Legislature(2007 - 2008)BELTZ 211
02/01/2007 09:00 AM Senate STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| SB19 | |
| SB20 | |
| SB45 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | SB 36 | TELECONFERENCED | |
| += | SB 45 | TELECONFERENCED | |
| += | SB 19 | TELECONFERENCED | |
| += | SB 20 | TELECONFERENCED | |
SB 20-LEGISLATIVE DISCLOSURES
9:47:09 AM
CHAIR MCGUIRE announced the consideration of SB 20.
JOHN FARLEIGH, Anchorage, said he is a fourth-generation
Alaskan, and he is speaking for himself. He said his testimony
addresses the ethics of any policy maker, legislative or
executive, and not just a specific bill. He said testifiers
mention their length of residency in Alaska, implying that an
opinion is more valuable for those who have been in Alaska
longer, but "I personally don't subscribe to that theory." But
he noted a recent television news interview of a young couple
who had just moved to Alaska and had used the term "back home,"
referring to where they came from. "For me, as a fourth-
generation Alaskan, this is back home; I have no other home."
MR. FARLEIGH said he is deeply embarrassed that the federal
government has to clean up Alaska's mess. He noted that there
have been obvious signs for years "about things that didn't seem
right, and yet nothing was done" until the FBI came to
investigate the legislature. "It's embarrassing to me as an
Alaskan that we're viewed as a corrupt state." He said it is
time to change that. Any policy maker should be held to a high
standard, and even the appearance of impropriety needs to be
dealt with. "We need to be able to trust our government," he
stated. He said that suggestions reported in the news sound
good, including not allowing legislative spouses to be
lobbyists, but it should be expanded to any immediate family
member because they are all possible conduits for bribes and
should be under scrutiny. His son noticed the warning on a movie
he watched last night that a person could spend five years in
jail for copying a movie. He said his son then asked why a
politician who breaks the law could be fined only $5,000. "If
our policy makers sell us out for their own benefit, there ought
to be significant penalties," including six-figure fines and
jail time for egregious violations, he opined.
9:51:26 AM
MR. FARLEIGH said the fines are not adequate to dissuade
policymakers from operating for their own benefit instead of the
benefit of all Alaskans.
CHAIR MCGUIRE said she appreciated the testimony.
STUART THOMPSON, Ketchikan and Wasilla, said he represents only
himself, and he appreciates the help from Senator French's
office. He noted that he had a 4.5-minute statement regarding
all ethics legislation, including SB 20. He told the committee
that lawmakers are not inherently evil, but they are humans who
need support to resist temptations that appeal to their
imperfections. He said the natural imperfections of people are
why government is even necessary. "How to govern the governors
is what defines the form of government; in other words, a form
of government is any design for minimizing corruption and poor
administration by those wielding government powers," he stated.
He said that makes the conceptual understandings of the
constitutions, and their philosophical foundations, the most
powerful resource for dealing with political corruption, "short
of the supreme being." He suggested that lawmakers use the
following wisdom of Socrates: inadequate comprehension of a
subject's key words prevents the affected person from
understanding the subject well enough to constructively apply
it. He said the dictionary provides five easy definitions for
"corrupt."
[The testimony was interrupted by a busy signal.]
9:54:10 AM
CHAIR MCGUIRE said a copy of Mr. Thompson's testimony is in the
committee packet, "so it will be included into the public record
indelibly."
9:54:29 AM
CHAIR MCGUIRE closed public testimony on SB 20. She offered
Amendment 1, labeled 25-LS0161\M.4, Wayne, as follows:
Page 1, lines 1 - 2:
Delete "of information about certain income
received as compensation for personal services"
Page 1, following line 5:
Insert a new bill section to read:
"* Section 1. AS 24.60 is amended by adding a new
section to article 2 to read:
Sec. 24.60.115. Disclosure required of a
legislator, legislative employee or public member of
the committee after final day of service. A person
serving as a legislator, legislative employee, or
public member of the committee shall, not later than
90 days after the person's final day of service, file
a disclosure of every matter that was subject to
disclosure under this chapter while the person was
serving."
Page 1, line 6:
Delete "Section 1"
Insert "Sec. 2"
Renumber the following bill sections accordingly.
