Legislature(2003 - 2004)
03/12/2003 01:31 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 45-LB&A CRIMES AND COOPERATION
SENATOR LYDA GREEN introduced SB 45 saying it's helpful that the
Legislative Budget and Audit Committee (LB&A) has been able to
obtain and compile information, present it to the Legislature
and make recommendations. In the past, there has been
reluctance to provide full information and some employees have
been told not to provide the information. It is a very
difficult step for an employee to disobey the employer even
though they are required by law to participate with LB&A
Currently there are no penalties for withholding information,
but SB 45 sets in statute first and second degree penalties for
withholding information. This also includes persons serving on
committees or in appointed positions who may not be considered
employees but have public affiliation and are required to
provide full and truthful information. This legislation points
out the importance of the requirement to provide information.
This bill adds two sections to Section 1. AS 11.56.
· Sec. 11.56.870 Hindering the Legislative Budget and Audit
Committee in the first degree.
· Sec. 11.56.880 Hindering the Legislative Budget and Audit
Committee in the second degree.
SENATOR GREEN explained page 2, line 11, amends Sec. 2 AS
24.20.201, and would provide the process when a person has
requested privilege and the procedure to follow once the claim
is made that the information is privileged. A superior court
judge would determine whether the claim is complete and
truthful.
SENATOR FRENCH said Senator Green's experience must have
convinced her this proposed law has been broken in the past. He
asked her to elaborate, without disclosing names.
SENATOR GREEN said she did not want to compromise the person
that shared the information with her because it was an awkward
moment in that individual's life. All government employees are
supposed to be truthful and ethical and some in professional
positions are professionally prohibited from bringing
information forward and to do so would be an additional
violation. She said she was convinced the information she
received was true and complete.
SENATOR FRENCH asked why this was confined to the LB&A. He
questioned why this wouldn't it be just as egregious for a state
employee to block or withhold information from someone on the
Finance Committee or the Judiciary Committee.
SENATOR GREEN replied she didn't know if that was covered under
another statute. She feels the committee process is quite
compelling and it is a requirement to come forward with the
truth. The committee chair with the concurrence of the
presiding officer has the ability to swear in witnesses.
Perhaps that is the mechanism one would use if they felt that
the information was not forthright and complete. She couldn't
speak to expanding the scope of the bill.
SENATOR FRENCH commented that once he started thinking about
that he questioned why this wouldn't apply more broadly. Being a
former prosecutor, he went to the statute books and found five
statutes that would cover different aspects of this
noncompliance or information-hiding problem.
Sec. 11.56.850. Official misconduct. [(a) A public servant
commits the crime of official misconduct if, with intent to
obtain a benefit or to injure or deprive another person of a
benefit, the public servant
(1) performs an act relating to the public servant's office
but constituting an unauthorized exercise of the public
servant's official functions, knowing that that act is
unauthorized; or
(2) knowingly refrains from performing a duty which is
imposed upon the public servant by law or is clearly inherent in
the nature of the public servant's office.]
Sec. 11.56.510. Interference with official proceedings. [(a) A
person commits the crime of interference with official
proceedings if the person
(1) uses force on anyone, damaged the property of anyone,
or threatens anyone with intent
(A) improperly influence a witness or otherwise influence
the testimony of a witness;]
Sec. 11.56.540 Tampering with a witness in the first degree.
[(a) A person commits the crime of tampering with a witness in
the first degree if the person knowingly induces or attempts to
induce a witness to
(1) testify falsely, offer misleading testimony, or
unlawfully withhold testimony in an official proceeding; or
(2) be absent from a judicial proceeding to which the
witness has been summoned.]
