Legislature(1997 - 1998)
03/11/1997 03:40 PM Senate 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 LEGISLATIVE ETHICS CODE REFORM
BEN BROWN , staff to Senator Tim Kelly, chairman of the Senate Rules
Committee, gave the following overview of SB 105. SB 105 was
introduced by request of the Select Committee on Legislative Ethics
and represents the purest consensus that could be arrived at by
that committee. Since the Legislature enacted the Legislative
Ethics Code four years ago, oversights in the Code have become
apparent. A few subsequent changes, as well as a few housekeeping
changes, are necessary to improve the law, and protect the public,
legislature, and others involved in the political process from
misuses and to ensure it is applied in a realistic, meaningful way.
SENATOR DRUE PEARCE , a member of the Legislative Ethics Committee,
gave a brief history of ethics legislation. The ethics committee
began drafting legislation in 1994; a bill was introduced in both
the House and Senate in 1995. The Senate State Affairs Committee,
chaired by Senator Sharp, heard the bill once in 1995, and several
times in 1996. Senator Donley recommended many of the amendments
made to the bill in that committee. The Senate Rules Committee
then substantially amended the bill to include the Executive Branch
and the bill passed the Senate 17 to 3. House Finance heard the
bill in the final week of session and adopted several amendments.
A few members of that committee recommended rewriting the section
dealing with the Executive Branch to eliminate any overlap and
other identified problems. The bill was held over on the last
night of the regular session and did not receive a hearing. Part
of the controversy centered on the provision disallowing spouses of
legislators from lobbying. SB 105 is the product of a subcommittee
of the Legislative Ethics Committee that worked during the interim
in 1996 to revise the measure. The Executive Branch section has
been deleted because that is not within the purview of the
Legislative Ethics Committee. In addition, the bill contains many
housekeeping provisions.
Number 130
CHAIRMAN GREEN asked Senator Pearce to provide an overview of the
provisions in the bill.
SENATOR PEARCE referred the committee to a memo from Susie Barnett,
staff to the Select Committee on Legislative Ethics, dated February
28, 1997, and explained the sections of SB 105 as follows.
Section 1 has been in the bill since 1994, and grants the ethics
committee subpoena powers. It amends the statute that sets out
general authority for subpoena power to the ethics committee,
Legislative Council, and Legislative Budget and Audit Committee by
removing the requirement that the Senate President or Speaker of
the House concur with the ethics committee before it can issue a
subpoena. The other two committees were exempted from that
requirement and the ethics committee believes its exclusion from
that exemption was an oversight.
Section 2 allows legislators to store and maintain campaign
records, such as APOC reports, in legislative offices, provided the
records are not displayed publically. A strict reading of the
current statute prohibits keeping any APOC records in legislative
offices. The ethics committee has made a liberal reading of the
current statute and has requested this change.
Section 3 expands the prohibition against the use of state funds
for printing or distributing mass mailings from, or about, a
legislator who is a candidate for state office to legislators and
legislative employees who are candidates for federal or municipal
offices, and to candidates for telephone or electrical
cooperatives. Senator Pearce explained if a legislator entered the
Anchorage mayoral race, he/she would not be able to use state funds
to send a mass mailing during the 90 days prior to the election.
Number 199
Section 4 adds fundraising notices to the list of prohibitions on
distributing or posting campaign literature in state facilities.
Section 5 increases the disclosure period for appointment to a
board from 30 to 60 days, and requires the ethics committee to
publish the disclosures in the journal.
Section 6 changes the prohibition on taking legislative,
administrative, or political action to a disclosure requirement
prior to taking action if one has any of the following interests
listed in the amendment: equity or ownership interest, an
employment interest, an interest in a contract, or an interest
created by board membership. It also sets out that the disclosure
is to be publically announced if the action taken is during a
committee meeting or on the floor.
SENATOR PEARCE said the discussion on this section focussed on the
fact that if one can take action that could create a personal gain
by disclosing a conflict of interest, the disclosure should be
informative as to what the conflict is. Disclosures must reveal
the nature of one's financial interest and a short description of
how the action might affect that interest. She noted many
legislators already disclose conflicts of interest at the committee
level; Section 6 requires that disclosure.
