Legislature(2011 - 2012)BELTZ 105 (TSBldg)
01/18/2012 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB104 | |
| SB89 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 89 | TELECONFERENCED | |
| += | SB 104 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 89-LEGISLATIVE ETHICS ACT
1:49:34 PM
CHAIR FRENCH announced the consideration of SB 89. CSSB 89(STA),
version T, was before the committee and that a motion to adopt
Amendment 1, labeled 27-LS0452\T.1, was before the committee
with an objection. He asked the sponsor to refresh the member's
recollection of the bill, and noted that Joyce Anderson and Dan
Wayne were available to answer questions.
SENATOR JOHN COGHILL, sponsor of SB 89, stated that the bill
deals with standards of conduct for legislators. In Section 1,
the phrase "lawful gratuity" was changed to "gift" for
consistency with AS 24.60.80 and reference to the compassionate
gift language in AS 24.60.075 was inserted.
Section 2 seeks to draw a bright line for legislators and staff
involved in constituent problems. Once a matter goes to an
administrative hearing officer, the legislative office may not
attempt to influence the outcome unless: 1) the legislator or
staff is representing the constituent for compensation, 2) the
legislator or staff is called as a witness, or 3) the contact is
inadvertent and ex parte.
Section 3 eliminates the requirement for the [ethics] committee
to compile a list of financial disclosures. The disclosures are
instead forwarded to the presiding officer of each house and
published in the journals.
Section 4 adds public members to the statute prohibiting
disclosure of confidential information. He noted that the ethics
committee brought this to his attention as a potential
oversight.
1:53:37 PM
CHAIR FRENCH asked if this was specific to the Select Committee
on Legislative Ethics.
SENATOR COGHILL answered yes.
Section 5 clarifies that a ticket to a charity event from a
lobbyist or a gift received because of a ticket cannot exceed
$250 in value.
CHAIR FRENCH asked if $250 is a bright line cutoff that can't be
exceeded, and asked the record to reflect that Joyce Anderson
nodded her head.
SENATOR COGHILL confirmed that the aggregate value for the
calendar year can be no more than $249.99.
Section 6 clarifies that a legislator or staff may accept a
ticket to a charity event, or a gift in connection with a
charity event.
Section 7 extends from 30 days to 60 days the reporting period
for gifts of travel for the purpose of gaining information, and
for charitable events. It also includes reference to tickets to
a charity event under AS 24.60.80(c)(10).
Section 8 relates to exceptions to disclose by written request.
This language was broadened in the State Affairs Committee to
include exceptions if the disclosure would violate a rule,
adopted formally by a trade or profession, that state or federal
laws requires the person to follow. He noted reasons for
confidentiality with regard to both healthcare and legal
matters, but that a person that seeks to refrain from making a
disclosure shall provide written justification to the committee.
Section 9 clarifies that any volunteers and educational trainees
that work more than 30 days are required to take an ethics
course.
1:58:20 PM
CHAIR FRENCH asked the penalty for violating the provision.
SENATOR COGHILL replied the current procedure is for the ethics
committee to refer the matter to the presiding officer who makes
a decision about whether or not the volunteer can proceed.
CHAIR FRENCH asked Ms. Anderson if this had been an issue.
1:58:54 PM
JOYCE ANDERSON, Administrator, Select Committee on Legislative
Ethics, stated that there is no penalty in statute for someone
that doesn't complete ethics training. The policy has been to
contact both the legislator who hired the individual and the
presiding officer so they can persuade the individual to attend
training.
SENATOR COGHILL said Sections 10 and 11 make reference to the
new statute in Section 12 relating to the alternate members.
Section 12 is the new Sec. 24.60.131 relating to alternate
members. Currently there is no provision for an alternate public
member to serve in order to meet the quorum requirements.
CHAIR FRENCH asked if the procedure was roughly the same as for
a legislative alternate.
SENATOR COGHILL answered no; one is appointed by the Legislature
and one by the Court System.
