Legislature(1997 - 1998)
03/13/1997 03:40 PM Senate STA
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
SB 105 LEGISLATIVE ETHICS CODE REFORM
CHAIRMAN GREEN brought SB 105 back before the committee and stated
the committee would continue with the overview on the legislation
beginning with Section 32 at the bottom of page 16.
JOE DONAHUE , a public member of the Select Committee on Legislative
Ethics participating in the meeting via teleconference from
Anchorage, presented the following overview, as well as responding
to questions from comittee members.
SECTION 32. This section relates to advisory opinions. The
proposed lnguage in this section allows the committee to issue an
advisory opinion to a person who anticipates becoming a legislative
employee, 45 days prior to employment. It also allows the
committee 60 days to respond instead of 30 days. Mr. Donahue said
the cost of getting together and also trying to get legal advice in
the 30 days has been quite difficult. Subsection (b) contains
language to restrict attendance by a person who requested an
opinion, including a legislator, during deliberations in the
executive session on the advisory opinion. He added that it is the
way the committee has been operating, but it wasn't absolutely
clear in the statute.
SECTION 33. Current law requires the committee to process
complaints, even if against all the members of the legislature or
all members of one house, etc., -- things like that that are
blanket and would take a lot more collusion than would be a normal
situation. This section makes it clear that the committee wouldn't
have to do anything with those kind of complaints and can return
them to the complainant. It also allows the committee to reinstate
a complaint if an employee, who has terminated, is rehired or if a
legislator, who has left the legislature, is reelected in less than
five years. It makes it clear in terms of the five-year moratorium
on going back and looking at potential violations.
SECTION 34. The new language clarifies that the complainant must
sign a statement that says that they have reason to believe that a
violation has occurred and that the person who files it may be
called to testify, as well as placing the responsibility on the
committee to notify the complainant. Mr. Donahue noted the form
the complainant signs already has such a statement, but it isn't
clear in the law that was the situation. He added that this is a
partial response to some of the complaints the committee has had
from legislators and others that there is no strings on the person
who files the complaint.
CHAIRMAN GREEN asked if there has previously been anonymous
complaints. MR. DONAHUE acknowledged there have been, but unless
they are signed and sworn to, the committee doesn't deal with them.
SENATOR MACKIE voiced his agreement with the proposed language
because it strengthens the provision and cuts down on a lot of
frivolous, politically motivated type of activity that the
committee does not want to deal with.
SECTION 35. This section relates to a preliminary exam and
dismissal if there is absolutely no merit. Mr. Donahue said they
have had cases in the past where, based on either a quick
investigation of the written record or something submitted by the
subject of the complaint, or even by the materials in the complaint
itself that there was really not going to be a need for an
investigation, but there might be a need for some preliminary or
follow-up investigation for clarity. He noted Ms. Barnett, staff
to the committee, has been allowed to do some of that under the
direction of the chair, but it hasn't been clear that that
preliminary investigation could take place.
SECTION 36. This section clarifies that the deliberations, the
vote on the dismissal order and the decision on a finding of lack
of probable cause can take place and will take place in the
confidential executive session.
CHAIRMAN GREEN asked if there is a time frame in the process set
out for the committee for a specific action on a complaint. MR.
DONAHUE answered there isn't a time frame in the statute, although
in the past, they have tried to move forward with them as fast as
possible.
CHAIRMAN GREEN inquired if there is a penalty for an individual who
makes a frivolous complaint. MR. DONAHUE replied there isn't a
provision for a frivolous complaint, but there is a provision for
a fraudulent complaint, which is very different from frivolous.
SECTION 37. This section clarifies the procedures if after a
finding of probable cause and corrective action, the individual
agrees to do the corrective action and then later doesn't. It
provides a mechanism where it would could come back to the
committee and the committee could go forward with the formal
charge. Otherwise, without this, there is a question of the
committee retaining any jurisdiction.
TAPE 97-11, SIDE B
Number 572
SECTION 39. This section relates to discovery. Mr. Donahue said
the way it is currently written in statute, it's somewhat confusing
as to when discovery takes place. The committee has interpreted it
as discovery taking place after probable cause has been determined
and has not generally allowed discovery prior to probable cause
with a limited exception. This would clear that up and permit the
committee to adopt procedures to let it allow discovery earlier in
the stages, as well as putting restrictions on how much discovery
that would be. He noted it also changes subsection (b) to
subsection (h).
SECTION 40. This section relates to attendance at executive
sessions and the waiver of confidentiality. The proposed language
clarifies that all the meetings of the Ethics Committee concerning
an individual complaint that are closed to the public, i.e. the
confidential deliberations, are also closed to the legislators
unless they are a committee member. As has been the committee's
practice, it allows the committee to call in the subject of the
complaint and give the opportunity to present their side of the
story or to talk to committee, but they would not stay in for the
deliberative process itself.
SECTION 41. This section requires the committee to put a timetable
on when someone must finish whatever corrective action and whatever
sanctions the committee recommend to the Legislature. Mr. Donahue
said the statute was silent on this, and the committee had bad
experiences of failing to place any deadlines. This will make it
statutory that there be deadlines and it will allow fines if they
are met.
SECTION 42. This section is an additional timetable for after the
Ethics Committee makes a recommendation for sanctions to the
Legislature. It is requiring the legislators to let the committee
know what timetable they agreed to so that if it has to come back
to the Ethics Committee for failure to comply, then they will know
where they are. Mr. Donahue advised that the current law is
totally silent on any deadlines for sanctions or corrective
actions.