Sec. 11.56.610. Tampering with physical evidence. [(a) A person
commits the crime of tampering with physical evidence if the
person
(1) destroys, mutilates, alters, suppresses, conceals, or
removes physical evidence with intent to impair its verity or
availability in an official proceeding or a criminal
investigation;
(2) makes, presents, or uses physical evidence, knowing it
to be false, with intent to mislead a juror who is engaged in an
official proceeding or a public servant who is engaged in an
official proceeding or a criminal investigation;
(3) prevents the production of physical evidence in an
official proceeding or a criminal investigation by the use of
force, threat, or deception against anyone; or
(4) does any act described by (1), (2), or (3) of this
subsection with intent to prevent the institution of an official
proceeding.]
SENATOR FRENCH said this is if someone actually took a piece of
paper and hid it so some other employee could not find it.
Sec. 11.56.820. Tampering with public records in the second
degree. [(a) A person commits the crime of tampering with public
records in the second degree if the person
(1) knowingly makes a false entry in or falsely alters a
public record;
(2) knowingly destroys, mutilates, suppresses, conceals,
removes, or otherwise impairs the verity, legibility, or
availability of a public record, knowing that the person lacks
the authority to do so; or
(3) certifies a public record setting out a claim against a
government agency, of the property of a government agency, with
reckless disregard of whether the claim is lawful, or that
payment of the claim is not authorized in the budget of the
government agency.]
SENATOR FRENCH said, in looking at the issue as a former
prosecutor, it seems like there is someway to punish people who
are actively subverting the public process with the statutes
currently on the books. He said he would share that and see if
there is something he is missing, something special about the
LB&A that really needs its own statute.
SENATOR GREEN replied the purpose of LB&A is unique in state
government. It is the agency the Legislature relies on for
oversight, review, specific questions, a general direction, a
suspicion that someone might have, information to be gathered on
the functioning of an agency or department or a particular
function being carried out. Employees are required to cooperate
with Legislative Budget and Audit, but there is no penalty if
the employee does not participate or if an employer tells an
employee they are not to participate and give full information.
This legislation provides a penalty and that is loss of
employment.
CHAIR SEEKINS noted the legislation said hindering and hindering
has a broader scope than hiding, destroying or defrauding. He
asked if this is where someone is deliberately setting out to
hinder an investigation by LB&A.
SENATOR GREEN said that was correct.
SENATOR OGAN said a class C felony is the penalty for hindering
in the first degree. He referred to Sec. 11.56.610. Tampering
with physical evidence. He said there was a shocking case in
the valley [Mat-Su] where one person was murdered and
dismembered and a number of teenagers spread the body around the
valley. He thought the teenagers were charged with tampering
with evidence and that was a serious crime. He pointed out this
legislation has the same degree of felony. He was concerned the
ramifications of being a convicted felon for hindering the LB&A
don't rise to the same level as hiding body parts of somebody
that was hacked up with a chainsaw. He asked if a person with a
class C felony would lose the right to own a weapon, vote and
things like that. He had concerns the penalty was a little
tough.
SENATOR GREEN said she thought the Legislature had an
expectation when information is required about finances or how
programs are being run. When auditors go into an office with
the sole purpose of finding information the least they can
expect is being given full, complete and true information.
Perhaps this crime does not rise to the occasion of other very
heinous crimes but other white-collar crimes are also class C
felonies.
SENATOR OGAN paraphrased Sec. 11.56.850. Official misconduct. A
person commits the crime of official misconduct if, with intent
to obtain a benefit or to injure or deprive another person or a
public servant does a couple of things knowing the act is
unauthorized or does something that refrains from performing a
public duty and that is a class A misdemeanor. He said he was
used to being lied to by people. That is part of what this is
about and it should not be condoned. He thought the LB&A has
the power to subpoena and if a person lied under a subpoena that
might raise it to the level of a felony.
SENATOR GREEN informed the committee there was someone on line
to answer questions.
1:45 pm
MR. STEVE BRANCHFLOWER, Director, Office of Victims' Rights,
told committee members he was a prosecutor in Anchorage for
almost 30 years. Over the years and specifically during the
last three years as the Director of the Alaska Medicaid Fraud
Control Unit, there have been times when he strongly suspected
or had positive proof that individuals within state government,
in the executive branch, instructed subordinate employees to
either disregard specific requests made by the LB&A or to not
cooperate. One instance was pretty egregious. He checked the
statutes to see if there was a remedy and was disappointed to
find it was not commensurate to the offense. He said one
question that was asked was what are the present tools to deal
with the situation.
