Legislature(2021 - 2022)BUTROVICH 205
04/12/2021 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB82 | |
| SB9 | |
| SB15 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 15 | TELECONFERENCED | |
| += | SB 82 | TELECONFERENCED | |
| += | SB 9 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
SB 15-OPEN MEETINGS ACT; PENALTY
2:51:16 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."
[CS FOR SENATE BILL NO. 15(CRA) was before the committee. Public
testimony was opened and closed on 3/31/21.]
2:51:46 PM
CHAIR REINBOLD stated her intention to hold the bill in
committee.
2:52:20 PM
MELODIE WILTERDINK, Staff, Senator Costello, Alaska State
Legislature, Juneau, Alaska, stated that SB 15 intends to
strengthen the Open Meetings Act by adding civil penalties for
those officials who hold meetings that are not open to the
public.
2:53:32 PM
SENATOR HUGHES moved to adopt Amendment [2, labeled as Amendment
3, work order 32-LS0176\G.6]:
32-LS0176\G.6
Bannister
4/1/21
AMENDMENT [2]
OFFERED IN THE SENATE BY SENATOR HUGHES
TO: CSSB 15(CRA)
Page 1, line 2, following "by":
Insert "certain elected"
Page 1, line 3:
Delete "and the attorney general"
Page 1, line 8:
Delete ", unless the person is a member of the
commission"
Page 2, lines 1 - 14:
Delete all material.
Renumber the following bill sections accordingly.
Page 2, lines 16 - 17:
Delete "who is an elected or appointed public
official and"
Insert "that is made up of elected public
officials"
Page 2, lines 19 - 23:
Delete ", except that if a member of the Alaska
Public Offices Commission is alleged to have violated
this subsection, the attorney general shall enforce
this subsection under AS 44.23.020(l). In this
subsection, "governmental body" does not include a
community council established by a municipality"
Insert ". In this subsection,
(1) "elected public official" means a
person who has been elected to a governmental body at
a regular or special election held by a municipality,
school district, or regional educational attendance
area;
(2) "knowingly" has the meaning given in
AS 11.81.900(a)"
Page 2, lines 26 - 27:
Delete "AS 44.23.020(l), added by sec. 2 of this
Act, AS 44.62.310(h)(4) and (5), added by sec. 3 of
this Act,"
Page 2, line 28:
Delete "sec. 4"
Insert "sec. 2"
CHAIR REINBOLD objected for discussion purposes.
SENATOR HUGHES explained that Amendment [2] would clarify that
SB 15 applies to elected officials but not to members of boards
and commissions or non-elected task force or subcommittee
members.
2:54:17 PM
SENATOR MYERS related his understanding that it would not apply
to the executive branch.
SENATOR HUGHES said that is correct. She expressed concern about
the size of the fiscal note and the number of people impacted
since people may be unwilling to volunteer to serve. She stated
that boards and commissions typically meet much less often than
municipal government such as community councils and assemblies.
Instead, the bill narrowly focuses on the elected bodies that
pass ordinances for local municipalities.
SENATOR KIEHL asked if a planning commission determining
Alaskans' rights to develop private property would be exempt and
not be subject to penalties if those decisions were made behind
closed doors. Further, the bill would not apply to licensing
boards that determine people's ability to acquire a professional
license.
SENATOR HUGHES answered yes. She said planning commissions and
licensing boards typically do not have a history of complaints.
SENATOR KIEHL recalled issues with planning commissions. He
asked whether this would apply to the Alaska Oil and Gas
Association (AOGA) or the Regulatory Commission of Alaska even
though their issues pertain to major businesses.
SENATOR HUGHES responded that SB 15 relates to elected
officials. The intent is to limit the focus on the areas with
the most complaints.
2:56:46 PM
SENATOR HUGHES added that if SB 15 works well, a bill could be
introduced to expand the penalty provisions to include other
officials. However, that could affect thousands of individuals
so the fiscal impact would be much greater.
CHAIR REINBOLD said Senator Kiehl has a valid point. She
expressed concern that violations could occur on boards and
commissions. She offered to work with Senator Kiehl in the
future to address those concerns.
SENATOR SHOWER asked for the sponsor's perspective on the intent
of the bill and the possibility of expanding the penalty
provisions at some future date to address Senator Kiehl's
concerns.
MS. WILTERDINK responded that the sponsor wanted to include
elected officials. The sponsor did not want to discourage people
from volunteering to serve on board and commissions because they
may be subject at hefty fines. She acknowledged that Senator
Kiehl raised important considerations.
2:59:08 PM
SENATOR SHOWER asked if anyone had any ideas how to bridge the
concerns.
CHAIR REINBOLD suggested the language could read "may" instead
of "shall." However, she did not believe that change would
address the fiscal impact.
