Legislature(2011 - 2012)BUTROVICH 205
04/15/2011 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB89 | |
| SB98 | |
| SB104 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | SB 89 | TELECONFERENCED | |
| += | SB 104 | TELECONFERENCED | |
| += | SB 98 | TELECONFERENCED | |
SB 89-LEGISLATIVE ETHICS ACT
1:31:54 PM
CHAIR HOLLIS FRENCH announced the consideration of SB 89. [CSSB
89(STA), 27-LS0452\T was before the committee.]
SENATOR JOHN COGHILL, Sponsor of SB 89, stated that this ethics
bill is a work in progress that wound up in his hands. His chief
of staff, Ms. Moss, would provide a sectional analysis after
which he would offer an amendment. He noted that the current
version T removed some of the more contentious issues.
1:33:22 PM
RYNNIEVA MOSS, Chief of Staff to Senator Coghill, sponsor of SB
89, said the only changes in Section 1 appear on page 2. For
consistency with AS 24.60.080, the phrase "lawful gratuity" was
changed to "gift" and reference to the compassionate gift
statute, AS 24.60.075, was inserted.
Section 2 attempts to draw a bright line for legislators and
staff in dealing with constituents. It says that unless the
legislator is an attorney, the legislative office will stop
giving assistance to a constituent once the issue goes before an
administrative hearing officer. Inadvertent ex parte contact is
allowed.
CHAIR FRENCH asked, if he were to write a letter on behalf of a
constituent asking for a fair hearing on a permanent fund
dividend denial, if the letter would go to an administrative
hearing officer on the first level or to the department.
MS. MOSS replied the first level is called an informal denial
and at that stage he could communicate with the department. Once
there's a formal denial and a request for an administrative
hearing, the legislator's office would need to step away.
CHAIR FRENCH asked for an example of the point at which it is no
longer acceptable for a legislator to act in regard to child
placement actions under the Office of Children's Services (OCS).
MS. MOSS replied OCS has worked with legislative offices all
during the process even though it's actually a court case. They
also have a legislative liaison that legislative offices can
contact directly. An example where contact would be limited
beyond a certain point would be workers compensation. Once the
issue reaches the point of having administrative hearings, the
legislative office would have to back away. With regard to child
support, once the matter reaches the point of requesting an
administrative hearing, the legislative office can no longer be
involved.
1:36:43 PM
SENATOR COGHILL explained that the ethics laws were written
before there were administrative law judges so this was an
attempt to clarify the point at which a legislative office must
step away from a constituent issue they'd been working on. He
noted that at one point the Ethics Committee suggested a 10-hour
limit, but he believes this is a better way. It's okay for a
legislative office to help a constituent up to the point of the
administrative decision, but it's not okay to put pressure on
the decision-maker.
CHAIR FRENCH asked if legislators could safely send complaints
to a legislative liaison office about the way their constituents
were being treated.
MS. MOSS replied she didn't know the answer, but she didn't
believe there was a protection under the law. She added that the
biggest problem is when a constituent doesn't inform the
legislator or staff where they are in the process.
1:38:56 PM
CHAIR FRENCH asked if the ten-hour provision was an ethics
opinion or in statute at one time.
SENATOR COGHILL replied it was an ethics opinion.
CHAIR FRENCH asked if this would supersede that opinion.
SENATOR COGHILL answered yes.
SENATOR WIELECHOWSKI referred to the workers' compensation
example and said he reads the bill to say that a legislator
could call a department director to ask about the status of a
particular case.
MS. MOSS agreed.
SENATOR WIELECHOWSKI asked for confirmation that the legislator
couldn't contact the chief of adjudications.
MS. MOSS replied they could contact the person that is handling
the workers' compensation case, but not the hearing officer, the
attorney for the insurance company or the attorney for the
constituent.
SENATOR COGHILL added that the idea was to keep legislators from
becoming free legal advisors unless the legislator is a
practicing attorney.
1:40:26 PM
MS. MOSS clarified that a non-attorney can handle a workers'
compensation case, but once the matter gets to an administrative
hearing it's between the constituent, their attorney, and the
division under challenge.