MR. BRANCHFLOWER stressed this issue does exist, not only for
the LB&A but also for the entire Legislature. It is a problem
that is endemic to the system. There are a couple of statutes
that deal with it, but in his view they are inadequate. He gave
the example of AS 24.25.040, which deals with subpoenas issued
by the Legislature. The enforcement mechanisms identified are
limited to the arrest of the person by the sergeant-at-arms to
take the person before the Legislature. Criminally prosecuting
the person for disobeying the subpoena is in Sec. 24.25.080 and
requires the cooperation and initiative of the executive branch.
He knew of no means within the legislative body to enforce the
subpoenas.
MR. BRANCHFLOWER said he looked at the statutes Senator French
mentioned and:
While I can tell you that while they are pretty sharp
tools, that is pretty efficient tools, they don't -
none of them really addresses the situation that I
experienced that is where behind-the-scenes conduct
was engaged in by supervisors to discourage
cooperation.
MR. BRANCHFLOWER said if you look at official misconduct in Sec.
11.56.850, the problem is that the defendant has to act with
intent to obtain a benefit. That could be difficult to show
because often times the motivation of superiors within state
government is difficult to ascertain. If it were something
physical such as money or a gift, it might be easier. Often
times low-level supervisors are following instructions or
enforcing the will or pleasure of their supervisor thereby
creating layers that must be worked through.
Sec. 11.56.610 Tampering with physical evidence deals with
physical evidence. This criminalizes a defendant who tampers
with some physical evidence like a bloody garment or maybe a
check. What SB 45 is intended to reach are people who engage in
conduct and bring to bear forces that they ought not to bring to
bear in terms of persuasion and intimidation.
He thought Senator French also mentioned Sec. 11.56.540.
Tampering with a witness in the first degree. The problem he
saw was this requires the dependency of a judicial proceeding,
which is defined somewhere in the statutes. Absent that, there
would not be a condition precedent to charging someone with
tampering with a witness; the person is not a witness so there
is no judicial proceeding.
MR. BRANCHFLOWER reiterated the kind of conduct SB 45 is
intended to reach is behind the scenes. An employee is put in a
precarious situation if they are told not to cooperate or not to
provide information. Should the employee cooperate, he or she
may lose their job and although they may have some protection in
terms of the Whistleblower Act, it complicates their life
significantly. They would be marked and their future would be in
doubt.
He said there were some other statutes as well that were
mentioned that he didn't catch, but in each instance the present
tools are inadequate.
With regard to the difference between witness tampering and SB
45, he gave the example where a person commits first degree if
he commits the second degree and certain other circumstances are
present such as the presence of a dangerous instrument or
weapon. The same is true in burglary in the second degree
versus breaking into a warehouse. Certain things are present
for an increase in severity from a burglary second to a burglary
first.
MR. BRANCHFLOWER said hindering a witness is the same. The
lesser crime, which is the class A misdemeanor, is called
hindering the LB&A Committee in the second degree. SB 45 lists
the conduct.
The reason the first degree is a C felony is because
it is aimed not at the conduct but at the kind of
person who engages in the conduct. The only
difference between second degree and first degree
appears on line 7 of page 1. If the perpetrator, if
the defendant is a public servant, that term is
defined in 11.81.900, then that person is culpable of
a C felony.
If you look at 11.81.900... sub-section 53 defines the
term public servant very, very broadly and it includes
those people who would be in a sort of a supervisory
position.... The legislative intent between making
the distinction between a misdemeanor and a C felony
would be to... to a greater degree people who are
supervisors who discourage their underlings or their
people they supervise from cooperating. That is not
to say that tampering with physical evidence should
not also be a C felony but tampering with physical
evidence deals with physical evidence, this deals with
conduct on the part of supervisors.
