Legislature(1997 - 1998)
04/09/1998 08:13 AM House STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 105 - ETHICS/LOBBYING/CAMPAIGN FINANCE Number 0157 CHAIR JAMES announced the last order of business is CSSB 105(FIN) AM, "An Act relating to legislative and executive branch ethics; relating to campaign finances for candidates for state office; relating to the conduct and regulation of lobbyists with respect to public officials; relating to the filing of disclosures by certain state employees and officials; making a conforming amendment to the definition of 'public official' for employment security statutes; and providing for an effective date." CHAIR JAMES said they have gone through the process that affects the legislature, they are at the place where they will be affecting the executive branch. Chair James mentioned Suzie Barnett is on teleconference in Anchorage She suggested the committee go through the amendments as systematically and as quickly as possible starting with LS0074\L.1, Cramer, 4/3/98. Number 0171 BEN BROWN, Legislative Administrative Assistant to Senator Tim Kelly, Alaska State Legislature came before the committee to explain the amendments. He said Amendment L.1 deals with the issue of the Executive Branch Ethics Act enforcement agency which is currently the Department of Law (manifested under the attorney general), except for complaints that are sent to hearing and those are heard before the Personnel Board. MR. BROWN stated the problem with the approach that the Senate took in transferring authority in the bill from the Office of the Attorney General almost exclusively to the Personnel Board is that it first of all gave the powers to enforce the executive branch ethics to (indisc.) who didn't want it, a citizen personnel board that never had that responsibility with that magnitude before. MR. BROWN said, "The second big problem was the enormity of the fiscal impact which was about $250 thousand a year in creating new positions to staff the Personnel Board to basically act like an executive branch ethics committee. ... It was determined that there were more cons than pros, therefore Amendment L.1 tries to go back into the legislation and change back the structure of the transfer of power so that the [Office of the] Attorney General's Office is responsible for the 'lion's share' of ethics advise, and complaints, resolution and dismissal, and even over sighting in conjunction with the designated supervisors in the executive branch. Only at the point when an issue goes to hearing will the Personnel Board probably will take an active role except with one change. Right now when the attorney general settles or dismisses a complaint - that really can't be undone, the bill doesn't seek to give the Personnel Board power to undo those resolutions or dismissals it does give the Personnel Board the power to, if they find that the resolution or dismissal is grossly inconsistent with the provisions of AS 39.52, to tell the subject that they're going to publicize the resolution of the dismissal. The number of cases that this will likely happen is probably very small because very often when (indisc.) he negotiates a resolution, makes public disclosure a provision of it in the interest of executive branch ethics." Mr. Brown stated the seven-page amendment deletes many references of the Personnel Board and replaces them with references to the Office of the Attorney General. Number 0198 REPRESENTATIVE BERKOWITZ asked if it just restores things to the way they essentially are. MR. BROWN replied essentially yes. Number 0199 REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment LS0074\L.1, 4/3/98. There being no objections, Amendment L.1 was adopted. Number 0201 CHAIR JAMES asked Mr. Brown to address Amendment LS0074\L.2, Cramer, 4/3/98. MR. BROWN explained Amendment L.2 deals with fund-raisers happening when people are traveling at state expense. This language puts a prohibition in place for legislators, governor and lieutenant governor. If you go somewhere at state expense it should have to be incidental if you end up staying there and holding a political fund-raiser it should not at any way be apparent to the public that that was part of the reason there at state expense. This puts a 48-hour ban in place to try to prevent that sort of activity. Page 17, following line 5, insert a new bill section to read: *Sec. 21. AS 24.60.031 is amended by adding a new subsection to read: (c) a legislator may not travel at state expense to a place in which the legislator plans to hold a campaign fund raising event if the travel occurs less than 48 hours before the event is scheduled to begin. This subsection does not prohibit a legislator from holding a campaign fund raising event in a place to which the legislator traveled at state expense if the travel to the place is completed at least 48 hours before the event was scheduled to begin. Page 48, following line 31, insert a new subsection to read: (b) Except for travel to the capital city, an elected official may not travel at state expense to a place in which the official plans to hold a campaign fund raising event if the travel occurs less than 48 hours before the event is scheduled to begin. This subsection does not prohibit an elected official from holding a campaign fund raising event in a place to which the elected official traveled at state expense if the travel to the place is completed at least 48 hours before the event was scheduled to begin. In this subsection, "elected official" means the governor or the lieutenant governor. Number 0210 REPRESENTATIVE BERKOWITZ stated, "I drive home at the end of session ... they want to have a fund-raising event for me when I get there, they can't do it." MR. BROWN replied they can after 48-hours or if you don't take your state reimbursement for the drive. If it were 48-hours after you got home state expense would cover your reimbursement. Number 0213 CHAIR JAMES stressed she didn't think that was ever the intent of this amendment, there should be an exception when you go home at the end of the legislative session. She suggested they include that as an amendment to this amendment. MR. BROWN indicated that was discussed with the drafter as an exemption for adjourning travel not for convening travel. REPRESENTATIVE BERKOWITZ remarked if you don't want people to travel at state expense solely or primarily to have a fund-raising event, and if that's the case why don't we just say it that way. CHAIR JAMES asked for a motion to adopt Amendment L.2 for discussion and amending