SENATOR WIELECHOWSKI asked where it says the legislator couldn't
contact the attorney who represents the injured worker.
MS. MOSS replied it doesn't say that specifically, but once the
dispute goes to a hearing officer the legislative office isn't
supposed to contact those parties. Contacting a constituent's
attorney would be considered ex parte contact.
SENATOR WIELECHOWSKI asked where it says that in the bill.
MS. MOSS replied "ex parte" is contacting a party in a case
without going through the court.
SENATOR WIELECHOWSKI said his understanding is different.
CHAIR FRENCH said he believes that "ex parte" is between a party
and the judge without the other party being present.
SENATOR WIELECHOWSKI agreed.
SENATOR PASKVAN agreed, and said the purpose of that definition
of "ex parte" is to encourage contact between the parties
directly, but while they're trying to work things out neither
party can contact the judge without the other being present.
MS. MOSS added that the bill also requires legislators to
disclose any contact that is considered inappropriate.
1:42:51 PM
CHAIR FRENCH summarized that in this case "ex parte" would be
between a legislator and a hearing officer, not a legislator and
an attorney representing the constituent.
MS. MOSS responded that when she always asks constituents that
contact Senator Coghill's office for help if they engaged an
attorney.
SENATOR WIELECHOWSKI said he didn't believe that under current
law or if this were to pass that it would be illegal or
unethical for a legislator to contact a constituent's attorney
to express concern about the timeliness of a hearing.
MS. MOSS said she appreciates having that on the record.
SENATOR COGHILL recalled that the administrative law judge who
spoke to his office about two years ago had the same opinion.
CHAIR FRENCH noted that Joyce Anderson was online to answer
questions about ethics laws.
1:45:36 PM
MS. MOSS said Section 3 releases the Ethics Committee from
having to compile disclosure form statements, but it would still
have to maintain a record of the forms that are available to the
public.
Section 4 adds "or public member of the committee" to AS
24.60.060(a), which is the statute that prohibits disclosure of
confidential information.
Sections 5 and 7 have been reworded to make it clear that
legislators, their employees, or a public member of the
committee may not accept from a lobbyist a ticket to a
charitable event that is valued at more than $249.99.
SENATOR COGHILL added that it also allows accepting a charitable
gift beyond that amount from somebody other than a lobbyist, but
it must be reported and the event must be a sanctioned event.
MS. MOSS said Section 7 changes the reporting requirements from
30 days to 60 days for charitable gifts and gifts of travel for
purposes of gaining legislative information.
1:47:22 PM
SENATOR PASKVAN asked if this changes what a lobbyist may offer
to a legislator.
SENATOR COGHILL answered no. It changes charitable events that
are specifically mentioned in statute. The rewording attempts to
allow a charitable gift donation from people who are not
lobbyists.
1:48:44 PM
CHAIR FRENCH observed that it was a little confusing to talk
about tickets to a charitable event in conjunction with gifts,
and asked if this was separate from the general gift
prohibition.
MS. MOSS responded it addresses circumstances like receiving a
ticket to a sanctioned charitable event and winning the door
prize.
SENATOR COGHILL added that a question came up about winning a
cruise at the "Thanksgiving in March" event. In another instance
a legislator was given a gift from a non-lobbyist to sit at a
head table, which was valued at more than $400. An ethics
complaint was lodged but there was not an ethical problem. He
noted that it might be a problem if it wasn't a sanctioned
event.
MS. MOSS explained that Section 8 allows certain persons to
request a waiver from disclosing clients or making any
disclosures that would violate state or federal law or the state
or federal constitution. The State Affairs Committee added the
language "or a rule adopted formally by a trade or profession,
that state or federal law requires the person to follow." Thus,
certain occupations don't have to disclose their sources of
income from clients.
CHAIR FRENCH asked if it is an ethics disclosure, an Alaska
Public Offices Commission (APOC) disclosure, or both.
MS. MOSS replied it's an ethics disclosure.