MR. BRANCHFLOWER said SB 45 fixes another problem. When LB&A
requests information from the executive branch they are
occasionally met with claims of privilege. There is no
mechanism present in the law to arbitrate those claims of
privilege and the information is never passed on. SB 45 sets
out the procedure.
MR. BRANCHFLOWER summarized saying SB 45 puts some teeth into
the language of Sec. 24.22.01 that gives LB&A the right to ask
for full cooperation and would give an enforcement mechanism in
the form of a new criminal statute.
CHAIR SEEKINS asked if he knew of any other statutes that might
cover hindering an investigation.
MR. BRANCHFLOWER said when he had the experience where it was
very clear a supervisor had instructed an employee not to
cooperate and not to provide information, he looked at state and
federal statutes and contemplated going to the U.S. Attorney's
Office and providing information. At that time, he became
convinced of the need for SB 45.
CHAIR SEEKINS said a public employee is defined in 39.52.960
(20). "Public employee means a permanent, probationary,
seasonal, temporary, provisional, or non-permanent employee of
an agency, whether in the classified, partially exempt or exempt
service." He asked if that was a big enough lasso to catch
everybody.
MR. BRANCHFLOWER said it is, it is the lowest common
denominator. The next level up would be public servant. That
is the reason for the use of the words "public servant in the
first degree" and "public employee in the second."
SENATOR OGAN asked what is associated with a class C felony.
MR. BRANCHFLOWER said a class C felony is the least serious
felony. It is a non-presumptive felony with the possible range
of zero jail time to a maximum of five years. There is also
provision for a fine, which is frequently imposed. Absent some
serious conditions, a person convicted of a class C felony who
is a first offender with no criminal history will receive a
probationary term as opposed to jail time. If serious
conditions were present, it would probably result in a higher
conviction than a C felony.
He inserted a provision in SB 45 that states that if a public
employee is convicted, they immediately forfeit their office or
position. If someone is convicted, they ought to immediately
have nothing else to do with state government independent of
what else may happen to them in terms of the criminal
prosecution.
SENATOR OGAN asked what the ramifications are for voting and
owning weapons for class C felons.
2:00 pm
MR. BRANCHFLOWER assumed they were talking about first offenders
because otherwise they probably would not be state employees.
He also assumed most state employees don't have any prior felony
convictions although there may be some exceptions. First
offenders get a probationary sentence with a suspended
imposition of sentence. There may be some conditions attached
such as attending an alcohol rehabilitation program or some sort
of a rehabilitative program, abide by conditions of probation
and make restitution. At the end of their probationary term the
conviction is set aside and the person is restored to his status
prior to the conviction.
If the person was required to fill out an application that asks
if they stand convicted of any crime the truthful answer is no
because the conviction has been set aside. A lot of times,
depending upon what the circumstances are, the application is
worded in a way to take into account those people who have had a
suspended imposition of sentence. The wording is a little
different in order to capture the true content of what has
happened. For example, in the state trooper application not
only does it ask if they had any prior convictions it will also
ask if they have ever been convicted of a crime and had the
conviction set aside. The short answer is convictions for a C
felony not only result in mostly probationary time but almost
always, unless there is some physical injury or something
unusual, result in suspended imposition of sentence.
SENATOR OGAN said, "That was a very skilled answer by an
obviously skilled attorney. You didn't answer my question
though."
MR. BRANCHFLOWER said, "OK I'll try my best. As far as the
weapons?"
SENATOR OGAN asked whether a person convicted of a C felony
could lose their right to vote or own weapons.
MR. BRANCHFLOWER said a person loses their right to vote during
the penancy of the probationary term. Assuming they receive a
suspended imposition of sentence then they have a right to vote.
People who have had convictions and the convictions were set
aside have served on juries, grand juries and trial juries.
With regard to possessing weapons, there is a provision in the
misconduct involving weapons section that says people who have
had a suspended imposition of sentence may possess weapons if
their conviction has been set aside. He added that may be
different under federal law.