if needed. Number 0222 REPRESENTATIVE HODGINS made a motion to adopt proposed Amendment L.2 for discussion. REPRESENTATIVE RYAN objected. CHAIR JAMES noted there is an objection. Chair James said she believes it should be amended that in the adjourning trip home, especially when they are limited to any campaigning while in the capital and there is so little time, going home should not be the issue. REPRESENTATIVE HODGINS said he is totally against the amendment since he lives in Kenai and makes many trips to Anchorage. He indicated this means he can't go into Anchorage two days prior to, a function or committee meeting, or something like that. He will be voting against it if it is a 48-hour thing. CHAIR JAMES responded it is not proper for her to fly from Fairbanks to Anchorage to attend fund-raising. She indicated she has either paid her own way or used her campaign funds to pay and has not traveled to Anchorage for a fund-raiser on state pay because she doesn't believe it's right. Number 0234 REPRESENTATIVE HODGINS continued. He pointed out Kenai is so close to Anchorage that he will make several trips back and forth. If he has business the day before (an Oil and Gas Committee meeting) and travels on a state warrant and returns to Kenai and the following day travel to Anchorage on his own money for a fund-raiser that would unduly restrict him for the compensation of traveling the day before. He said they're assuming that you... CHAIR JAMES stressed the four days is a problem in the amendment. REPRESENTATIVE HODGINS read the amendment which addresses traveling at state expense and travel that occurs less than 48 hours before the event is scheduled to begin. He stressed if he makes a round- trip on Tuesday and attends a fund-raiser on Wednesday... CHAIR JAMES reiterated this isn't going to work. MR. BROWN remarked he believes the drafter deleted another sentence when she put the legislative language in there. He indicated at that time they were only dealing with the governor. Number 0246 CHAIR JAMES noted the governor is what prompted them on the issue of whether or not he should be raising funds while they are in a legislative session when someone is running against him. She said, "We tried to solve on the floor ... so now he can't. That means he can go visit somebody, any place in the state, and have a fund- raiser while he's there. Unless we put something in here, that's still allowed. I don't think it should be, and I think it's fair for both of us to not." She asked that this amendment be withdrawn for now and move onto the next amendment. Number 0254 REPRESENTATIVE HODGINS removed his motion to adopt Amendment L.2. CHAIR JAMES indicated they need to talk to the drafter. Number 0255 MR. BROWN said Amendment LS0074\L.3, Cramer, 4/3/98, attempts to remedy an apparent oversight in the personnel Act that permits exempt employees to run for office while keeping their jobs. Presently it would mean you could be the commissioner of Administration and you could run for state Senate while you're the commissioner even though you couldn't do it if you were the commissioner's secretary. He remarked that's probably not the best possible public policy, there's only one example where someone who was in an exempt position decided to run for office (in the prior administration to this one) and that person was removed by his commissioner. MR. BROWN stated, "The problem, by just putting the entire exempt service into the category of state employees who immediately resign their positions upon running for state office, is that there are a lot of people on the exempt service who don't want to (indisc.) in - all teachers - everyone who works for the university. This list attempts to go through the list of persons in the personnel Act (the second page of the amendment is a photocopy of the list of whose in the exempt service from the personnel Act) and it picks from that list certain categories of persons. Representative Berkowitz had suggested five of them at the outset, and working with the drafter several more persons that don't seem to be particularly unfit to run for public office due to the high- sensitive nature of their exempt political position or while they're holding both have been exempted - people on the welfare program, people who work in the "Challenge" program, young people who are in the 'youth corps challenge program,' people who work steady (Indisc.)university (indisc.). There's no real public policy - it assumes in preventing them from running for office like there is for those who higher-level political appointees getting a state paycheck and then running while they're holding that state office." Page 38, following line 29: Insert a new bill section to read: *Sec. 66. AS 39.25.160(e) is amended to read: (e) An employee in the classified, [OR] partially exempt, or exempt service who seeks nomination or becomes a candidate for state or national elective political office shall immediately resign any position held in the state service. The employee's position becomes vacant on the date the employee files a declaration of candidacy for state or national elective office. This subsection does not apply to (1) a justice, judges, magistrates, and employees of the judicial branch, including employees of the judicial branch, including employees of the judicial council; (2) the governor or the lieutenant governor; (3) a member of the legislature; (4) an employee seeking election as a delegate to a constitutional convention; (5) officers and employees of the University of Alaska; (6) certificated teachers and noncertificated employees employed by a regional educational attendance area established and organized under AS 14.08.031 - 14.08.041 to teach in, administer, or operated schools under the control of a regional educational attendance area school board; (7) certificated teachers employed by the Department of Education as correspondence teachers, teachers in skill centers operated by the Department of Education, or teachers at Mt. Edgecumbe School; (8) members of boards and commissions and authorities if the member is not entitled to compensation other than per diem and travel for service on the board, commission, or authority; (9) emergency fire-fighting personnel by the Department of Natural Resources for a fire emergency or for fire prevention and related activities conducted under AS 41.15.030; (10) youth employed by the Department of Natural Resources under the Youth Employment and Student Intern programs; (11) students employed by the state institutions in which the