Page 2, following line 21:
Insert a new bill section to read:
"* Sec. 3. The uncodified law of the State of
Alaska is amended by adding a new section to read:
APPLICABILITY. (a) Section 1 of this Act applies
to a person serving as a legislator who leaves service
on or after the effective date of this Act, and to a
person who is not a legislator but served as a
legislator between April 9, 2006, and the effective
date of this Act.
(b) A person who is not a legislator on the
effective date of this Act but who served as a
legislator between April 9, 2006, and the effective
date of this Act shall make the disclosure required by
AS 24.60.115, added by sec. 1 of this Act, within 90
days after the effective date of this Act."
Renumber the following bill section accordingly.
CHAIR MCGUIRE said Amendment 1 closes a loophole that appears to
be in statute. A lawmaker has to disclose any income over $1000,
and the amendment makes it clear that during the time after a
lawmaker is defeated or not running again, the reporting is
still required. She said she didn't know how it has been done in
the past, but this closes the gap and makes it clear that "you
can't spend your last year in office…doing what you want…as a
legislator and then not disclosing that income received." The
more controversial part of the amendment (taken from the
governor's bill) is the inclusion of legislative employees. The
amendment is not controversial on the whole but requiring
legislative employees to be subject to the same financial
disclosures as members might be, she noted.
9:57:14 AM
SENATOR GREEN said employees should not be in the bill. She
asked who "the public member of the committee," as listed in
line 9, refers to.
SENATOR FRENCH said he believes that refers to the five public
members of the Select Committee on Ethics.
9:57:50 AM
SENATOR STEVENS asked about the reporting schedule for
legislators.
CHAIR MCGUIRE said a legislator reports on March 15 and it
covers the preceding fiscal year, so members who are on the
fourth year of a four-year term, "they're no longer a lawmaker."
She said she thinks it's been unclear, as reported by the ethics
advisor, because some members report and some don't. It would
clarify that all members, even if they have left office, are
required to report.
SENATOR FRENCH said it also closes the gap in early January
prior to the swearing in of new members that has been outside
the disclosure requirements.
9:59:22 AM
SENATOR STEVENS said there is often a special session in
November, so why not leave the March 15 reporting date, rather
than 90 days after a person's final day? He said he understands
the testimony, but there is a real onus on a legislator to keep
all of these reporting dates in mind.
10:00:31 AM
CHAIR MCGUIRE said it doesn't cover 90 days after serving, it is
saying that, no later than 90 days after the final day of
service, the person must file. For example, a lawmaker that was
defeated this year would have been holding office right up to
January 16, and "what we want to do is say that the disclosure
is going to go all the way up until that day, so … on the fifth
or sixth of January, while you are still technically … a member
of the legislature, [you couldn't] get some kind of lucrative
contract and then use this loophole to fail to disclose it."
SENATOR STEVENS said the disclosure would still be on March 15.
SENATOR FRENCH said the last day of the session is not the
operative date; it is the last day that one is officially in
office. He said he is trying to get all the reporting
requirements lined up to one date.
10:02:22 AM
DAN WAYNE, Attorney, Legal Services Division, Legislative
Affairs Agency, said the select committee on legislative ethics
looked at whether legislators should report for that tail end of
their term. Up until recently there has been advice that they
need not, because statute states that a provision of the code
does not apply to former legislators, unless it specifically
states that it does. So, the code was interpreted as not
requiring them to report. The ethics committee came out with an
advisory opinion that the statute does require former
legislators and employees to report just like everybody else
with respect to anything that happened while they were serving.
But the misleading language still exists. An advisory opinion is
not the same thing as a statute.
MR. WAYNE said the amendment covers the 30 days before the end
of the regular session to the beginning of the next regular
session. So everything is reported on March 15. Some people were
not reporting thinking they didn't have to because they were
leaving office. This statute would say that all of those people,
in that time period between the two sessions, would have 90 days
from the time of leaving service to file that report, he said.
SENATOR BUNDE said it is 90 days after leaving service and not
related to the session. He noted an occasion of a legislator
coming to Juneau and being sworn in and getting an office
allowance and then resigning. That's not ethical, but people do
leave service at other times other than when their replacement
is sworn in. A person could resign midterm, he stated.
10:07:53 AM
SENATOR FRENCH asked who is a legislative employee.
MR. WAYNE said anyone who is on the state payroll in the
legislature and who is not a legislator.
MR. WAYNE said it includes pages, legislative staff, legislative
legal services, and everyone in the building he works in.