Section 7 adds a new subsection that requires the ethics committee,
when determining whether an employee was performing a task on
government time, to consider the employee's work schedule set by
the employee's supervisor. It requires an employee to take leave
time for periods he or she is engaged in campaign activities.
Campaign activities are permissible on government time if those
activities are part of the normal legislative duties, including
answering phone calls and handling incoming correspondence.
SENATOR PEARCE commented legislative members of the ethics
committee pointed out to the committee there is no way to stop mail
from coming, some of which is campaign related, nor can one stop
all incoming phone calls on campaign related matters, especially
during the campaign season.
Section 8 clarifies restrictions on fundraising activities. Funds
can not be raised while either house is in regular or special
session. The proposed language removes the phrase "campaign
purposes" to clarify this restriction is limited to state
legislative political purposes. SENATOR PEARCE explained two years
ago some legislators received campaign contributions before session
began, but did not deposit those checks until after session
started. The ethics committee advised those legislators to refund
the contributions. Section 8 clarifies the cut-off time for
receipt of contributions and was in last year's bill.
Number 266
SENATOR MACKIE asked if the restriction is in effect from gavel to
gavel of the 120 day session.
MS. TERRY CRAMER , Division of Legal Services, Legislative Affairs
Agency, answered the time period would begin on midnight of the day
of the first gavel to midnight on the day of the last gavel of the
120 day session.
SENATOR PEARCE clarified a legislator cannot hold a fundraising
breakfast on the day session begins, nor on the day of adjournment.
SENATOR MACKIE questioned whether removal of the phrase "campaign
purposes or to raise money for" would allow a person running for
a municipal race to raise money during the legislative session,
whereas that activity is prohibited now. MS. CRAMER said the
change allows for fundraising for elections other than state
legislative races. SENATOR MACKIE confirmed a legislator, under
current law, cannot do any fundraising for a municipal or
legislative race right now.
Number 300
SENATOR WARD asked whether a sitting legislator could sponsor a
fundraiser in Juneau for a mayoral candidate.
SUSIE BARNETT, professional assistant to the Select Committee on
Legislative Ethics, explained Section 8 pertains to accepting money
from an event held during the legislative session and advised a
legislator could sponsor a fundraiser for a mayoral candidate. MR.
CRAMER added soliciting is covered in Section 8(a)(1) and limits
the prohibition to state legislative campaigns so a legislator may
solicit funds for another, as long as the candidate is not running
for a legislative seat.
SENATOR MACKIE asked whether there is another section of the Ethics
Act that prohibits a legislator from soliciting funds for another
candidate. MS. CRAMER read AS 24.60.031 (a)(1) and interpreted
existing language to mean a legislator cannot solicit or accept
funds for any state legislative campaign, whether their own or not.
SENATOR MACKIE affirmed that the absence of any reference to
mayoral or gubernatorial races means funds could be raised for
those races. MS. CRAMER thought that was correct.
Number 334
SENATOR DUNCAN commented he was informed, through an informal
advisory opinion from the Ethics Committee, that he, as a sitting
legislator, could not hold a fundraiser for a non-legislator. The
reasoning was that as a sitting legislator, he might influence who
would attend and contribute. MS. BARNETT explained that issue was
different because the contributions the Senator would have been
soliciting would have been gifts, not campaign contributions.
SENATOR DUNCAN clarified it would have been okay had Fred Zharoff
filed to run for Mayor of Anchorage, but not for other reasons.
SENATOR PEARCE said Senator Lincoln was able to hold fundraisers
during last session when she was running for a congressional seat
because of the federal preemption. Current language in the Ethics
Code prohibits fundraising for campaign purposes, and although
federal campaigns are preempted, the current prohibition still
applies to mayoral and gubernatorial races.
Number 360
SENATOR DUNCAN questioned why a Representative who ran for
Lieutenant Governor was able to raise money during a session two or
three years ago. MS. BARNETT replied that person was not allowed
to accept money from events being held during sessions, but was
allowed to accept money from political mailings.