SENATOR OGAN said the other answer to that is yes they could
lose their weapons if the conviction is not set aside.
MR. BRANCHFLOWER said if the conviction is not set aside, under
state law they may not possess concealable weapons.
SENATOR OGAN said it took awhile but he finally got his answer.
SENATOR THERRIAULT said they talked about who gets caught in the
lasso and he wanted to clarify who can throw the rope. He asked
if only the professional audit staff of the committee could
trigger this.
MR. BRANCHFLOWER predicted that if a request is made and if
conduct that falls within the statute occurs, then it would be a
crime just like any other crime. The incident would be
investigated by whatever appropriate police agency happens to be
involved. The Alaska State Troopers or the municipal police
would do their report and submit it to the district attorneys
office in that particular district. The legislative branch
could not bring a criminal action because that is a function of
the executive branch, but reporting the crime would start on the
legislative side.
SENATOR THERRIAULT said he was wondering about the trigger. He
has been Chairman of LB&A for the past two years and had a
committee staff person and four people working in the office.
He asked if it would be triggered by anybody in his office
making a request or would it have to be a request that was
actually approved by the committee.
MR. BRANCHFLOWER said anyone from the office who was operating
within the normal course of business and in the scope his or her
work might make a request. For example, Senator Therriault made
a request to the Department of Health and Social Services asking
for an audit report regarding Medicaid members and some effort
was made to suppress disclosure of the information. If the
committee had reason to believe there was improper conduct going
on and there was no assertion of a privilege then the
information would go up the chain of command to Senator
Therriault. As head of the committee, he would have the option
of reporting the incident to some police agency for
investigation at which time an investigation would take place as
in any other criminal investigation.
SENATOR THERRIAULT pointed out he had staff that worked for him
at his direction and were paid out of the LB&A budget. If he
told his staff to request information from the Department of
Health and Social Services and his staff reported the department
would not give them the information he questioned whether that
was enough to trigger the process.
MR. BRANCHFLOWER replied somebody would have to make a telephone
call and find out what the circumstances were regarding the
refusal.
SENATOR THERRIAULT questioned whether any person that worked for
him as chairman had the right to ask for and receive information
and if the information was not given did the refusal serve as
the trigger. Could any member of the committee request
information or did the request have to be approved by the full
committee as it is for audits? When the full LB&A committee
approves an audit, the professional and confidentiality-bound
staff requests information to undergo their work. He asked if
it takes that kind of committee action to trigger this whole
thing or could it simply be a request by either his staff or
another committee member's staff.
MR. BRANCHFLOWER answered he did not think the statute addressed
that question. He said he did not know if that question was
answered anywhere.
SENATOR THERRIAULT asked how he proposed that question should be
answered.
MR. BRANCHFLOWER pointed out that Sec. 24.20.201 speaks in terms
of the Legislative Budget and Audit Committee having the power
as opposed to the divisions within the committee. He analogized
that it has the power to require information from all state
officials.
SENATOR THERRIAULT said that is kind of fussy. When the agency
had the ability to "just shine us on" that was one thing, but if
there is going to be some kind of a sanction it needs to be
clearly understood who has the power to trigger the whole
mechanism.
MR. BRANCHFLOWER said,
It may be that the kind of conduct I'm trying to reach
happens in such a way that it will become known to
members, to someone who is not on the committee and
probably that is the way it will come about.
It will come about on the part of some employee who has received
the request for information. It might be someone who works
within the Medicaid Program or someone who works for Department
of Health and Social Services that is the agency that has been
asked to provide the information so LB&A may not even know about
it. This statute would permit the employee to bring that
conduct to the attention of the proper authorities who would
then investigate it.
2:12 pm
SENATOR THERRIAULT said they probably do need this sanction, but
he wanted to be careful about when it gets triggered and who can
trigger it.
MR. BRANCHFLOWER said he understood and added that the kind of
conduct he is concerned about does not occur openly. It occurs
behind closed doors between supervisor and the person supervised
and those are very difficult circumstances to disclose to
anyone. There is no crime scene and it is a very difficult
crime to detect.