students are enrolled; (12) persons engaged in employment or pre-employment training programs operated by the Department of Military and Veteran's Affairs; (13) a participant in the Alaska temporary assistance program under AS 47.27 who holds a temporary position with the state in order to obtain job training or experience. Number 0272 REPRESENTATIVE BERKOWITZ made a motion to move Amendment L.3 for discussion. REPRESENTATIVE RYAN objected. He said he is uncomfortable with the whole position of limiting how people can make a living because they want to take part in the political process. Representative Ryan pointed out two representatives had to resign before they ran for office. He asked why does a person have to give up their career because they want to take part in the political process. REPRESENTATIVE BERKOWITZ responded this takes away that restriction, this opens it up. REPRESENTATIVE RYAN asked it that is going to include people working here whose legislative system... REPRESENTATIVE BERKOWITZ said these people as he understands, who are listed, can now run for office as opposed to not being able to run for office before. Number 0279 REPRESENTATIVE HODGINS remarked there still would be a restriction, there would be some people that could not run for public office without resigning. CHAIR JAMES asked Mr. Brown to tell the committee again who these people are. MR BROWN noted they would be employees of the legislature, commissioners of departments, legislative aides, and special assistants to commissioners. People in the partial-exempt service in a lot of these positions -- deputy directors already cannot run, it's the higher-level people in the executive branch that are not covered by this law. All the secretaries are prohibited from running for state office while they have that job, many of their bosses are not, that's the inconsistency in the current law. Number 0286 MR. BROWN stated, "By going through this list and being very specific about who in the exempt service is not being made to resign upon running for office, we actually put a little amount of protection - a bubble around some other people. Like officers and employees of the University of Alaska, certificated teachers and noncertificated teachers employed by an REAA (Rural Education Attendance Area), the teachers at Mt. Edgecumbe, members of boards and commissions." REPRESENTATIVE RYAN interjected that he is not going to let teachers run for office while other people are restricted. CHAIR JAMES asked Representative Ryan if he was saying that he wants people to keep their jobs, but if they're teachers he doesn't. Number 0292 REPRESENTATIVE RYAN replied everybody. This amendment restricts certain people and allows other people -- it's bologna. He believes it should be all or none. Anybody can exercise their privileges as a citizen, stand as a candidate, or nobody can. REPRESENTATIVE BERKOWITZ reiterated that this opens it more than it is now. Number 0298 REPRESENTATIVE ELTON pointed out in some cases it calls for difficult decisions on the part of people who opt to run for public office. For example, Representative Elton said he had a very high- paying job in the exempt state service when he made the decision to run he resigned his job because he thought it would be awkward for him to control a budget of $15 million at the same time that he was running for legislative office. He said he believes that that's the appropriate decision, and thinks that's a decision that ought to be enforced on a lot of other people in the exempt state service. He indicated the difficulty that he has is that his clerical staff and some of the nonprofessional staff were also exempt state employees. Representative Elton asked, "How do you craft a perfect law that would allow them to do that because I think it's probably more appropriate if they didn't control the budget? I don't know. I support this because I think this opens it up a little bit more than it was before, especially for those in the teaching service, but it is a difficult decision." REPRESENTATIVE RYAN reiterated, "If we're going to hold people down, let's hold everybody down, or we're going to open it up and let everybody have a chance." Number 0311 CHAIR JAMES said she tends to agree on both sides of this issue, however, she believes there is a common line. Even though they will be running for office (without having much time for campaigning) she doesn't see how anybody can continue to do their work and run for office. Chair James said, "If you're on the state payroll ... it seems to me like maybe resigning isn't the issue but certainly taking a leave-without-pay is because you ought not to be being paid while you're campaigning because you can't possibly be doing your work, and you're getting paid while you're campaigning. ... The perception by the public, that if you are running for office, which is a very intensive thing to do and you're still on the state payroll that that's wrong. ... It doesn't seem reasonable to me that a challenger should be able to have it both ways." Number 0323 REPRESENTATIVE HODGINS offered a proposed amendment, along that line, to Amendment L.3, line 6, which would read: Office shall immediately resign or take leave-without-pay for any position held in the state service. REPRESENTATIVE HODGINS indicated this does what Representative Ryan and Chair James would like to see. CHAIR JAMES said it does, however, she doesn't believe it applies to Representative Ryan's concerns. REPRESENTATIVE HODGINS explained the rest of the list then would not have to take leave-without-pay. Number 0329 REPRESENTATIVE BERKOWITZ objected. He said he might be willing to contemplate this amendment if people in the private sector resigned from their positions or went on leave-without-pay in order to run. Representative Berkowitz said, "I think what this does is unfair to people in the public sector - to say that they can't do their jobs - the option is always available. Now we want to ensure that they do their jobs correctly, that's what we have supervisorial structure for, that's what we have this whole (indisc.) all this ethical codes to ensure. But, when we put public employees in a different position than private employees that's unfair. We talk a lot about making government more like private industry, one of the ways we can do it is let public employees run for office just like private employees." CHAIR JAMES remarked there is a vast difference between private employment and public employment because we all pay for the public employment and most of