SENATOR MACKIE believed another section of the Ethics Code
specifically pertains to statewide offices, and the change in SB
105 is specific to legislative seats.
CHAIRMAN GREEN asked whether any of the provisions in the campaign
finance reform law that passed last year overlay SB 105 and create
greater prohibitions.
SENATOR PEARCE said no legislator can raise money this year for a
legislative race but those legislators who are up for re-election
next year will be able to raise money during restricted time
periods. Under the new campaign finance reform law, mayoral
candidates can raise money for 90 or 120 days prior to the
election. She thought, but was not sure, legislators can start
raising money after session is over.
SENATOR PEARCE said fixing some of the inequities and
contradictions in the Ethics Code so that Alaskans feel complaints
are dealt with fairly will hopefully keep the Legislature from
finding itself faced with the same situation created by the
initiative for campaign finance reform. She thought an initiative
ethics bill would be much more difficult to live with than a bill
drafted by the Legislature. She cautioned if legislative action is
not taken, it is possible an initiative will be filed.
SENATOR MACKIE commented he served on the ethics committee for the
past four years, and the bill provisions can be interpreted in
different ways by different people because it was put together in
hastily. The bill dealt with a lot of necessary changes under the
Ethics Code, but the actual application of some provisions became
very confusing. The ethics committee spent a lot of time reviewing
sections to come to a consensus about what those sections meant.
He believed it is very important to clarify exactly what the
sections mean for the committee's and public's benefit.
Number 422
CHAIRMAN GREEN stated her goal is to complete the sectional
analysis of SB 105 today, then allow a short amount of time for
anyone interested to prepare and submit amendments, but not to
spend a lot of time rehashing the same conversations.
SENATOR PEARCE explained Section 9 gives the ethics committee the
right to refer an employment discrimination complaint directly to
the Human Rights Commission (HRC) and to defer any consideration
until that proceeding is completed to prevent two proceedings from
occurring simultaneously.
CHAIRMAN GREEN asked if the complainant can file a lawsuit after
those proceedings. MS. CRAMER said yes. SENATOR PEARCE explained
if the HRC finds that a legislative employer has committed a
violation, it would make recommendations to the ethics committee.
The HRC does not have the power of enforcement against a
legislator. She added the last employment discrimination case
filed against a legislator was handled by the Legislative Council
because both the legislator left office and the employee left the
job.
Number 458
SENATOR PEARCE continued with the sectional analysis. Section 10
broadens the contract and lease requirement beyond the current
code. The new language allows participation in contracts or
leases that are let under AS 36.30 (Procurement Code), including
sole source awards, and applies to contracts with other agencies
such as the Alaska Railroad Corporation and University of Alaska.
The new language increases the reporting threshold from $1,000 to
$5,000 and eases the family member disclosure requirement.
SENATOR MACKIE questioned whether the family member disclosure
requirement would apply to immediate family members only. SENATOR
PEARCE said it only applies to immediate family members.
Section 11 clarifies that a grant, contract, or lease, issued under
AS 24.60.050, is not subject to the requirement in Section 10.
Section 12 allows the ethics committee to protect an individual's
right to privacy concerning participation in state loan or benefit
programs regarding disclosure. Section 12 follows a 1994 advisory
opinion issued by the ethics committee explaining why it chose not
to publish the name of a person who received a benefit from the
Violent Crimes Compensation Committee. The ethics committee did
disclose that a person covered under the ethics code did receive a
benefit, but did not disclose the name. Section 12 codifies
previous activity.
Section 13 allows the ethics committee to broaden discovery while
still protecting any innocent or non-involved parties. Allegations
have been made in which people who were not part of the actual
complaint had to become involved. Section 13 would protect the
privacy of those people. The subject of the complaint would have
access to that information but could not release it if a protective
order was issued.
Section 14 establishes a February 15 disclosure deadline for
existing close economic associations, and a 60 day disclosure
requirement for new close economic associations. These disclosure
deadlines are consistent with other disclosure requirements in SB
105.