CHAIR REINBOLD removed her objection.
2:59:53 PM
SENATOR KIEHL acknowledged that the state and municipalities ask
much from those who serve as volunteers on boards and
commissions. This raises a constitutional issue regarding equal
protection. He characterized the Open Meetings Act as good
policy. Alaska should be able to view governmental debate and
actions taken. He said he does not want to hold up the bill. He
said he would not object to Amendment [2].
There being no further objection, Amendment [2] was adopted.
3:00:45 PM
SENATOR HUGHES moved to adopt Amendment [3] [labeled as
Amendment 2, work order 32-LS-0176\G.5]:
32-LS0176\G.5
Bannister
4/1/21
AMENDMENT [3]
OFFERED IN THE SENATE BY SENATOR HUGHES
TO: CSSB 15(CRA)
Page 1, line 1:
Delete "civil penalty"
Insert "warning and civil and criminal penalties"
Page 1, line 10, following "heard":
Insert ", except that, if the alleged violation
would be the person's third violation, the commission
shall refer the matter to the attorney general for
criminal proceedings against the respondent under
AS 44.62.310(i)"
Page 1, line 12, following "shall":
Insert ", if the violation is the respondent's
first violation, give the respondent a warning under
AS 44.62.310(i) or, if the violation is the
respondent's second violation,"
Page 2, line 4, following "heard":
Insert ", except that, if the alleged violation
would be the member's third violation, the attorney
general shall institute criminal proceedings against
the respondent under AS 44.62.310(i)"
Page 2, line 6, following "shall":
Insert ", if the violation is the respondent's
first violation, give the respondent a warning under
AS 44.62.310(i) or, if the violation is the
respondent's second violation,"
Page 2, line 18:
Delete "liable to the state for a civil penalty
not to exceed $1,000"
Insert "subject to a warning if the violation is
the member's first violation, liable to the state for
a civil penalty not to exceed $1,000 if the violation
is the member's second violation, or guilty of a class
B misdemeanor if the violation is the member's third
violation. The Alaska Public Offices Commission shall
advise a member in the warning that a second violation
is subject to a civil penalty not to exceed $1,000 and
a third violation is a class B misdemeanor"
CHAIR REINBOLD objected for discussion purposes.
3:00:53 PM
SENATOR HUGHES explained that Amendment [3] would add three
tiers to the penalty provisions for Open Meetings Act
violations. The first offense would result in a warning, the
second violation would impose a $1,000 fine, and the third
violation would impose a class B misdemeanor.
3:01:15 PM
SENATOR MYERS asked for the penalties for a class B misdemeanor.
SENATOR HUGHES answered that a class B misdemeanor establishes
penalties of up to 90 days in jail and $2,000 in fines.
CHAIR REINBOLD removed her objection.
3:01:41 PM
SENATOR KIEHL objected. He expressed concern that establishing
criminal penalties for inherently civil matters is excessive. He
expressed concern about local taxpayers bearing the brunt of
criminal charges filed against city employees. The legislature's
fiscal notes project costs to the state but the legislature does
not see the projected impacts on small municipalities and
cities. He stated that larger cities and municipalities have
full-time staff to represent their employees, but smaller ones
pay hourly attorney fees.
3:03:09 PM
SENATOR SHOWER said he agrees that this will result in
additional costs to taxpayers. However, the total cost is not
limited to financial costs but the cost to citizens for repeated
violations by elected officials that impact ethical governance.
He emphasized the importance of having effective enforcement
policies in place.
CHAIR REINBOLD offered her view that the public was treated
poorly by the Municipality of Anchorage during the pandemic. She
offered her support for Amendment [3].
3:04:56 PM
MS. WILTERDINK said the sponsor supports Amendment [3].
3:05:08 PM
SENATOR HUGHES spoke in support of the tiered approach to
violations. She said she believes a class B misdemeanor is
appropriate for the third offense.
SENATOR KIEHL maintained his objection.
3:05:41 PM
A roll call vote was taken. Senators Myers, Hughes, Shower, and
Reinbold voted in favor of Amendment 2 and Senator Kiehl voted
against it. Therefore, Amendment 2 was adopted by a 4:1 vote.
3:06:30 PM
SENATOR KIEHL restated his motion to adopt Amendment 1, [work
order 32-LS 0176\G.3 which was set aside on 3/31/21].
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.
3:06:51 PM
SENATOR KIEHL explained that Amendment 1 would make the
legislature subject to the Open Meetings Act. It would also
require a concurrent resolution to change the Uniform Rules. He
explained that his staff prepared a history of the instances
when the legislature exempted itself from what is required of
officials in the Open Meetings Act. He summarized the history by
stating that a number of legislators found it difficult to hold
all of their deliberations in the full public view and on the
record. However, it is good public policy and is what the law
requires of the executive branch and SB 15 would require of
municipalities.