the decisions that the legislature makes affect that public employment. If you need to quit your job on private employment, that's up to your employer not to the public because your job is not assumed to have any conflict with the job you are running for. Number 0339 REPRESENTATIVE HODGINS further explained that his amendment would allow people in Amendment L.3, line 4, to keep their job, to take a leave-without-pay otherwise under this section they would have to quit or they can't run. He reiterated this would allow them to keep their job and run for office and then be reinstated into their job. (e) An employee in the classified, partially exempt, or exempt service who seeks nomination or becomes a candidate for... REPRESENTATIVE BERKOWITZ responded a lot of people he knows in public service have accumulated vast amounts of leave, compensated leave time, if they choose to use that leave and run for public office they should be allowed to do that. Or alternatively, someone can run for office, just put their name on the ballot and not do any active campaigning. He said there's all kinds of ways of running for office. Some of us are more vigorous than others. Some times it's just a question of mailing things out, and getting on Television and radio. He mentioned he's a door knocker himself but not everybody's going to adopt that tactic. Number 0346. REPRESENTATIVE RYAN said, "We live in a political arena constantly in this business and I happen to look at the actions as to what the political consequences may be. If I recall correctly from last election, the opposition to my party ran 16 candidates and lost 16 races, they had a net loss of minus three. Obviously their candidate pool has been diminished somewhat. Opening this up here allows a whole new group of individuals to enter the arena and I don't think that, being a political animal, that I want to do that. I like my own survival and it was rough enough to start with and I'm not going to aid and abet the opposition no matter how loyal and wonderful people they are in helping them further their political agenda, so I'm not going to support this." REPRESENTATIVE ELTON stated for the record, "Anything that we can do to encourage any Alaskan to run for public office is a good step and I get a little bit upset when I hear people argue that some people ought not run because it reduces somebody's candidate pool. I think that any Alaskan who wants to run ought to be able to run. I will offer my first candidacy for elected state office as a good example, my opponent was an honorable person, he was a state employee, he was a teacher and I think that everyone of the voters in my district benefited from his participation in one of the most important public processes that we go through. So any argument that is used to preclude those people from running..." CHAIR JAMES interjected that she let him rebut to Representative Ryan's comment that really had nothing necessarily to do with whether or not this amendment to the amendment is appropriate. CHAIR JAMES reread the amendment. TAPE 98-51, SIDE B Number 0042 CHAIR JAMES said that's a whole different issue whether you're paid or not paid in this case. She asked if there was any objection to the amendment to the amendment. Number 0045 REPRESENTATIVE ELTON offered a friendly amendment to the amendment. He suggested it read, "or take any leave" for any position, that leaves it open for annual leave or leave-without-pay. CHAIR JAMES stated that totally changes the amendment to the amendment and would have to be a separate amendment. REPRESENTATIVE BERKOWITZ said if Representative Hodgins can withdraw his amendment then we could maybe... Number 0049 REPRESENTATIVE HODGINS withdrew his amendment. There being no objection, the amendment to the amendment was withdrawn. Number 0052 REPRESENTATIVE ELTON offered his amendment to the amendment. After the word resign, line 6, suggested adding "or take leave from": or take leave from any position held in the state service. REPRESENTATIVE HODGINS objected. REPRESENTATIVE ELTON spoke on his amendment to the amendment. He said, "What we're doing is we're broadening the pool of people and we're increasing the options that a person may have if they make a decision to run for public office." CHAIR JAMES said, "I think what this does is contrary to the intent of this piece of legislation that allows them to continue to receive funds from the state or from the public entity while they're running which is not the intent of this legislation so I'm objecting." CHAIR JAMES asked for a roll call vote. Representatives Hodgins, Elton and Berkowitz voted in support of the amendment to the amendment. Representative James and Ryan voted against it. Therefore, the amendment to the amendment passed and was before the committee. CHAIR JAMES stated the amendment is before the committee and asked if there were objections to the amendment. Number 0067 REPRESENTATIVE RYAN objected. CHAIR JAMES asked for a roll call vote on Amendment LS0074\L.3 as amended. Representatives Hodgins, Berkowitz and Elton voted in support of the amendment. Representative James voted against it. Number 0081 REPRESENTATIVE ELTON asked a procedural question. With eight members on a committee do we have a quorum now and can we adopt a motion. CHAIR JAMES said you're right we can't. CHAIR JAMES asked for an at-ease for approximately eight minutes for the purpose of obtaining a quorum. Number 0084 CHAIR JAMES called the meeting back to order. Number 0088 REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment LS0074\ L.3 as amended. MR. BROWN explained the amendment to Representative Sanders. Number 0105 CHAIR JAMES objected to the amendment and asked for a roll call vote. Representatives Berkowitz, Hodgins, and Elton voted in support of the amendment. Representatives Sanders and James voted against it. Therefore, the Amendment L.3 passed. CHAIR JAMES announced the next one up is L.4. Number 0110 MR. BROWN addressed Amendment LS0074\L.4, Cramer, 4/3/98. He said, "L.4 deals with, in the Executive Branch Ethics Act, a moratorium on the receipt and official consideration of complaints by the Ethics Committee in a period immediately preceding a campaign. The policy goal here is to prevent the politicization of the ethics process by taking away the committee's ability to actually literally receive the complaint from a complainant and begin determining whether or not it's valid and all the other stuff that (indisc.) forward in the ethics process." MR. BROWN continued, "The mechanics are, that