SENATOR GREEN asked Senator Therriault and Mr. Branchflower if
this was not really referring to the LB&A Committee as much as
when a LB&A auditor is proceeding to do the actual audit. The
audit has been authorized and is out of the committee's control
until they receive the completed audit. She said she assumed
the auditor is primarily the person who would be doing the
investigation and not the committee. She asked if that was
correct.
SENATOR THERRIAULT answered it is generally the auditor. There
is an extra level of protection for sensitive information if it
is given to the audit staff.
SENATOR GREEN asked if Senator Therriault saw a need to change
the language to be more specific to the auditor.
SENATOR THERRIAULT said he would like to question Ms. Davidson.
He was thinking if they actually have sanctions they may want to
clean this language up to clarify exactly when somebody may have
to respond or suffer a sanction.
SENATOR GREEN agreed.
MR. BRANCHFLOWER advised that when he drafted the legislation
what he had in mind was a situation in which an audit was in
progress. Some information was requested by LB&A and a specific
order issued to an employee not to provide the requested
information, not to answer telephone calls or emails and not to
cooperate.
At-ease was taken from 2:15 to 2:16.
CHAIR SEEKINS noted they were discussing a Committee Substitute
(CS) for SB 45.
SENATOR OGAN moved the committee adopt the work draft 23-
LS0205\H version as the CSSB 45 (JUD). The motion carried with
no objection.
SENATOR FRENCH pointed out Mr. Branchflower thought about going
to the U.S. Attorney regarding someone thwarting a Medicaid
investigation he was conducting. Senator French asked if some
U.S. code was parallel to this legislation.
MR. BRANCHFLOWER answered there are a number of obstruction of
justice statutes such as the statute that made it a crime to
obstruct a health care investigation. There are some tools
there, but he had trouble with obstruction of justice because
the term obstruct is difficult to define or quantify. Instead
of coming up with an obstruction statute, he came up with
specific conduct that shows up on line 2, page 2. Orders,
discourages, threatens, restrains, coerces, forces, or prevents
all of which amount to obstruction. He thought it would be
helpful and add constitutional muster if there was specific
conduct. There are some federal crimes but there are problems
with them.
SENATOR FRENCH thought he and Mr. Branchflower saw the
sentencing under the C felony the same way. With a first time
white-collar offender in front of a superior court judge the
chances are that person is going to get a very short suspended
imposition of sentence. If he or she obeys the law for the next
12 to 18 months the conviction is set aside and that person goes
on their way. He said it strikes him the chief sanction that is
going to happen to a person that breaks this law is they are
going to lose their state employment and their benefits and
salary.
MR. BRANCHFLOWER said that is correct. Usually a supervisor
would have some period of longevity with the state and have
quite a bit to lose. Once it becomes known among supervisors
that there are some teeth to the statute and they risk losing a
career with the state, they might think twice before following
instructions from their supervisor or engaging in the kind of
conduct the statute disallows. Part of the reason for even
having the statute is the deterrent.
SENATOR FRENCH referred to Sec. 11.56.540 - Tampering with a
witness in the first degree. He said his read of the statute is
that a person commits the crime of tampering with a witness in
the first degree if the person knowingly induces or attempts to
induce a witness to (1) testify falsely, offer misleading
testimony, or unlawfully withhold testimony, "which is kind of
what it sounds like you encountered there," in an official
proceeding. He said the operative word there is "official
proceeding not judicial but official." He pointed out when he
read the definition of official proceeding in 11.81.900 (40)
"official proceeding" means a proceeding heard before a
legislative, judicial, administrative, or other governmental
body. He said it strikes him that a person who tells another
employee to not hand over evidence or not go testify or to
testify to X when the situation is actually Y that person could
be charged.