SENATOR COGHILL added that under HIPPA there are some
restrictions on confidentiality, and there was some concern
about reporting if a legislative office was working on a
healthcare issue for a constituent.
MS. MOSS said Sections 9 and 13 were added in the State Affairs
Committee, and state that if someone is a volunteer or
educational trainee for 30 days they would be expected to take
an ethics class.
Sections 10 and 11 make reference to the new statute in Section
12.
Section 12 is a new section of law that deals with alternate
members. It adds an alternate for a public member and allows
them to participate in the full proceeding once they've been
selected.
SENATOR COGHILL said it became apparent that it would be easier
to make a quorum for the public members if there was an
alternate. A decision was made that once the alternate was
engaged in a particular ethical question they should remain
until the conclusion. That is true for the public and
legislative alternates.
1:53:42 PM
MS. MOSS said Section 14 changes the definition of "legislative
employee." It clarifies that hourly employees are not included
and are not required to take ethics training.
1:54:28 PM
SENATOR COGHILL observed that the bill was a benign housekeeping
matter without his amendment, which addresses how to reasonably
and properly allow legislators to participate in partisan
political activities while on state travel. Generally speaking,
most of the meetings that legislators hold outside of Juneau are
held in Anchorage or Fairbanks. Legislators from those urban
areas may attend partisan events after conducting state
business, but those from out of town cannot. He said he was
trying to find a reasonable solution without allowing
legislators to use state money to campaign. That's the one-way
valve. "We want them to do one thing nobly, and we don't want
them to use it improperly."
1:56:37 PM
SENATOR COGHILL moved Amendment 1, labeled 27-LS0452\T.1.
AMENDMENT 1
OFFERED IN THE SENATE BY SENATOR COGHILL
TO: CSSB 89(STA)
Page 1, line 7, following "instances;":
Insert "allowing legislators and legislative
employees, in certain circumstances, to participate in
partisan political activity while on state travel;"
Page 5, following line 26:
Insert new bill sections to read:
"* Sec. 3. AS 24.60.030 is amended by adding a new
subsection to read:
(j) Notwithstanding the limitations under
(a)(2), (a)(4), and (c) of this section and
subject to other state or federal laws, a
legislator or legislative employee who is on
state travel may participate in partisan
political activity, including campaign activity,
if
(1) the participation is incidental to
the purpose of the travel;
(2) the legislator or the legislative
employee does not use or authorize the use of
state resources to pay for the activity; and
(3) the legislator or legislative
employee does not participate in the activity
(A) during a normal workday
between 8:00 a.m. and 5:00 p.m., excluding
meal breaks;
(B) on a state or municipal
election day;
(C) during the 30 days
immediately preceding an election in which
the participating legislator or the
legislator for whom the participating
employee works is a candidate for elective
office; or
(D) by fund raising for a
political party or campaign.
* Sec. 4. AS 24.60.031 is amended by adding a new
subsection to read:
(d) Notwithstanding the limitations under
(a) and (b) of this section and subject to other
state or federal laws, a legislator or
legislative employee who is on state travel may
participate in partisan political activity,
including campaign activity, if
(1) the participation is incidental to
the purpose of the travel;
(2) the legislator or the legislative
employee does not use or authorize the use of
state resources to pay for the activity; and
(3) the legislator or legislative
employee does not participate in the activity
(A) during a normal workday
between 8:00 a.m. and 5:00 p.m., excluding
meal breaks;
(B) on a state or municipal
election day;
(C) during the 30 days
immediately preceding an election in which
the participating legislator or the
legislator for whom the participating
employee works is a candidate for elective
office; or
(D) by fund raising for a
political party or campaign."
Renumber the following bill sections accordingly.
Page 13, following line 24:
Insert a new bill section to read:
"* Sec. 17. AS 24.60.990(a) is amended by adding a
new paragraph to read:
(17) "state travel" means travel with
transportation or overnight lodging that is
provided or paid for with state resources."
Renumber the following bill section accordingly.
CHAIR FRENCH objected and opened discussion on the amendment.
SENATOR COGHILL said he would understand if the Chair decided to
set the bill aside for more in depth consideration next session.