if in the campaign period (which is 45 days before the primary or the day you file, whichever is later), once that campaign period clock starts ticking if someone files a complaint against you, Suzie [Barnett] would have to say to the complainant, 'I'm sorry we're in a campaign period, I hereby return this to you, you're free to bring it back.' However, once the campaign period is over, that campaign period ends the day after the primary (if you lose the primary), or the day after you're reelected. ... The candidate does have the option, however, 11 days after the notification by the committee that an attempt to file the complaint was received to waive the provisions of this amendment. The goal there being that if you're so sure you're innocent, you're not afraid to have the Ethics Committee investigating you while you're running for office, you have the right to waive this protection." Page 28, Line 30, following ".": Insert: The committee shall respond to a complaint concerning the conduct of a candidate for election to state office received during the campaign period in accordance with (o) of this section. Page 32, following line 8: Insert a new bill section to read: *Sec. 52. AS 24.60.170 is amended by adding a new subsection to read: (o) The committee shall return a complaint concerning the conduct of a candidate for state office received during a campaign period to the complainant unless the subject of the complaint permits the committee to assume jurisdiction under this subsection. If the committee receives a complaint concerning the conduct of a candidate during the campaign period, the committee shall immediately notify the subject of the complaint of the receipt of the complaint, of the suspension of the committee's jurisdiction during the campaign period, and of the candidate's right to waive the suspension of jurisdiction under this subsection. The candidate may, within 11 days after the committee mails or otherwise sends notice of the complaint to the candidate, notify the committee that the candidate chooses to have the committee proceed with the complaint under this section. If the candidate does not act within that time or if the candidate notifies the committee that the candidate is not waiving the suspension of committee jurisdiction, the committee shall return the complaint to the complainant with notice of the suspension of jurisdiction under this subsection and of the right of the complainant to file the complaint after the end of the campaign period. A campaign period under this subsection begins on the later of 45 days before a primary election in which the legislator or legislative employee is a candidate for state office or the day on which the individual files as a candidate for state office and ends at the close of election day for the general or special election in which the individual is a candidate or on the day that the candidate withdraws from the election, if earlier. For a candidate who loses in the primary election, the campaign period ends on the day that results of the primary election showing that another individual won the election are certified. Number 0125 REPRESENTATIVE ELTON made a motion to move Amendment L.4, Cramer, 4/3/98. He asked Mr. Brown, "Under the effective dates of the bill you put Section 52 would take effect in January 1, 1999 and so this would not apply to this campaign year. Could you tell me why you've got it with that effective date when there are a couple of other effective dates?" MR. BROWN replied, "Merely because there's 114 sections in the bill. Rather than go through and pick out which ones needed to be effective now or then, there's kind of a default delayed effective date, especially to the executive branch changes to give them time to prepare for the changes. There may in the provisions to the legislative ethics code that are good I think and it would be nice to have them go into effect earlier. I just didn't want to have such a 'salt and pepper' approach, that it was really confusing what was going into effect when. So the effort here is to make a very minimal number of things going into effect immediately -- and the vast majority of the rest of them." Number 0137 REPRESENTATIVE HODGINS remarked we had questions yesterday concerning a time period. He asked if that was going to be reflected somewhere or should that be inserted in this. MR. BROWN replied, "I think that needs to be another amendment to [AS] 24.60.170, but it's not going to be in subsection (o). I will be happy to work with you in this committee or hypothetically in the next committee of referral to make sure we have a concrete proposal on the idea of whether or not it's any more appropriate for the Ethics Committee to release a decision immediately before an election than it is for them to start proceedings since both actions by the Ethics Committee obviously can have an effect on the political process. I don't think it's possible to tweak this, and I certainly didn't try to between yesterday and today." He indicated he would get something drafted on this. CHAIR JAMES asked if there were objections to Amendment L.4. Number 0149 REPRESENTATIVE ELTON said what bothers him the most is it's assuming that any complaint that is filed during an election period is politically driven. There are going to be cases in the future in which a complaint is a justified complaint. When you have those kinds of situations, he believes it's important that the public know, or that there is some kind of a resolution before an election period. He may end up voting for this, but we're just assuming that all complaints about a (indisc.) person's activities are going to be politically motivated. Representative Elton said he doesn't believe all of them will be and those that aren't ought to be part of the political debate that occurs before a campaign is finished. Number 0156 CHAIR JAMES gave an analogy. She said we make these decisions all the time, if there are more offenders than there are nonoffenders, generally bring everybody down to the level of offenders - we do it on every piece of legislation that has to do with crime or other restrictions and that's what we're doing here. If most of the complaints are politically motivated, then we're bringing them down and saying no one can do it. Chair James understood Representative Elton's concerns but noted that's the way our system works. Number 0161 REPRESENTATIVE BERKOWITZ objected. Number 0162 CHAIR JAMES asked for a roll call vote on Amendment L.4. Representatives, Hodgins, Sanders, Elton, and James voted