MS. ANDERSON clarified that the recommendation was for just one
alternate public member, but that the service for the public
alternate and legislative alternates was similar. Responding to
a question, she said the public members, including the alternate
public member, are appointed by the Chief Justice of the Alaska
Supreme Court, and confirmed by the Legislature. The alternates
wouldn't necessarily shadow every meeting, but would be summoned
when required.
SENATOR COGHILL pointed out that page 12, lines 21-22, clarify
that once an alternate is designated to participate he or she
participates for the duration of that proceeding.
Section 13 relates to the legislative ethics course that
volunteers serving more than 30 days are required to attend.
Section 14 contains the definition of "legislative employee" and
clarifies that it does not include hourly employees who perform
incidental legislative functions.
SENATOR COGHILL described the bill as operational housekeeping
until Amendment 1, T.1, is considered.
2:02:48 PM
CHAIR FRENCH asked if Gavel to Gavel camera operators would be
considered legislative employees.
SENATOR COGHILL answered no.
CHAIR FRENCH referred to Section 2, page 5, and asked if the
provision prohibits a legislator from talking to an agency about
a timeline or the procedural status of a constituent's case.
SENATOR COGHILL replied not to his knowledge.
MS. ANDERSON confirmed that a legislator or staff could call
someone in the office to talk about case status, but the statute
does not allow contact with the hearing officer.
SENATOR COGHILL suggested Mr. Wayne speak to the meaning of
subsection (f) on page 13, lines 2-4.
2:05:05 PM
DAN WAYNE, Attorney, Legislative Legal and Research Services,
Legislative Affairs Agency, explained that this provision is
intended to prevent speculation about why any regular member of
the committee is disqualified from serving in a complaint
proceeding under AS 24.60.170, and replaced with an alternate
member.
CHAIR FRENCH asked if ethics complaints are lodged against
public members.
MR. WAYNE replied they are covered by the Ethics Act.
2:07:00 PM
SENATOR MCGUIRE joined the committee.
MS. ANDERSON questioned the intent of the change since
complaints are confidential and a person can recuse him or
herself for any number of reasons. She pointed out that the last
sentence of the current AS 24.60.130(n) states that, "The
designation shall be treated as confidential to the same extent
that the identity of the subject of a complaint is required to
be kept confidential."
SENATOR COGHILL posed a hypothetical situation of a complaint
lodged against him as a sitting member of the ethics committee.
He asked Mr. Wayne if he could waive confidentiality and speak
to the complaint if he recused himself and a reporter asked him
about the complaint.
MR. WAYNE said he would first point out that Section 15 of the
bill repeals AS 24.60.130(n). Paragraph (f) replaces that
language and says that the confidentiality provision that
requires the identity of the subject of the complaint be kept
confidential, would also apply to keeping the identity of an
alternate confidential. That confidentiality is created under
Sec. 24.60.170(l).
2:09:58 PM
CHAIR FRENCH summarized that the replacement of a member is kept
confidential to the same degree that a complaint is kept
confidential.
MR. WAYNE agreed, and reiterated that the language in paragraph
(f) essentially replaces the final sentence in AS 24.60.130(n).
CHAIR FRENCH clarified that the bill repeals all the language in
AS 24.60.130(n).
MR. WAYNE agreed.
CHAIR FRENCH asked Ms. Anderson if she had any thoughts on the
provision.
MS. ANDERSON referred to the hypothetical situation Senator
Coghill posed and pointed out that another part of the statute
says that a person that has a complaint against them has the
option to waive confidentiality. She said she was still confused
but would follow the committee's lead.
SENATOR COGHILL said he'd follow up and provide further
clarification.
CHAIR FRENCH said he flagged the section.
2:12:19 PM
CHAIR FRENCH asked Senator Coghill to explain proposed
[Amendment 1, labeled 27-LS0452\T.1.]
SENATOR COGHILL explained that the amendment is controversial
because it involves the state travel issue. He said he would
explain the two sections of the amendment and share his
rationale behind them. His intention is to seek a solution to an
issue that has been around since the '90s. Section AS 24.60.030
discusses behavior conduct and AS 24.60.031 addresses
fundraising. The language is exactly the same in both sections.
