Legislature(1995 - 1996)
05/03/1996 03:30 PM House FIN
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE BILL NO. 141
"An Act relating to legislative ethics; and providing
for an effective date."
JOHN GAGUINE, ASSISTANT ATTORNEY GENERAL commented on
sections which require individuals to file conflict of
interest statements under AS 39.50. He noted that there are
currently approximately 600 - 800 high level employees and
boards and commission members that have to file conflict of
interest statements. The legislation would expand this
number to another 450 - 500 state employees, including a
large number of employees not in policy making positions.
He noted that psychiatrists at the Alaska Psychiatric
Institute (API), public defenders, and assistant attorney
generals would be among those required to file. He
questioned if the legislation would be constitutional. He
noted that an employee has privacy rights in regards to
their finances. He explained that to require a disclosure
there must be some nexus between the public interest in
disclosing and the person's privacy interest. He suggested
that the Court might find that some of the positions
affected cannot be required to disclose under the
Constitution. He added that the Court may find equal
protection violations. He pointed out that the bill applies
to ranges 19 and above in the executive branch and
legislature but not in the judiciary branch. He noted that
classified employees do not have to disclose.
Representative Martin asked if the problem could be solved
with a severability clause. Mr. Gaguine replied that a
severability clause would not hurt. He did not think that a
severability clause was necessary. He explained that a
ruling that some individuals cannot be covered would not
affect the remaining sections of the bill.
Representative Martin asked if employees of the Alaska
Housing Finance Corporation (AHFC) and Alaska Railroad
should be covered. Mr. Gaguine observed that Alaska
Railroad senior officials are in policy making positions.
He thought they could be included in the disclosure
requirements without fear of a constitutional challenge.
Mr. Gaguine commented on section 72 on page 42 which was
added by the Senate. He noted that while the legislature is
in session the governor and lieutenant governor may not fund
raise. He maintained that the provisions on page 9, section
13 would not preclude a senator running for governor from
fund raising during the legislative session. He observed
that the intent was to allow fund raising for statewide
office during the legislative session. If the parallel
language was drawn then the governor could not raise money
for legislative races. Funds raised during the session
could not be accepted by any incumbent in a legislative
race.
BROOK MILES, JUNEAU BRANCH ADMINISTRATOR, ALASKA PUBLIC
OFFICES COMMISSION (APOC) noted that several sections of SB
141 affect APOC. She noted that the Commission has serious
reservations concerning sections 27 and 28, Legal Defense
and Election Challenge Funds. She acknowledged that Senate
Intent Language would limit the scope of the Fund. She
expressed concern with possibilities for abuse of the Fund.
She recommended guidelines concerning contribution levels,
when contributions can be made and received and how much
could be spent. She noted that there are no reporting
requirements. She observed that APOC would be required to
issue regulations. The Legislative Ethics Committee would
administer and adjudicate cases. She noted that they are in
different branches of government. She observed that the
Commission has issued a fiscal note.
Representative Parnell questioned why the Fund is limited to
defense of a civil criminal administrative action. Ms.
Miles noted that the Commission was not consulted in regards
to the legislation.
Representative Brown referred to section 49, page 27. She
noted that language relating to gifts and loans was deleted.
Ms. Miles noted that the deletion is the recommendation of
the Legislative Ethics Committee. Gifts will be reported to
the Committee. Copies of disclosure of gifts would be
forwarded to the APOC and contained in each legislator's
file.
In response to a question by Representative Parnell, Ms.
Miles clarified that any person required to submit a
financial disclosure report under AS 39.50 or AS 24.60 could
raise their own funds. A legislative employee has the same
right.
REPRESENTATIVE DAVID FINKELSTEIN stated that under current
law a legislator cannot raise funds for a legal defense fund
because money that is not earned or given as a political
contribution or a legal gift cannot be accepted. He
emphasized that there is no mechanism for a legal defense
fund. Money would have to be accepted as a campaign
contribution. The legislation would create a new area for
legal defense funds.