in favor of the amendment. Representative Berkowitz voted against it. Therefore, Amendment L. 4 was adopted. Number 0166 MR. BROWN noted Amendment LS0074\L.5, Cramer, 4/3/98, deals with the campaign finance provisions of the bill that were already dealt with by both the House and Senate and their respective passages of SB 275. SB 275 allows the governor to raise money during a session and allows legislators who are running for the office of governor to also raise money during a session, it does not allow by default legislators running for the legislature to raise money during a session. The original approach of the bill was to create one category of candidacy called "state office" that included all legislators, governor and lieutenant governor. Because we're going to have a different standard about when money can be raised by either the executive branch or legislative branch, depending on the office they're seeking not the office they're currently holding, this amendment is necessary. Amendment L.5 removes all the references to "state office" and replaces them with bifurcated reference to either governor, lieutenant governor, or legislature. The net effect is to permit legislators who are running for the office of governor to raise money during a legislative session and also to allow legislators who are running for the legislature to raise money during a "special session" if it's within 90 days of the election when they're running. Number 0179 Mr. Brown concluded, "If this amendment doesn't pass, and also if the bill doesn't pass, none of you will be able to raise money during a special session that's held this coming election." Page 2, line 6, through page 4, line 29: Delete all material and insert: (d) A candidate or an individual who has filed with the commission the document necessary to permit that individual to incur election-related expenses under AS 15.13.100 for election or reelection to the state legislature may not solicit or accept a contribution while [IF] the legislature is convened in a regular or special legislative session unless [, AND] the solicitation or acceptance occurs during the 90 days immediately preceding an election in which the candidate or individual is a candidate [MEMBER OF THE LEGISLATURE, OR EMPLOYED AS A MEMBER OF THE LEGISLATOR'S STAFF OR AS A MEMBER OF THE STAFF OF A LEGISLATIVE COMMITTEE]. *Sec.3. AS 15.13.074(c) is amended to read: (c) a person or group may not make a contribution (1) to a candidate for governor or lieutenant governor or an individual who files with the commission the document necessary to permit that individual to incur certain election- related expenses as authorized by AS 15.13.100 for governor or lieutenant governor, [WHEN THE OFFICE IS TO BE FILLED AT A GENERAL ELECTION,] before the later of the following dates: (A) the date the individual (i) becomes a candidate; or (ii) files with the commission the document necessary to permit the individual to incur certain election-related expenses as authorized by AS 15.13.100; or (B) January 1 of the year of the [GENERAL] election when the office is to be filled at a general election or the date of the proclamation when the office is to be filled at a special election; (2) to a candidate for the state legislature or an individual who files with the commission the document necessary to permit that individual to incur certain election-related expenses as authorized by AS 15.13.100 for the state legislature [. WHEN THE OFFICE IS TO BE FILLED AT A GENERAL ELECTION.] while the legislature is convened in a regular or special legislative session, unless the contribution is made during the 90 days immediately preceding an election in which the candidate or individual is a candidate, or [AND] before the later of the following dates: (A) the date the individual (i) becomes a candidate; or (ii) files with the commission the document necessary to permit the individual to incur certain election-related expenses as authorized by AS 15.13.100; or (B) January 1 of the year of the [GENERAL] election; (3) to a candidate or an individual who files with the commission the document necessary to permit that individual to incur certain election-related expenses as authorized by AS 15.13.100 for an office that is to be filled at a [SPECIAL ELECTION OR] municipal election before the later of the following dates: (A) the date the individual (i) becomes a candidate; or (ii) files with the commission the document necessary to permit that individual to incur certain election-related expenses as authorized by AS 15.13.100: (B) the date that is nine months before the date of the [GENERAL OR REGULAR] municipal election [OR THAT IS BEFORE THE DATE OF THE PROCLAMATION OF THE SPECIAL ELECTION AT WHICH THE CANDIDATE OR INDIVIDUAL SEEKS ELECTION TO PUBLIC OFFICE]; or (4) to any candidate later than the 45th day (A) after the date of a primary election if the candidate (i) has been nominated at the primary election or is running as a write-in candidate; and (ii) is not opposed at the general election; (B) after the date of the primary election if the candidate was not nominated at the primary election; or (C) after the date of the general election, or after the date of a municipal runoff election, if the candidate was opposed at the general municipal, or municipal runoff election. Number 0183 CHAIR JAMES asked what is the effective date. MR. BROWN replied it is set up to become effective immediately - if you look at the final sections of the proposed House Committee Substitute. REPRESENTATIVE BERKOWITZ stated, "It was my understanding that we could raise funds in a special session if it was within 90 days prior to an election." MR. BROWN replied he does not believe that exemption is in law and he knows it's not included in SB 105. The reason is because of the changes that were affected in SB 275. Number 0192 REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment L.5. CHAIR JAMES asked if there was an objection to Amendment L.5. UNIDENTIFIED SPEAKER replied tentatively, possibly. Number 0195 SUZIE BARNETT, Professional Assistant, Legislative Ethics Committee, asked (on the net affect, when we make these changes) what happens to legislative staff because they pulled out and we get a new designation in here of legislators, can legislative staff now raise money during sessions or not. CHAIR JAMES said she thinks the way the law is written no challengers or no one can raise money during a legislative session. Only in a special session when it's within 90 days of the election. MR. BROWN added, "It would