31/2021 1:30:00 PM |
SB 15 |
| CSSB 15 States with Open Meetings Penalties Table 3.12.21.pdf |
SJUD 3/31/2021 1:30:00 PM |
SB 15 |
| CSSB 15 Violation Examples 3.12.21.pdf |
SJUD 3/31/2021 1:30:00 PM |
SB 15 |
| SB15 amendment G.3.pdf |
SJUD 3/31/2021 1:30:00 PM |
SB 15 |
| CSSB 15 Answers to Judiciary Member Qs.pdf |
SJUD 3/31/2021 1:30:00 PM |
SB 15 |
| SB65 Public Testimony.pdf |
HHSS 4/27/2021 3:00:00 PM HHSS 4/29/2021 3:00:00 PM SJUD 3/31/2021 1:30:00 PM |
SB 65 |
| Public Testimony Samantha Cherot.pdf |
SJUD 3/31/2021 1:30:00 PM |
Public Testimony Samantha Cherot |