Representative Brown asked for a clarification of effective
dates in sections 27 and 28. Ms. Miles explained that
section 28 would take effect if the initiative dealing with
campaign finance reform is enacted by a vote of the people.
She noted that section 27 would be effective if legislation
is enacted into law and is found to be substantially similar
to the initiative.
Representative Brown provided members with Amendment 1 (copy
on file). She noted that the amendment incorporates changes
recommended by APOC.
MIKE MCMULLEN, PERSONAL MANAGER, DIVISION OF PERSONNEL,
DEPARTMENT OF ADMINISTRATION discussed sections 68 - 70. He
noted that a substantial amount of work would be moved to
the Personnel Board in the Division of Personnel. He
observed that the Personnel Board is a lay board. There are
three members on the Board. The three members of the
Personnel Board are also members of the Public Employee
Retirement System Board. They meet several times a year.
He estimated that the legislation will require an additional
monthly meeting. He expressed concern with the additional
responsibilities of the Personnel Board. He noted that the
Board has not been informed of the proposed changes.
Mr. McMullen discussed the shift of responsibilities from
the Legislative Ethics Committee to the Executive Branch.
He spoke against the addition of language stating that an
appearance of a conflict of interest is a violation. He
observed that the Executive Branch Ethics Act already
applies to public employees. The bill would add a
subcategory called a "state official". He maintained that
additional requirements that are less demanding than the
existing Act will cause confusion. He questioned if both
provisions will apply to state officials. He noted that
section 69 is already covered under existing statute.
STEVEN (NEIL) SLOTNIK, ASSISTANT ATTORNEY GENERAL,
DEPARTMENT OF LAW explained that existing law under AS
39.52.120 is more stringent then the proposed requirements.
He compared subsection (a)(1) on page 37, to current law.
He observed that "personal interest" is deleted from current
statue. He asserted that the current law maintains a higher
ethical standard. He referred to section 71. He noted that
existing law prohibits a public official from accepting a
gift in circumstances from which it could be inferred that
the gift is intended to influence the public officer's
official duties. The legislation would allow gifts of under
$250 dollars. There is no requirement to determine if the
gift was intended to influence the official's duties. He
observed that subsection (e) prohibits a state official from
soliciting, accepting, or receiving, during a legislative
session, a gift with any monetary value from a lobbyist or a
person acting on behalf of a lobbyist. He stressed that the
language implies that a gift could be accepted outside of
session. He questioned the need for the additional
language.
Mr. Slotnik acknowledged his confusion in regards to section
71. He stated that it is unclear how the original statute
would be affected. He noted that currently gifts under $50
dollars are presumed not to be meant to influence official
duties. He stressed that he is unclear how to interface the
language of the old act with SB 141.
Mr. Slotnik noted that there is a new definition of "family
member" in section 102, page 52. The new definition
requires that the child or parent live with the individual
and be financially dependent. The current law covers blood
relation regardless of whether they are living with and
financially dependent on the state official.
Mr. Slotnik observed that the legislation creates two tiers
of public employees. He referred to section 69. He
observed that section 69 is in addition to the prohibitions
under AS 39.52.120. He stated that the implication is that
AS 39.52.120 does not reach to the additional provisions of
AS 39.52.125 as contained in SB 141. He suggested that the
prohibitions in section 69 would only apply to the top tier
of state employees, but not to the remainder of employees in
the classified service. Before the legislation, current
statute was interpreted to prohibit the use of state funds,
equipment or services in campaigning. He stressed that
since the provisions are not contained in the current
statute they would no longer be implied to pertain. He
maintained that there should not be two tiers in the
executive branch. He emphasized that it would be easier to
maintain compliance to a single high ethical standard and
educate employees if there is one executive branch ethical
act.
Mr. Slotnik noted that disclosure requirements are not in
the Executive Branch Ethics Act. He acknowledged that there
are currently two tiers in reporting requirements.
Representative Brown questioned the point of having two
tiers in the Executive Branch Ethics Act. Mr. Slotnik noted
that he was not consulted in regards to drafting the
legislation.
(Tape Change, HFC 96-158, Side 2)
In response to a question by Representative Brown, Mr.