MR. BRANCHFLOWER said there would have to be dependency or some
sort of a legislative proceeding under the definition of
official proceeding. By the time it gets to the stage where
there is a hearing it gets less likely that someone would hinder
the work of the Legislative Budget and Audit Committee. The
kind of conduct he had in mind is an event that occurs outside
the scope of an official proceeding before the Legislature.
CHAIR SEEKINS said, as he understood it, an audit would not
really be an official proceeding and hindering that audit might
be nothing more than saying do not cooperate with the auditors.
MR. BRANCHFLOWER agreed and added that was the circumstance he
encountered.
CHAIR SEEKINS said putting a burden on the underling is in
conflict with this statute. He read page 1, line 11. A public
employee who is convicted under this section immediately
forfeits the employee's office or position. In his business
they would also say, "ineligible for rehire as a public
employee."
MR. BRANCHFLOWER said he thought that was a good observation.
Conviction for hindering a Legislative Budget and Audit
Committee in the first degree is not the kind of thing that
looks good on a resume. He added it would not hurt to add the
finishing language to make sure the person does not come back.
CHAIR SEEKINS said sometimes strange things happen in the
political world. He asked Senator Green if that was a good
idea.
SENATOR GREEN replied it was a fine idea.
SENATOR OGAN asked what actions Mr. Branchflower brought before
LB&A when he became aware of the incident he referenced. He
asked whether Mr. Branchflower asked LB&A to subpoena them or to
hold a hearing and bring the people forward. He asked if an
auditor could not do that under those circumstances.
MR. BRANCHFLOWER replied not without the risk of being fired
especially if employees serve at the pleasure of the
commissioner. There are a number of employees who serve at the
pleasure of the commissioner and this is precisely what Senator
Green was talking about. People with families and financial
obligations are more apt to agree to follow specific
instructions from their boss and not take any action -
particularly if they serve at-will.
SENATOR OGAN said there was a former LB&A Chairman present. He
said it seems to him if an LB&A Chairman felt there were shell
games going on he could get the employee or the employee's
supervisor before the committee and ask them to raise their
right hand then ask them about the issue. He said there seems
to be some other modalities in law perhaps under a different
chapter. It seems there was another modality there, it just
wasn't done, and now they want to make it a felony. He added he
didn't have a problem with people losing their jobs and becoming
ineligible for rehire, but wasn't there some way the chairman
could have called these people forward?
2:25 pm
MR. BRANCHFLOWER said the problem, especially for at-will
employees, is once the instruction is disregarded there is the
very real potential of ending that employee's career regardless
of how the audit turns out. It places the employee in a
position of having to make very difficult choices and more often
than not the employee is going to error on the side of
preserving their job. That means the information sought is
never going to come to light. He said he knows this goes on and
it would never get to the stage where the chairman of some
committee would say they knew about this intent of hindering or
obstructing the flow of information and the chairman would take
the step of issuing a subpoena and someone would be brought in
and take the oath. By the time it gets to that stage the cat is
out of the bag and that at-will employee is very much at risk.
SENATOR OGAN said so the answer is yes, there is that modality.
He said Mr. Branchflower is making his point.
I'm asking a question, a specific question, your kind
of giving me good answers, but they're not quite round
about it. I mean I don't think that there is any
culpability to not answer my question and in an audit
it's the same kind of situation. There are lots of
gray area about questions and answers.... You have to
have a culpable mental state to be convicted of a
felony - that you deliberately had a certain type of
behavior. And you know it gets kind of subjective in
this realm of politics we're in and what's the right
answer. You know I don't always like the answers that
people give me and sometimes I think they're the wrong
answer because I didn't like them.... These are some
major ramifications here. And the committee chairmen
have a lot of power and the power of subpoena and the
power to put people under oath and there are serious
violations, not as serious as this, but there's
violations for ignoring that. So anyway I guess that's
the statement we're going to question.
SENATOR THERRIAULT said it seems like there are two different
scenarios. He agreed it is a problem with the at-will employee
if the supervisor tells them to not cooperate because they may
be the only two people that are privy to that decision. If the
Chairman of LB&A starts calling the supervisor to ask him to
take an oath the supervisor is going to know who leaked the
information so that employee is put at risk. The way to get
around that is offer that employee whistleblower protection.