The amendment addresses whether somebody on state travel can do
any political activity anytime, anywhere. Current statutes place
an absolute prohibition on that. Legislators and the Select
Committee on Legislative Ethics have addressed this issue
throughout the years, and it remains a legitimate question.
2:14:15 PM
SENATOR COGHILL provided a scenario where a legislator who lives
in Anchorage could do legislative business for two hours during
the day and political activities for any of the rest of the day,
such as fund raising or house calling. If he wanted to see a
commissioner, he would have to fly to Juneau or Anchorage, or
drive. If he wanted to do it on state business he would prefer
to be reimbursed, but if he went to a Republican lunch in
Anchorage or a fund raiser or a partisan rally, he would be in
violation. Those alongside him could do the same political work
and attend all the political activities. Everyone who lives
outside the Anchorage area would be strictly prohibited and
everybody who lives in Anchorage would be okay. As a matter of
fairness, he was asking when it would be unethical for a
politician to be a politician and when it would be fair while
still maintaining the public trust. He said he was seeking a
balance.
The amendment says that it's acceptable to do partisan activity
under these conditions. He referred to page 1, lines 11-22:
... 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.
SENATOR COGHILL summarized that a legislator cannot raise money
while traveling "on the state dime," and emphasized the
importance of the public trust. He reiterated that the activity
should be during "the normal workday" and has to be incidental,
not planned. He thought his criteria were good, but he was open
to discussion. He concluded that the issue falls out to the
urban rural divide and that the legislators in the Anchorage
"Bowl" have an advantage.
2:20:41 PM
CHAIR FRENCH said the amendment may be held over. There may be a
chance of coming to common ground. He commended the sponsor for
bringing the issue forward and agreed it was a difficult issue.
He observed that legislators operate in a state building using
state resources for incidental personal use without running
afoul, but there is an absolute prohibition for using those
resources for campaign purposes. This wouldn't change that
prohibition. He said he believes that a legislator that is in
Anchorage on state travel from Fairbanks can take a phone call
about his or her campaign. There's nothing particularly special
to the location and the phone call. He said he'd like to clarify
that if a legislator needed to return to their hotel room to
work on campaign emails, that it would be okay because it's not
specific to a place. But he's not convinced about attending
political meetings, lunches, or other political events while on
state travel. "I'm struggling with that," he said.
2:23:50 PM
SENATOR COGHILL said the issue isn't specific to Anchorage, but
that's the most common. That's why he was suggesting on of the
standards be incidental to state travel. It's a tough question,
but right now anybody that doesn't live in the Anchorage area is
under separate, unfair, scrutiny.
SENATOR PASKVAN asked the meaning of the phrase "incidental to
the purpose of the travel."
SENATOR COGHILL said the primary reason for travel is one
criterion. An inordinate amount of time used on political
activities, beyond 51 percent, is way beyond incidental. He
referred to the definition of incidental that was included in
members' packets.
CHAIR FRENCH read the definition: "Subordinate to something of
greater importance, having a minor role."
2:26:36 PM
SENATOR COGHILL said his intention is to give a definition to
clarify the person's motive and action in order to determine if
there is an ethical problem. This language is probably
sufficient.
SENATOR PASKVAN agreed that the law would establish minimum
standards of conduct, and it was up to the individual legislator
to set higher personal standards of ethical conduct. There is no
bright line, so it comes back to personal ethics.
SENATOR COGHILL agreed and provided a personal example.
CHAIR FRENCH asked Ms. Anderson if there were any existing rules
that covered state-paid travel and campaign activity during the
travel.
2:29:35 PM
MS. ANDERSON reported that the Select Committee on Legislative
Ethics discussed this issue over the last four years and has
come to the same understanding as Senator Coghill. The statute
is very clear that state resources cannot be used for
campaigning. There is an absolute prohibition from attending
political events while on state-paid travel.
SENATOR COGHILL agreed, but pointed out that citizen legislators
often came across situations that put them in violation. The
statute uses the phrase "partisan political activity."
CHAIR FRENCH asked if that phrase was defined.
MS ANDERSON replied that there is a definition of "partisan
political activity" in state statute.
SENATOR COGHILL said he believes his amendment clarified the
definition.