10:09:16 AM
CHAIR MCGUIRE said the amendment was designed to close the gap,
and the drafter took it right out of Governor Palin's bill.
SENATOR FRENCH moved Amendment 1 to Amendment 1 to strike
legislative employee from lines 8 and 10.
SENATOR BUNDE objected. He said a page will likely not become a
lobbyist, but a chief of staff may be of concern. He asked if
that person is already required to make a financial disclosure.
10:10:27 AM
CHAIR MCGUIRE said the committee doesn't want to go backward.
SENATOR FRENCH said this is not about being a lobbyist but an
annual financial disclosure of all investments. It may be worthy
of a separate discussion for the type of legislative employee
with tremendous influence, but this is about annual disclosures
for all legislative employees, "and I need to be convinced."
SENATOR BUNDE said it is not something that needs to be pursued.
CHAIR MCGUIRE said legislative employees are now required to
report close economic associations as to roommates or campaign
work. She asked if removing legislative employees from the
amendment will take away anything that is now on the books.
10:12:14 AM
MR. WAYNE said he needs to clear up the confusion. The
governor's bill and SB 20 without the amendment are only talking
about financial disclosures under AS 24.60.200. Legislative
employees are not currently required to make those, he added.
The loophole allowing people to avoid disclosures during the gap
between sessions was relevant to everyone including employees.
He noted the economic association and gift disclosures.
CHAIR MCGUIRE said so "this amendment is not changing the
statute with respect to what legislative employees are required
to disclose…what it's doing is saying that whatever those
disclosures are, as outlined in Title 24, they remain, but we're
going to close the gap for them as well."
10:13:48 AM
MR. WAYNE said he couldn't have said it any better.
DAVE JONES, Senior Assistant Attorney General, Civil Division,
Opinions, Appeals, and Ethics, Department of Law, said SB 64
addresses this issue in Section 3, page 3, lines 7-11. "In the
governor's bill we did not extend the disclosure requirements to
legislative employees, but merely to the legislative director."
MR. WAYNE said the way he read the governor's bill is it only
dealt with the financial disclosure requirements of AS
24.60.200, and he assumes that was why legislative employees
were not added, because they are not listed under the disclosure
requirement. But the governor is also addressing the loophole
and leaving legislative employees out. What he drafted would do
the same thing, but it would also close the loophole with
respect to reporting requirements under other sections by
legislative employees. "Since the legislative director is a
legislative employee…"
10:15:34 AM
SENATOR FRENCH withdrew his amendment to Amendment 1.
SENATOR STEVENS withdrew his objection. Hearing no further
objections, Amendment 1 carried.
CHAIR MCGUIRE asked about the spousal lobbying provision, "and I
think it probably is a good one; I just don't know how to draft
it on the fly." She asked for help from Mr. Wayne.
10:16:30 AM
MR. WAYNE said he couldn't come up with it "on the fly."
CHAIR MCGUIRE moved Amendment 2, labeled 25-LS0161\M.3, Wayne,
as follows:
Page 1, line 4, following "Act":
Insert "relating to the applicability of the
Legislative Ethics Act;"
Page 1, following line 5:
Insert a new bill section to read:
"* Section 1. AS 24.60.020(a) is amended to read:
(a) Except as otherwise provided in this
subsection, this chapter applies to a member of the
legislature, to a legislative employee, and to public
members of the committee. This chapter does not apply
to
(1) a former member of the legislature or
to a person formerly employed by the legislative
branch of government unless a [THE] provision of this
chapter specifically states that it applies;
(2) a person elected to the legislature who
at the time of election is not a member of the
legislature."
Page 1, line 6:
Delete "Section 1"
Insert "Sec. 2"
Renumber the following bill sections accordingly.
MR. WAYNE noted the wording problem in the applicability section
of the Legislative Ethics Act that caused some to think that
former legislators didn't have to report for the last half of
the year. Amendment 2 just changes "the provision" to "a
provision of this chapter," he stated. "So if you read this
together with the amendment that just passed about disclosures
required of former legislators, and so forth…the amendment that
just passed would be the provision of the chapter that
specifically states that the whole chapter is applicable to
everybody, regardless of whether they're serving or not."
10:18:03 AM
CHAIR MCGUIRE said it is a technical amendment.
SENATOR FRENCH withdrew his objection. Hearing no further
objections, Amendment 2 carried.