already still be illegal in the legislative ethics law for staff to be candidates or to raise money to solicit or accept..." CHAIR JAMES stated staff would have to quit before they file. Number 0206 CHAIR JAMES asked if the objection was maintained. REPRESENTATIVE BERKOWITZ referred to Section (3), page 2, a person may not make a contribution "to a candidate or an individual who files with the commission the document necessary to permit that individual to incur certain election-related expenses as authorized by AS 15.13.100 for an office that is to be filled at a municipal election before the later of the following dates": MR. BROWN explained that's when the clock starts ticking to when you can make your donations and it's nine months. That's the provision of the Campaign Finance Act passed to supersede the voters' initiative. The importance there, for those who might run for a municipal office in Anchorage, is that nine months is that half of the nine months is going to run through the legislative session. REPRESENTATIVE BERKOWITZ indicated he is not anxious to see them to be able to raise funds during a legislative session. MR. BROWN concluded they won't until the 90 days kicks in, but it would be unfair not to give them 90 days if you're giving yourself 90 days... Number 0219 REPRESENTATIVE BERKOWITZ said he wanted to ensure that a legislator running for a municipal office is limited by the requirements of the restrictions of the office sought, not the office held. MR. BROWN replied, "Yes, that's the effect (indisc.) in SB 275 and this goes through this bill and conforms its changes to the rest of the statute..." REPRESENTATIVE BERKOWITZ stressed, "I just want to be real clear that we accept this change, understanding that there are some serious risks that the public is going to perceive impropriety with legislators who seek money - and runs for other offices. I just want to be clear on that, it's more of a caveat to people who are raising funds particularly other offices." Number 0230 REPRESENTATIVE ELTON said, "Ben [ Mr. Brown], let me make sure I understand the effects of this, you're deleting a lot of language and it seems to me that some of the language which you're deleting includes language on page 3, lines 14 and 15, which was a House change that allows candidates to begin raising money on June 1 of the year before an election. You're not putting that provision back in this language - if that's the case I applaud you, thank you very much. So this maintains the prohibition on fund-raising in off years." MR. BROWN replied yes it does. Number 0236 CHAIR JAMES asked if the objection is maintained on Amendment L.5. There being none, Amendment L.5 was adopted. Number 0237 MR. BROWN said, as he mentioned before, unless there's someone on the committee who wants to reinstate the ban on spousal lobbying they don't need to consider Amendment L.6. He said he would make sure it's available to the members of the Finance Committee. Number 0239 REPRESENTATIVE HODGINS made a motion to move Amendment LS0074\L.8, Cramer, 4/8/98, by Representative Ryan (because he has another meeting scheduled). Page 37, following line 19: Insert a new bill section to read: *Sec.63. AS 24.60 is amended by adding a new section to read: Sec.24.60.975. Liability for fling a frivolous legislative ethics complaint. A person who files a complaint against a legislator under AS 24.60.170 and that the complaint is frivolous or that the committee lacks jurisdiction to consider it is liable to the subject of the complaint if the complaint is dismissed under AS 24.60.170(c) as frivolous or because the committee's lack of jurisdiction is apparent on the face of the complaint. The subject of the complaint may recover the greater of actual damages or $5,000 from the person who filed the complaint. REPRESENTATIVE HODGINS offered a proposed amendment by deleting the word "the" so it now reads "and that complaint is frivolous." CHAIR JAMES suggested deleting the word "that" and leaving the word "the." REPRESENTATIVE HODGINS agreed. Number 0251 REPRESENTATIVE BERKOWITZ objected for purposes of discussion. Number 0255 CHAIR JAMES asked if there was objection to the amendment to the amendment [Amendment L.5]. There being none, it was adopted. REPRESENTATIVE BERKOWITZ asked Ms. Barnett how is a determination made that a complaint is frivolous. MS. BARNETT noted she didn't have a copy of the amendment. [Being faxed]. She said, "We're not actually allowed to do that yet, so I guess this amendment addresses that - part of the bill that talks about us being able to do that." REPRESENTATIVE BERKOWITZ suggested Representative Hodgins withdraw the amendment until such time is appropriate to discuss it. REPRESENTATIVE HODGINS said he would just as soon keep the amendment in. Number 0264 CHAIR JAMES suggested they leave it in and address "frivolous" before they move the bill. REPRESENTATIVE BERKOWITZ replied he thinks they're putting the cart before the horse if they do that - we've done it before. REPRESENTATIVE ELTON said, "The thing that bothers me about this amendment, is that I think that there are a lot of people that - this is like throwing cold water on some people. There are a lot of people that may be precluded from even approaching the ethics committee if, in fact they don't know what frivolous means. It's one thing to have the committee to determine it, and I think the committee is good, and I think the committee probably can make a determination, but I have a feeling that with this law, there's going to be a lot of people that won't even approach the committee because they don't know what frivolous means." CHAIR JAMES said she believes everybody knows what frivolous means. Number 0274 REPRESENTATIVE BERKOWITZ said unfortunately, that kind of clarity doesn't exist in the law and there are reams of cases discussing whether an issue is frivolous or not. There is a possibility of determining, with greater clarity, what it is. He indicated there's a bill that went through the Judiciary Committee where they talked about the standards in Civil Rule 11, for the first time in legislation there was a description of what constituted frivolous. CHAIR JAMES said she thought they could borrow it, but they didn't have it before them. She suggested they deal with that later. Chair James asked for a vote. REPRESENTATIVE BERKOWITZ said he didn't want to be in a position of denying the chair a quorum, but he didn't think there was enough time to vote on this issue - he is not prepared to vote. REPRESENTATIVE ELTON jokingly