CHAIR FRENCH questioned whether a campaign phone call while on
state travel was partisan political activity and suggested the
committee may need to have clarification from the ethics
committee.
2:32:35 PM
MS. ANDERSON reported that the ethics committee determined that
if the activity can only be performed because the legislator is
on a specific trip, then it's prohibited. She gave several
examples of prohibited activity, such as door knocking, dropping
off leaflets, a fund raiser, or having a press conference. Those
are things that can only be done at a specific location, versus
another location.
CHAIR FRENCH said he jotted down, "not related to the physical
location." Ms. Anderson agreed. Chair French commented that door
knocking was a good example.
2:33:56 PM
SENATOR COGHILL paraphrased the conduct and conflict of interest
section of the statute: "Use of public funds, facilities,
equipment, services, and other government assets, which includes
travel, for non-legislative purpose for involvement in, or
support of, or opposition to, partisan political activities for
the private benefit of the legislator, legislative employee, or
any other person." He concluded that it gives narrow exceptions.
The ethics committee has broadened its look at partisan
political activity exceptions connected to state travel. He
reiterated that the issue needs clarification.
CHAIR FRENCH agreed, and asked if any legislators had been found
guilty of ethics violations such as those mentioned.
2:35:42 PM
MS. ANDERSON said there haven't been any complaints that are in
the public record regarding the aforementioned examples, but
rather from legislators and staff asking what they can and
cannot do.
CHAIR FRENCH summarized that they are not reporting violations,
but instead are asking for clarification on what is appropriate
behavior.
MS. ANDERSON agreed, and gave an example of a legislator who
attended campaign activities while on a week-long, state-paid
trip. The ethics committee recommended that the individual pay
back the airfare.
2:37:09 PM
CHAIR FRENCH opined that the public does not want legislators to
use state money to advance a political cause. Activities that
are not location dependent would be acceptable.
SENATOR COGHILL said he was sympathetic to that idea, but also
to the legislator who has to fly into town to conduct business,
and is the only one prohibited from participating in any
political activity. He opined that it was wrong to strip someone
of their partisan label because they traveled somewhere.
SENATOR WIELECHOWSKI pointed out that a challenger doesn't have
the advantage of a state-paid trip for a partisan political
activity, and questioned why the incumbent should be given the
advantage.
SENATOR COGHILL cited the inequities experienced by non-
Anchorage legislators, and questioned whether, to provide a
balance, there should be prohibitions on partisan political
activities on those from Anchorage.
He said he doesn't understand why it would be a violation of
public trust for someone to stand with a group, with which they
are philosophically aligned, to participate in a political
activity when doing so is incidental to their state travel. He
said he wanted to have a clear accountability measure, and was
open to suggestions to clarify it further. He concluded that if
the amendment fails, it will come around again because an answer
is needed.
2:43:44 PM
CHAIR FRENCH clarified that there is no intention to allow
legislators to raise money during the session. He pointed out
that Anchorage legislators face Anchorage challengers so it's a
level playing field. He agreed with Senator Wielechowski's point
that a Fairbanks incumbent has a big advantage over a Fairbanks
challenger when using state funds to travel to Anchorage.
CHAIR FRENCH asked Senator Coghill to clarify his statement
about allowing a legislator to stand with a group with whom he
or she is philosophically aligned.
SENATOR COGHILL explained that he carries his philosophy very
openly and that draws invitations to speak to different groups.
It's okay if he speaks to a Chamber of Commerce, but it's a
problem if it's a political group and he is on state travel. He
shared a personal experience.
CHAIR FRENCH said he didn't think that Senator Coghill would run
afoul of this, but others might.
SENATOR COGHILL shared his basic philosophy of freedom and
responsibility.
CHAIR FRENCH noted that free people don't have access to the
state treasury.
2:48:18 PM
SENATOR COGHILL concluded that it's a problem to say a
legislator must not be partisan.
CHAIR FRENCH agreed there's a definite rub and reiterated his
appreciation for bringing the difficult issue forward.
He announced he would hold Amendment 1 open and set SB 89 aside
for further consideration.
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