Section 15 requires legislators, or legislative employees, who are
married to lobbyists, or to spousal equivalents who lobby, to
disclose the name and address of each of the lobbyist's clients and
the total monetary value received from the clients annually.
Changes to the list would have to be reported within 48 hours. The
nine-member ethics committee did not have the votes to recommend a
ban on spousal lobbying but did agree on the disclosure
requirements.
Number 523
SENATOR WARD asked for the definition of a "spousal equivalent."
MS. CRAMER answered the definition is included at the end of the
bill.
Section 16 increases the annual gift limit from $100 to $250 and
clarifies that the gifts covered under subsection (c) are excepted
from the general prohibition on accepting gifts. The gifts on
behalf of charitable organizations is a new subsection. Charitable
organizations would be exempted from prohibitions on both accepting
and soliciting gifts. Senator Pearce explained that she, as a
board member of the Alaska Special Olympics Committee, could
solicit money for that organization. Other new language restricts
legislators and legislative employees from accepting, from
lobbyists during session, anything of monetary value, other than
food or beverages for immediate consumption.
CHAIR GREEN asked if legislators can accept any gifts during
session. MS. CRAMER clarified no gifts can be accepted from
lobbyists, but subsection (c) lists those gifts that are acceptable
from others, with disclosure.
SENATOR PEARCE explained Section 17 pertains to hospitality and
allows legislators to accept incidental transportation or to stay
at the residence of a person, but not at a vacation home outside of
the state. She commented legislators would not be able to stay at
a lobbyist's home in Palm Springs for two months. Also legislators
and legislative employees would be allowed to accept discounts
while on state business if the discount benefits the state.
Number 557
SENATOR MACKIE asked whether the prohibition against hospitality at
a vacation home pertains to lobbyists' homes only. MS. CRAMER
explained it is not limited to lobbyists' homes only. SENATOR
MACKIE asked if that would apply to the home of a friend. MS.
CRAMER said subsection (6) would apply, and requires that the
hospitality not be connected to the recipient's legislative status.
SENATOR WARD asked if he could accept an invitation on
Representative Cowdery's boat for a fishing trip, which might be
valued at $2500 per day. SENATOR PEARCE said the committee
discussed whether legislators can accept gifts from other
legislators, and assumed those invitations are not for the purpose
of getting something in return. She explained if BP invites a
legislator to take a trip on one its tankers from Valdez to Long
Beach, as opposed to a trip from Valdez to the Mediterranean, the
trip could be considered acceptable because the legislator would be
learning about state business.
SENATOR DUNCAN questioned whether a legislator could accept an
invitation from a lobbyist to go out fishing on a lobbyist's boat
during session. He noted that is a common occurrence. SENATOR
PEARCE replied page 9, line 9 pertains to social events. She
explained the provision for incidental travel and hospitality
within the state was included to cover situations where a
legislator travels to rural areas of the state and stays with
friends or associates because other accommodations are not
available. She said legislators must use common sense and decide
whether the invitation is only connected to one's legislative
status.
TAPE 97-10, SIDE B
SENATOR DUNCAN asked Ms. Barnett how the fishing trip on a
lobbyist's boat would be viewed. MS. BARNETT answered one could
eliminate the invitation as a gift by contributing to the
experience, meaning if the legislator contributes gas money, or
food for the trip in an equal manner, it would not be considered a
gift. SENATOR DUNCAN asked, if the lobbyist invited five
legislators, whether they would all have to provide food or gas.
MS. BARNETT said they would have to make some contribution
otherwise it would considered a gift and would fall under the $250
limit under SB 105.
SENATOR WARD asked if he could accept an invitation from a lobbyist
to take a float plane trip to Petersburg to fish for the day. JOE
DONAHUE commented it is difficult to make on-the-spot advisory
opinions because all of the facts are not available, but he added
legislators must view such a trip from the public's perspective.
He added he cannot speak for the committee, but expressed concern
about the fact that the trip would be with a lobbyist.