There also is the scenario where the supervisor and the employee
are working in conjunction and they decide to thwart the LB&A.
Maybe the only way to get to the bottom would be to call people
forward and tell them to raise their hand and swear. So there
are two different possibilities and it might be sensible to make
all of that applicable when there has been a request through the
operation of an official audit being done.
SENATOR THERRIAULT added when a formalized audit is taking place
you might want to have these sanctions to keep public employees
from thwarting the will of the committee, but perhaps this
section shouldn't apply for informal requests.
The extra twist on that is the legislation says at the specific
direction of the committee and the committee does take action to
approve audit requests. A number of audits are triggered by
statute not by action of the committee. The statutes just say
the Legislative Budget and Audit Committee shall once every two
years or once a year perform X audit. This mechanism should
also apply to that.
SENATOR GREEN asked if sunset audits should apply as well.
SENATOR THERRIAULT said sunset audits, financial audits and some
of the things that are just triggered by the operation.
2:31 pm
MS. PAT DAVIDSON, Legislative Auditor, Division of Legislative
Audit, explained she did not have any prepared testimony, but
was available for questions. She was interested in listening to
all the testimony because they are the people that have to
conduct the audit. She said it is weak to have a statute that
requires, but provides no enforcement. There are a lot of
statutory avenues that might be pursued to encourage and put
teeth in the encouragement.
At ease was called from 1:33 to 1:38.
CHAIR SEEKINS informed Ms. Davidson the committee would like to
hear any comments she may have because their intent was to roll
some of the ideas they have talked about to Senator Green and
come back with a CS for further discussion. Any input she could
give at this point would be greatly appreciated.
MS. DAVIDSON said she was unaware of the specific issue Mr.
Branchflower was addressing. As the legislative auditor for the
last five years, she knew of just one occasion where she had
conversations with the Chairman of the Budget and Audit
Committee regarding the potential need to issue subpoenas for
non-cooperation. There is a gamut of non-cooperation, but she
has very well trained staff and they are aware when that is
going on. Having the LB&A Committee power to subpoena has been
an important element and backstop in getting cooperation.
MS. DAVIDSON said another point was the discussion about
differentiating the actions of a supervisor from those of an
employee when the employee wants to cooperate. The attorneys in
Legislative Legal and Research Services probably have a keener
understanding of the implications. They want to encourage
everybody to cooperate and specifically identify the
whistleblower's statute. Cooperation with the LB&A Committee or
the Division of Legislative Audit is specifically covered as
opposed to them wondering or even asking the division whether it
is covered might be helpful on the positive side. In terms of
trying to look at that supervisor who is taking that overt
action of trying to hinder there are a gamut of remedies.
With regard to the discussion about felonies, she asked how
likely it might be to have troopers come as opposed to getting
the Department of Law to move on an executive branch ethics
complaint. She said those are the things she really did not
know but did expect the Judiciary Committee would like to hear
more about.
SENATOR THERRIAULT said the audit staff was present, but
Legislative Finance also is a branch that is under LB&A. The
committee probably should have Mr. Teal from Legislative Finance
weigh in on the issue also and see exactly what kind of
interaction the finance staff has with state agencies.
CHAIR SEEKINS said they would do that. He understood the
committee was going to concentrate on the following for a CS.
· Who throws the rope and when.
· Whistleblower protection for someone who may need that to
get the complaint filed.
· Continue looking at this as a felony or as a misdemeanor.
· Adding whether the employee who is dismissed would be
eligible for rehire.
SENATOR ELLIS asked if there was anyone from the Department of
Law signed up to testify and give their perspective.
CHAIR SEEKINS said they did not have anyone, but Mr. Hove was
going to ask someone from the Department of Law to attend the
next hearing on SB 45.
CHAIR SEEKINS announced SB 45 would be held in committee.
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