The committee took an at-ease from 10:18:15 to 10:18:43 AM.
10:18:47 AM
CHAIR MCGUIRE said there is no time to consider spousal
lobbying, and it can be worked on before the bill goes to the
Senate Finance Committee.
SENATOR FRENCH moved SB 20, as amended, with attached fiscal
notes from committee with individual recommendations.
SENATOR BUNDE objected in order to comment. He said the
legislature listened to an ethics expert and one of his points
was to try to "do this as a single bill and not a piecemeal. I
would just note that we appear to be ignoring his advice." He
removed his objection.
10:19:38 AM
SENATOR GREEN said the man also said an omnibus bill failed
under its own weight. "So there are a lot of ways to get to the
solution on this."
SENATOR FRENCH said he can't resist echoing that. "I think
today's proceeding really is a perfect example of why you need
several small bills moving through the system, because as you
add provisions, you weigh them down and it just makes it more
difficult to actually get the bill to the finish line."
10:20:15 AM
CHAIR MCGUIRE announced that, hearing no further objections,
CSSB 20(STA) passes out of committee with individual
recommendations and attached fiscal notes.
^#SB45
SB 45-PEACE OFFICER CONVICTED OF MURDER
CHAIR MCGUIRE announced SB 45 to be up for consideration. She
said previous discussions centered on the color of authority.
She noted Amendment 1 with Senator Olson's name attached. She
added her own and Senator French's name to it. Amendment 1,
labeled 25-LS0183\A.1, Luckhaupt, is as follows:
Page 2, line 9:
Delete "was on duty at the time of"
Insert "used the officer's authority as a peace
officer to facilitate"
CHAIR MCGUIRE said Amendment 1 gets at what she thinks was
agreed by the committee unanimously, which was to clarify that
the bill is not just for a peace officer committing murder, but
for one who uses the color of authority to do so. Hearing no
objection, Amendment 1 carried.
SENATOR BUNDE moved Amendment 2, as follows:
Page 2
Line 9 delete (5)
and add (5) "the court finds clear and convincing
evidence that the defendant as a peace officer
abused his or her duty and authority at the time
of the murder."
CHAIR MCGUIRE objected.
The committee took an at-ease from 10:22:05 AM to 10:23:12 AM.
SENATOR BUNDE explained his amendment. He said "this is a very
egregious case, and we certainly don't want to see anything like
this happen again." However, he wants the bill to "do no harm"
and not have "unintended consequences when a police officer has
to face that life-changing decision as to whether to use deadly
force." Commissioner Monegan described what goes through a
person's mind, he said. The amendment "would not reduce the
attempt to make sure that police officers don't abuse" their
color of authority. "But it also may reduce that additional
millisecond pause that a police officer might have to review in
his mind before he does make the decision to use deadly force
and inhibit him from doing his job as he ought to do it."
10:25:23 AM
CHAIR MCGUIRE suggested that Senator Bunde's amendment would
nullify the previous amendment, because it is another way of
saying it. "So your language would say, instead, the court finds
clear and convincing evidence that the defendant, as a peace
officer, abused his or her authority at the time of the murder.
So you're putting in a standard: clear and convincing." She
asked what the current standard is and if it is beyond a
reasonable doubt.
SENATOR FRENCH said that for a sentencing provision he believes
that one has to prove every element beyond a reasonable doubt.
CHAIR MCGUIRE surmised therefore that clear and convincing is a
lower standard. "It's unusual."
The committee took and at-ease from 10:26:35 AM to 10:27:33 AM.
CHAIR MCGUIRE said everyone is trying to get at the same goal.
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law, said Senator
Bunde's amendment is included in Amendment 1, which has been
adopted. She said she would prefer to just use the word
"authority" and not "duty and authority." She added that it is
important to include the term "facilitate" because Matt Owen
[the peace office who committed murder] used his authority to
get the victim in the car. At a certain point he wasn't on duty,
she noted. Current statute states that factual findings in Title
12 have to be proved by a preponderance of evidence, unless
certain things occur. "You could put it…under paragraph 3, and
you should probably also…add it in the sentencing procedure
statutes, which say: preponderance of the evidence unless…for
example, some aggravating factor we have to prove by clear and
convincing evidence. And it is true, that at this point, since
we are dealing with maximums, Blakely doesn't apply."