SENATOR WARD repeated his question about accepting an invitation
for a plane or boat trip from another legislator. MS. BARNETT
replied those invitations would be viewed as gifts, and if the
value is over $100, under current law, one must reduce the value of
the gift, or not accept it.
SENATOR PEARCE commented some legislators' friendships began long
before they came to the legislature, and that invitations among
those legislators are not related to legislative status. MS.
BARNETT answered if Senator Ward and the other legislator could
clarify that relationship is unrelated to their legislative status
and disclose it under Section 17(c)(6), then the gift would be
acceptable.
SENATOR PEARCE noted some states have dealt with the problem of
trying to define what constitutes a gift by prohibiting legislators
from accepting anything, including a cup of coffee, from anyone.
Section 17 is an effort to create a common sense approach to one's
actions.
SENATOR MACKIE felt the gift provision needs further clarification
because legislators should not have to discard friendships or other
relationships. He noted Alaska is a small state and many
legislators have been long-time friends. He said under SB 105, a
legislator could not go fishing on a lobbyist's boat because
Section 16 only allows the legislator to accept food or beverages
for immediate consumption. Senator Mackie believed the legislation
should be specific so that a legislator does not have to wait until
a complaint is filed and then have to justify the acceptance of a
particular invitation.
Number 460
SENATOR PEARCE suggested Senator Mackie head up a subcommittee on
the issue. SENATOR MACKIE responded SB 105 goes a long way to
correct some existing problems, but the opportunity to discuss
actual scenarios has never occurred. He stated the original bill
was very poorly crafted.
SENATOR PEARCE explained Section 18 corresponds to changes made to
the previous section and raises the gift limit to $250 and requires
disclosure of the donor's name and a description of the gift.
Section 19 makes a technical change in response to the new campaign
finance reform law and allows certain contributions to small budget
campaigns to fall within the contribution definition. In that law,
small budget campaigns were exempted from the reporting
requirement; Section 19 conforms to that provision.
Section 20 allows acceptance of a gift from a foreign government,
or the U.S. or a state government, for protocol purposes, but
requires that those gifts be transferred to the legislative
council.
Section 21 defines who is considered an immediate family member,
and includes spousal equivalents.
Section 22 contains several provisions pertaining to gifts. It
permits legislators to accept gifts on behalf of charitable
organizations; and requires the reporting of an inheritance, but
not its value, from a person other than a family member. It
establishes that a gift of volunteer services may be accepted by a
legislator as a gift to the state. It also requires volunteers and
those involved in educational training to comply with the ethics
code. A nepotism extension allows family members to volunteer
their time. The proposed language in subsection (k) pertains to
gifts to family members of legislators or legislative employees, so
that if the gift was received because of the connection, it
requires disclosure. The language "or reasonably should know" in
subsection (k) is intended to relieve the burden on those covered
from researching gifts to family members whom they have little or
no contact with.
Number 397
SENATOR MACKIE asked whether subsection (k) only refers to minor
children, or children living at home, or those one has some
semblance of control over. MS. CRAMER said they do not have to be
dependent children but the gift does have to be received by a
family member because of the relationship to the legislator.
CAROL OLSON , representing herself, testified via teleconference
from Anchorage and made the following comments. Section 8 needs
greater clarification. She suggested retaining the words "during
a legislative," "either," and "campaign purposes or to raise money
for." She questioned why the phrase "through competitive sealed
bidding" was removed from Section 10 and thought its removal to be
unacceptable from the public's perspective. With regard to Section
16, she expressed concern about the large increase, from $100 to
$250, for the value of gifts. Also, public employees are barred
from accepting food or beverages for immediate consumption so there
is no reason legislators should have that ability. She felt those
who are more in need of discounts under section 17(c)(7) are
prohibited from accepting them. Regarding the question about
accepting a fishing trip on a lobbyist's boat, she felt that would
be inappropriate, despite any contribution to the trip made by the
legislator.
CHAIR GREEN clarified that state employees are not prohibited from
accepting food or beverages for immediate consumption, although
federal employees may be. MS. OLSON noted she was referring to
municipal employees who are unable to accept such gifts.