3:08:13 PM
SENATOR MYERS related his understanding that the genesis of SB
15 was due to the Municipality of Anchorage closing its meetings
to the public. He asked if SB 15 passed, if it would force the
legislature to open the Capitol to the public, which has been
closed due to the pandemic.
SENATOR KIEHL answered that the Open Meetings Act provides for
public participation by teleconference. Amendment 1 would
require legislators to hold their discussions on the record.
CHAIR REINBOLD express concern that some people might not have
internet access. She stated that she would like the Capitol
reopened to the public.
3:09:13 PM
SENATOR MYERS said he understands the sponsor's concern. He
suggested that if the sponsor would like all activities of
legislators open, the committee should consider moving the
Capitol.
3:10:18 PM
CHAIR REINBOLD pointed out that this committee is the only
committee of referral for SB 15. She expressed concern that many
legislators cannot go home to their families, so a dinner out
could violate the Open Meetings Act. Legislators often reside in
Juneau for months. She expressed concern about the unintended
consequences of Amendment 1. She suggested the bill should have
more than one committee of referral to address the issues.
3:11:27 PM
SENATOR SHOWER asked if the legislature is the only body that
Amendment 1 would apply to that must meet for three to four
months.
3:12:13 PM
SENATOR MYERS pointed out that the judiciary is exempt from the
Open Meetings Act.
3:12:38 PM
SENATOR SHOWER acknowledged that the committee should consider
that legislators are in Juneau during the legislative session.
Many legislators go out to dinner in small groups and engage in
other activities.
3:13:37 PM
SENATOR HUGHES agreed that transparency is important. However,
the legislature operates outside the Open Meetings Act, under
the Uniform Rules and the Legislative Ethics Act. Legislators
also receive extensive training on ethics, she said. Currently,
the legislature struggles to meet the 90-day and the 120-day
session limit. Amendment 1 could drastically increase committee
hours when the legislature is intended to be a citizen
legislature. While she said she understands the desire for
transparency, she cannot support Amendment 1.
3:15:35 PM
SENATOR KIEHL emphasized there could be some misconceptions
about the Open Meetings Act. He related his personal experience
serving on the Juneau Assembly. He said the Open Meetings Act
did not prohibit him from attending dinners, social engagements
and ribbon cuttings with other assembly members. Still, he could
not count votes or discuss municipal issues at these events. He
characterized the Uniform Rules and Legislative Ethics Act
combined as "fairly weak tea" compared to the Open Meetings Act
provisions. People and the press will observe legislators
wherever they meet, whether they are in is a small city or a
large one. He agreed that the legislature must complete its work
timely and that working under the Open Meetings Act would be
less efficient. However, it will provide the additional
transparency and accountability that SB 15 requires of other
elected officials.
3:18:17 PM
SENATOR SHOWER offered his view that the legislature operates
differently and Amendment 1 would make significant changes. He
suggested that the rules the legislature operates under would be
better considered in a separate bill.
3:19:35 PM
CHAIR REINBOLD expressed her frustration that the legislature
operates under the Uniform Rules and Legislative Ethics Act so
adding the Open Meetings Act adds an unnecessary layer. She said
she tends to lean towards voting no on Amendment 1 but she could
support it if the Capitol was moved.
CHAIR REINBOLD maintained her objection.
3:20:57 PM
A roll call vote was taken. Senator Kiehl voted in favor of
Amendment 1 and Senators Myers, Hughes, Shower, and Chair
Reinbold voted against it. Therefore, Amendment 1 failed by a
1:4 vote.
CHAIR REINBOLD held SB 15 in committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 82 Presentation.4.12.21.pdf |
SJUD 4/12/2021 1:30:00 PM |
SB 82 |
| SB 82 Sponsor Statement version A.pdf |
SJUD 4/12/2021 1:30:00 PM |
SB 82 |
| SB 82 version A.PDF |
SJUD 4/12/2021 1:30:00 PM |
SB 82 |
| SB 82 Sectional Analysis version A.pdf |
SJUD 4/12/2021 1:30:00 PM |
SB 82 |
| SB 82 Law Fiscal Note.pdf |
SJUD 4/12/2021 1:30:00 PM |
SB 82 |
| SB15 Amdnement G.5 Hughes.pdf |
SJUD 4/12/2021 1:30:00 PM |
SB 15 |
| SB15 Amendment G.6 Hughes.pdf |
SJUD 4/12/2021 1:30:00 PM |
SB 15 |
| SB15 amendment G.3 Kiehl.pdf |
SJUD 4/12/2021 1:30:00 PM |
SB 15 |