10:29:39 AM
CHAIR MCGUIRE said that preponderance of the evidence is a lower
standard than "clear and convincing," so if "clear and
convincing" were added, it would mean that the prosecution must
meet a higher threshold to show that a peace officer abused
authority. "Why would we want to do that?" she asked.
MS. CARPENETI said, "For the reasons expressed by Senator
Bunde." She said the state would need to prove it by a higher
standard. Preponderance is 51 percent, and clear and convincing
is a little higher.
SENATOR BUNDE said, "We do currently use it in the torture, and,
again, as someone has to make that life-changing decision of
whether to use deadly force or not…we don't add additional
burdens to the police officer while still punishing those…" He
then asked if Ms. Carpeneti was familiar with other officers
committing murder while on duty.
10:30:58 AM
MS. CARPENETI said this is first such case in 50 years of
statehood. She noted that these sentencing factors apply only
after someone is found guilty of murder in the first degree.
CHAIR MCGUIRE said in the case of Sonya Ivanoff there was a
separate trial on the torture, and the statute already read "by
clear and convincing evidence," so that was met. She then
stated that she was confusing two cases. "In this case, you got
99 years. The law wasn't on the books, so there was no standard
of proof. If there had been a law on the books, and it had been
difficult to get the mandatory 99, and the law had read 'clear
and convincing evidence', do you believe you would have been
able to meet that standard?"
MS. CARPENETI said she could ask the prosecutor. She said that
case had no mandatory maximum, "and we were able to prove by no
particular standard of proof that the court should impose the
maximum, for the reasons that are really inherent in the
purposes of the bill."
10:33:00 AM
WALT MONEGAN, Commissioner, said he supports Amendment 2 while
striking out the word "duty." That would resolve his concern of
creating another hesitation [in an officer's decision to use
deadly force]. He wanted a clear distinction from being a police
officer and being a predator. He noted that the officer deserved
the sentence he got, "I just don't want to cause that
hesitation."
CHAIR MCGUIRE said there is a way to get at the same idea.
Working with the adopted amendment, insert, on page 2, line 9,
(before the new language) "the court finds by clear and
convincing evidence that the defendant used the officer's
authority as a peace officer to facilitate". So Senator Bunde's
amendment would be to insert: the court finds by clear and
convincing evidence that the defendant.
10:35:14 AM
SENATOR BUNDE asked if he should withdraw Amendment 2 and offer
Amendment 2a.
CHAIR MCGUIRE said yes. Amendment 2a has been offered, she said,
as follows:
Page 2, line 9:
Insert: "the court finds by clear and convincing
evidence that the defendant"
SENATOR FRENCH said it would now read:
"the court finds by clear and convincing evidence that
the defendant is a peace officer who used the
officer's authority as a peace officer to facilitate…"
10:36:30 AM
CHAIR MCGUIRE said that is better. Hearing no objections,
Amendment 2a carried.
SENATOR STEVENS moved Amendment 3, labeled 25-LS0183\A.2,
Luckhaupt, as follows:
Page 1, following line 2:
Insert a new bill section to read:
"* Section 1. The uncodified law of the State of
Alaska is amended by adding a new section to read:
SHORT TITLE. This Act may be known as the Sonya
Ivanoff Act."
Page 1, line 3:
Delete "Section 1"
Insert "Sec. 2"
Renumber the following bill section accordingly.
Page 2, line 13:
Delete "Section 1"
Insert "Section 2"
Hearing no objection, Amendment 3 carried.
SENATOR GREEN asked about using the term "law" instead of "act".
SENATOR FRENCH said these specifically-named titles have
recently been taken out of the law. He said he always votes to
take them out of the law, and he will object for consistency.
10:38:10 AM
CHAIR MCGUIRE said it has already carried, so Senator French
will need to offer another amendment.
SENATOR FRENCH said he will not make an issue of it.
CHAIR MCGUIRE said there was a healthy debate in the Senate
Judiciary Standing Committee, and she suspects the issue will
come up again.
SENATOR GREEN moved SB 45, as amended, from committee with
individual recommendations and accompanying fiscal notes.
SENATOR BUNDE reiterated that it was an egregious case and not
common for this to happen, and he hopes it won't happen again.
He noted that the bill is a thoughtful reaction, and not a knee-
jerk reaction.
CHAIR MCGUIRE heard no further objections, so CSSB 45(STA) moved
out of committee.
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