Number 294
SENATOR PEARCE explained Section 23 allows legislators and
legislative employees to accept compensation less than fees
generally charged, to allow an attorney to do pro bono work, or an
engineer to review plans, for a non-profit organization.
SENATOR PEARCE stated current law does not set reporting deadlines
for representation before a state agency. Section 24 corresponds
to other deadline changes of February 15 and 60 days for new
representation.
Section 25 sets out a reporting deadline of February 15 for
disclosures of interests in state contracts, board memberships,
close economic associations, and representation of clients.
Section 26 corrected a drafting oversight by formalizing
entitlement of the public members of the ethics committee to
receive per diem and travel compensation. The public members are
not entitled to be paid for their time in service to the committee.
Sections 27 and 28 prohibit an ethics committee member from
participating in a complaint against one who is supervised by that
member and establishes a procedure for appointment. Current law
sets out that if a member is disqualified during the legislative
session, the presiding officer must have two-thirds concurrence to
appoint another member for that proceeding. If disqualification
occurs during the interim, the presiding officer appoints a new
member with the concurrence of the House subcommittee. Involving
either body of the Legislature defeats confidentiality. Section 28
directs presiding officers to appoint alternates for two-year terms
who would serve when appointed by the committee chair.
Section 29 clarifies prohibitions of participation in political
management or in a political campaign extend to ballot initiatives
and to campaigns for federal, state and local offices, regardless
of whether the campaign is partisan or nonpartisan. A public
member, employee, or contractor of the committee may not attend a
fundraiser or make a political contribution to a political party,
legislative candidate, incumbent legislator, or legislative
employee running for another public office, or to their opponents
in legislative races.
SENATOR MACKIE asked if a committee member's spouse could
contribute or participate in a campaign. SENATOR PEARCE did not
know how the federal law worked on that issue, but did not think
the state has the authority to reach that far.
SENATOR PEARCE stated Section 30 permits a contractor with the
ethics committee to request the committee to exempt some members of
the corporation or partnership from having to comply with some or
all prohibitions against political activity. The committee has
contracted for outside legal counsel with an attorney who is part
of a large firm with branch offices outside of Alaska. A strict
reading of current law might mandate all employees of that law firm
to comply with Alaska's ethic code.
Section 31 permits the committee to adopt guidelines to implement
this chapter under a public process and provides that a person who
acted within the guidelines could not be penalized for violating
the ethics code. The current procedure of issuing advisory
opinions allows interpretations based only on the facts presented
to the requestor. Senator Pearce explained when someone asks for
an advisory opinion, the ethics committee must give an opinion
based only on the information provided. The committee feels if it
had the ability to set guidelines, based on a broad set of
circumstances, it could assist the requestor and others covered by
the code, to avoid inadvertent violations.
Number 190
SENATOR MACKIE questioned if the committee would provide those
covered with a set of guidelines and have them apply their own
circumstances, rather than issue advisory opinions. SENATOR PEARCE
replied the committee would continue to give advisory opinions but
could then adopt guidelines to apply to everyone.
SENATOR PEARCE said she was responsible for the amendments last
year which pertained to the Executive Ethics Act. She urged the
committee to adopt a code of ethics, in SB 105, for the executive
branch, that mirrors the standards in the legislative ethics law.
The current Executive Ethics Act is extremely loose, and in some
cases there is reason to believe that behavior that should be dealt
with is never reviewed by anyone. She offered to work with the
committee to provide language to amend the bill.
Number 145
CHAIR GREEN requested anyone interested in submitting draft
amendments or suggestions to provide those to committee staff.
SENATOR MACKIE said he would be interested in using language
regarding gifts, discussed in the past, from the Open Meetings Act,
that allows for participation in events that are purely social and
not connected with legislative business. He noted legislative
basketball and bowling leagues exist, as well as other
circumstances, that should be discussed.
CHAIR GREEN announced SB 105 would be heard again on Thursday,
March 13. There being no further business, the meeting was
adjourned at 5:09 p.m.
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