He explained that the amendment addresses AS 24.60.030, which
talks about ethical management, and AS 24.60.031, which talks
about the management of fundraising. He read the amendment into
the record and the following legal definition of "incidental:"
"Subordinate to something of greater importance; having a minor
role." He was trying to say that there are reasons to prohibit
the activity, but there should be an accommodation for
participation in partisan political activity that is clearly
incidental. Whereas fund raising for any political party or
campaign while on the state dime is absolutely prohibited. This
sets the bar and clarifies that the activity has to be very
small in comparison to the activity for which the legislator is
using state travel.
SENATOR COGHILL said if he goes to Anchorage on state travel and
is called by a radio program and gives his opinion, he could be
charged with participating in partisan activity when he's really
just articulating his beliefs. The question needs to be answered
and the forgoing are the criteria he set.
2:03:25 PM
CHAIR FRENCH said he appreciates the thought that went into the
amendment and shares some of the concerns. Leveling a complaint
that a legislator has violated the ethics rules is a powerful
complaint. It will be discussed further over the summer and next
year. Some of the questions that arise relate to the size
differences in the legislative districts and the sort of things
a legislator should be able to do when he/she is paid to travel
inside his/her own district. Some things could conceivably be an
ethics violation under the current rules and he's not sure they
should be. Is it a violation if you're traveling to Anchorage on
state business and you update your Facebook page relating to
your campaign when you're in your hotel room at night? Could you
call into a Fairbanks radio show from Anchorage promoting your
campaign while on state travel? He reiterated that he'd spend
time on the question between now and next year.
2:05:54 PM
SENATOR WIELECHOWSKI stated agreement. If a legislator is
traveling to Anchorage and gets a call from a radio station
asking about partisan activities, does it matter if that
legislator is in Anchorage or Fairbanks? The problem has been
how to define where that line is. The State Affairs Committee
couldn't figure it out, but with further dialog there may be a
solution.
SENATOR COGHILL said he assumes that some legislators and some
people that watch legislators will be bad actors, but others are
genuinely concerned about ethical behavior. It's a balance and
he's trying to figure out the clearest rule possible. Trying to
define motives is not the answer, but defining action items
helps establish bright lines so that legislators know what is
expected of them as partisan people. It also helps those who
genuinely want to keep legislators ethically accountable for the
use of state resources.
He said his district includes the Richardson Highway, the Glenn
Highway, the Denali Highway, and the coast from Valdez to
Whittier so he can be anywhere in those communities and be
totally forbidden from going to a Republican event even though
he had traveled 800 miles to visit three other communities in
the district. It's painful to be unable to participate.
Under the current statutes, there is an exact prohibition on
partisan activity anytime a legislator is on the state dime.
This leaves legislators vulnerable to people who have bad
intentions. The Ethics Committee has discussed this extensively
over the years and legislators have repeatedly asked for relief.
He asked the committee to carefully consider the amendment; it's
his best effort to define what is and is not ethical.
SENATOR COGHILL asked the Chair how he wanted to proceed with
the amendment and the bill itself.
2:11:19 PM
SENATOR PASKVAN commented that he looks forward to further
healthy debate on the matter and believes that this committee is
best suited for this substantive discussion. It's a complex
subject that requires careful consideration from both sides.
Legislators should always act ethically, but he doesn't want to
give unfair advantage to someone who can use private wealth to
scam the system, knowing that the person they're attacking can't
fight back because they were traveling at state expense.
SENATOR COGHILL said he's passionate that this is not about
fairness; it's about what is ethical. Right now you can't be a
partisan politician while on the state dime. That's not
reasonable and doesn't address the ethical question.
CHAIR FRENCH stated that he'd leave matters as they are; both
the bill and the amendment are in front of the committee and he
was maintaining his objection.
2:14:10 PM
SENATOR COGHILL said his office was prepared to work with the
committee and was open to suggestions.
CHAIR FRENCH announced he would hold SB 89 in committee.
| Document Name | Date/Time | Subjects |
|---|