SECTION 43. This section relates to recommendations where the
violator is a legislative employee. The current code says that the
recommendation is to go to the appointing authority, and the
proposed language clarifies who the appointing authority is in each
instance, and the companion SECTION 44 will define the appointing
authority. Mr. Donahue said this is to let legislators be the
supervisor of their legislative employees, but in Legislative
Budget & Audit, that director is the supervisor, and that who the
corrective actions or the recommended actions would go to in each
case.
SECITON 45. This section relates to recommended sanctions. The
current law is totally silent as to what kinds of sanctions there
might be. Mr. Donahue said the committee, in its deliberations
without breaching any confidentiality, went to a lot of creative
brainstorming to come up with sanctions. This would give at least
some idea to both the public, the potential subject of the
complaint and the committee and its members of some of the kinds of
the sanctions that might be available. Some of these sanctions
would also include fines.
SECTION 46. This section relates to financial disclosure by
legislators, legislative directors, public members of the
committee, and certain legislative employee. Mr. Donahue pointed
out that under the current law legislators and legislative
directors are required to annually file the financial disclosure
statement with APOC, but the employees are not, and this will
require that employees who are at Range 19 and above who are
handling a lot of constituent dealings and have more responsibility
to file the statement. He noted the old legislative ethics bill
that was in place before 1993 had a similar provision for Range 19
and above.
Number 512
BEN BROWN , staff to Senator Tim Kelly, pointed out that Section 46
is the provision that created the fiscal note and the fiscal impact
in the bill because APOC will have to employ additional staff to
handle the disclosures from the Range 19 employees and above. MR.
DONAHUE noted that the concept of adding the Range 19 employees is
added to the next three sections of the bill.
CHAIRMAN GREEN asked if the bill contains a definition for "certain
legislative employees." TERRY CRAMER , Legislative Legal Counsel,
Legislative Affairs Agency, directed attention to Section 53,
paragraph (15) which defines "legislative employee who is required
to disclose." She added that the old ethics law did not apply to
employees who were compensated below Range 18, so far as she knows
there has never been a requirement that "run of the mill"
legislative employees filed financial disclosure statements, so
this is new in that respect. Singling out employees paid at a
higher range has been done in the past.
Number 485
SENATOR MACKIE asked if this would apply to anyone that works for
any branch of the Legislature that is a Range 19 and above, and MS.
CRAMER answered that it would. MR. BROWN said in the fiscal note
it is estimated that this provision will add 192 new filers every
year and then a turnover of about 20 filers a year.
SECTION 47. This section relates to deadlines for filing of
disclosure statements and it adds the Range 19 and above employees
to the reporting deadline, as well as changing the deadline from
April 15 to February 15. Mr. Donahue said this is part of an
effort to make all of the reporting dates the same time period and
earlier in the legislative session so anyone who wants to review
what has been filed will have a chance to do so before the session
is over.
SECTION 48. This section provides for a penalty for late filing.
Mr. Donahue said that currently there is no penalty for a late
filing. A fine makes more sense than finding the individual in
violation of the statute and then trying to figure out a sanction
for it.
MS. CRAMER clarified that Section 48 relates to filing financial
disclosure statements. The more general penalty for not filing
disclosure statements to the Ethics Committee is found at Section
51.
SECTION 49. This section adds the Range 19 and above employees and
the public members of the Ethics Committee to those who would
forfeiture nominations to their office if they failed to file.
SECTION 50. This section would allow a person to file a late
disclosure, but the individual would be subject to a fine or to
having a complaint filed against them, in theory.
SECTION 51. This section permits the Ethics Committee to impose
fines for late disclosures and give a price range not to exceed
$2.00 per day to a maximum of $100 for each disclosure. If the
committee finds that the late filing was inadvertent, the maximum
fine is $25.
MR. DONAHUE expressed concern that by using the term "inadvertent"
it may be opening up a gray area because it means somebody has got
to determine what's inadvertent and what's not. SENATOR PEARCE
recommended leaving out the "inadvertent" language, and, if the
committee decided the higher fine wasn't necessary, it could then
impose a lower fine; the committee would still have the latitude.
Number 387
SENATOR MACKIE moved as Amendment No. 1, on page 26, beginning on
line 18, delete the sentence "However, if the committee finds that
a late filing was inadvertent, the maximum fine the committed may
impose under this subsection is $25." Hearing no objection, the
Chairman stated the amendment was adopted.
SECTION 52. This section makes a change to the definition of
"immediate family" and it applies back to the contracts on leases
section and the section on nepotism. These changes conform with
24.60.080(g) of this same bill.
Number 368
SENATOR PEARCE asked if the family definitions are consistent
throughout the ethics bill so that disclosure requirements are the
same as gift requirements. MS. CRAMER responded they are not, and
she thinks it is a deliberate choice on the part of the previous
Legislature that considered this bill. The definition of family
member is more inclusive in the gift area. But for the kinds of
financial relationships that would be coming up in a contract area
or a nepotism area, it's a more limited definition of family so
that the prohibitions that those sections impose are applied to a
more limited group of people. SENATOR MACKIE noted there are a
number of different areas in the bill relating to family, and he
suggested double checking to see that there is some consistency in
the definition of family for disclosure, gifts, reporting or
wherever it is applied. MS. CRAMER said she would check to be sure
how family member is used in the bill and in existing statute.
SECTION 53. Mr. Donahue said this section adds the Range 19
employees and the public members of the committee to those that are
required to file the financial report to the Alaska Public Offices
Commission, as well as adding "spousal equivalent" to the list of
those whose income must be reported.
SECTION 54. This section provides an effective date of January 1,
1998.
SENATOR MACKIE suggested it would be less confusing for the
committee members if any additional amendments to the bill be dealt
with individually before adopting a final committee substitute.
Number 208
CHAIRMAN GREEN thanked Mr. Donahue for his participation in the
meeting before adjourning the committee at 5:05 p.m.
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