said to Representative Berkowitz, "If you pour me a cup of coffee I'll go with you." Number 0288 MR. BROWN explained they are putting in the ability of the committee to determine if a complaint is frivolous. There isn't a definition in the bill as yet, so that's very much a valuable question. It's going to become much more important for there to be a definition if there's going to be a penalty attached than if it's merely an action that the committee can take to dismiss. MS. BARNETT said she thinks the [ethics] committee would like the opportunity for complaints that appear frivolous - how you drive, or with purple hair - to not have to spend time and money on them. But when you put a fine on it, we may be talking about people who lack the mental capability at times to understand the law, and to determine if something is within the ethics code, if it's frivolous or not. You would be fining some people whom she didn't think they intend this for. CHAIR JAMES said it doesn't say that the ethics committee is going to impose a penalty, it says that there has to be a case. She thinks they can sue and get up to $5,000 or their actual damages whichever is the higher. MS. BARNETT stated so they would sue in court. Number 0309 CHAIR JAMES replied that's what it looks like to her, it doesn't say anything about it being a fine. It look like they'll have to file a case against them for that. She doesn't know that it's necessarily up to the Legislative Ethics Committee to determine for sure that it's frivolous. It reads: The subject of the complaint may recover the greater of actual damages or $5,000 from the person who filed the complaint. MS. BARNETT said Chair James is right, it isn't the ethics committee setting any fines or recommending any fines. She concluded that she doesn't know who finds it to be frivolous then. CHAIR JAMES stressed that it would have to be determined in a hearing of some sort. Number 0315 REPRESENTATIVE HODGINS asked Representative Berkowitz, "In the court function, this would obviously go to court, what kind of discovery must there be made to establish frivolous. That's not a new word for the court, so it must already be decided. I don't think we need to identify what frivolous means in this because it will be the court that will decide." REPRESENTATIVE BERKOWITZ said his read on the way this is written right now is that might wind up being the ethics committee determining whether a complaint is frivolous, and Ms. Barnett said she didn't think it was that. CHAIR JAMES asked isn't there some place in this piece of legislation that indicates that if it is frivolous they can send it back. Currently they have to review every case, this way it gives them the chance to send it back if it appears to be frivolous. Number 0322 MR. BROWN referred to page 29, lines 13 to 17: If the committee determines that the allegations, if proven, would not give rise to a violation, that the complaint is frivolous on its face, that there is insufficient credible information that can be uncovered to warrant further investigation by the committee, or that [IF] the committee's lack of jurisdiction is apparent on the face of the complaint, the committee shall dismiss the complaint[,] and shall notify the complainant and the subject of the complaint of the dismissal. REPRESENTATIVE BERKOWITZ stressed if the committee determines, if it's frivolous, then there's no action pursuit. He asked Ms. Barnett if this was right. MS. BARNETT replied that would be correct, there would not be any money spent or action. REPRESENTATIVE BERKOWITZ stated, "Then it's gone, so there's no damages. If you get something that's frivolous on its face, the legislature never sees it really until it's gone." Number 0329 MS. BARNETT responded the "legislator" would see it, the subject of the complaint always sees a complaint. She assumed even under the frivolous category. REPRESENTATIVE BERKOWITZ remarked someone said they didn't like Representative Berkowitz' tie for example, you [Ms. Barnett] said this was a frivolous complaint but you let me know about it. MS. BARNETT replied correct. REPRESENTATIVE BERKOWITZ said I have not suffered any actual damages. MS. BARNETT said that would be her take. REPRESENTATIVE BERKOWITZ said what we're doing is really just talking about the sleeves in someone's vest, it's really not an issue. Number 0334 CHAIR JAMES referred to Amendment L.8, line 10 [beginning on line 9] which says "The subject of the complaint may recover the greater of actual damages or $5,000..." If there aren't any damages they still could get $5,000, but it doesn't tell her that they're going to get that without going to court. The only evidence that they would have would be the complaint that was filed, the subject of this complaint also gets a notice of that, and quite frankly the newspaper will have notice of it, she can't imagine anybody filing a frivolous ethics complaint and not having anybody know about it. Chair James concluded she doesn't necessarily think the ethics committee has to necessarily determine that. If they do determine one that's frivolous and it ends up going to court, and it wasn't, then there might be a problem with the ethics committee not having done their job well. REPRESENTATIVE ELTON said he didn't think there's anything that precludes a person from pursuing a civil action now on a frivolous claim that's either liable or slanderous. He said they may just be restating something that's already out there, if in fact this requires no action by the Legislative Ethics Committee. CHAIR JAMES mentioned, "I (indisc.) those same people who Representative Berkowitz says doesn't seem to know what's frivolous might see and that was his concern that we're going to deter people from filing complaints. If that's the intent, then this might do that." Number 0353 REPRESENTATIVE ELTON mentioned that was his point. He indicated there are a lot of people who see the world differently then they do, there are a lot of people in the body that see the world differently. Just because they do, it doesn't mean that their view is frivolous. REPRESENTATIVE BERKOWITZ said, "What we're really striking at here is not frivolous law suits, what we're striking at here is abuse of process. If there were an amendment that addressed the abuse of process, where people were attempting to use the ethics complaint as a 'sword' instead of a 'shield,' then I would be more receptive to it." CHAIR JAMES announced they are going to leave Amendment L.8 on the table.
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