Slotnik stressed that he is comfortable with the rule in the
existing Executive Branch Ethics Act, which prohibits an
executive branch employee from taking a gift if it is in
circumstances that could be inferred that it was intended to
influence their performance of official duties.
Mr. Slotnik reiterated that the new statutes would be
applied in addition to the current statute. He added that
the transfer of responsibility for advisory opinions and
investigation of ethic complaints from the Office of the
Attorney General to the Personnel Board is problematic. He
observed that the Personnel Board is a lay board that does
not meet regularly. He pointed out that the Attorney
General's office is equipped to advise agencies. There are
people on staff who are knowledgeable in regards to the
Ethics Act and the operation of the agencies.
Representative Parnell questioned if the Personnel Board
would be more independent. Mr. Slotnik questioned if
independence is of concern. He noted that opinions are
available for review. He did not think the quality of
advise would improve by the transfer. Mr. McMullen reviewed
new requirements of the Personnel Board in sections 70, 71,
and 90 - 100.
Representative Mulder stressed that the issue is the
perception of independence and impartiality. He thought
that public confidence would be raised by the transfer to
the Personnel Board. Mr. Slotnik noted that there are two
issues, advice and investigation of complaints. Under
current law, complaints are investigated by the Attorney
General. If probable cause is determined then an accusation
is filed with the Personnel Board. The Personnel Board
hears the case and makes a decision as to whether a
violation did occur. If a complaint is filed against a
attorney general, governor or lieutenant governor then the
Personnel Board appoints independent counsel.
Representative Mulder stressed that the perception is that
complaints are not going to receive an impartial hearing
under current law.
Mr. McMullen noted that the legislation would direct the
Personnel Board to give the complaint to the Attorney
General to serve notice and prosecute the case before the
Board.
In response to a question by Representative Brown, Mr.
McMullen explained that the Attorney General's staff
counsels the Board. Representative Brown asked if the
current system is broken or if there is a specific problem.
Mr. McMullen and Mr. Slotnik did not know of a specific
problem.
Representative Brown questioned the affect of not adopting
the Department of Administration's fiscal note. Mr.
McMullen stressed that there would be standstill in ethics
investigations. He emphasized that there is not enough
staff for the existing workload.
LAURA WILLIAMS, STAFF, SENATOR PEARCE observed that the
closest thing in the executive branch to an ethics committee
is the Personnel Board. She observed that Senator Pearce
felt that the Board would be more removed.
Representative Brown questioned why the section prohibiting
gifts during session was inserted into the Executive Branch
Ethics Act for year around employees. Ms. Williams
explained that the second tier was created to more closely
reflect the Legislative Ethics Act. She noted that the
intent is to make it clear that state officials should have
the same prohibitions as legislators. It was not the
Senator's intent to weaken the Executive Branch Ethics Act.
She maintained that the current law would apply to the state
offices. Representative Brown pointed out that the
standards in the legislation would not pertain to these
employees.
Mr. McMullen provided members with Amendment 2 (copy on
file). He explained that the amendment would delete
"compensated" and insert "appointed" on page 35, line 16;
and add "in the exempt services" on line 17. The amendment
would also make this change on page 53, lines 6 and 7. He
noted that the amendment would cover exempt service.
Representative Brown discussed Amendment 1. She noted that
the amendment was offered by the Administration. Mr.
Slotnik explained that the amendment deletes almost all of
the changes to the Executive Branch Ethics Act. If the
amendment is adopted there would no longer be two tiers.
All state employees would be subject to the Executive Branch
Ethics Act. The disclosure changes would remain.
Representative Brown MOVED to adopt Amendment 1. She noted
that the amendment would delete the transfer to the
Personnel Board and the two tier structure for state
officials and other public officers. It would leave in the
bill the changes in disclosure reporting for employees at
range 21 and above. She noted that it is not the intent to
weaken the Executive Branch Ethics Act.
Representative Parnell spoke in opposition to the amendment.
He suggested that both new and old prohibitions would be
enforced. He spoke in support of the investigation function
being transferred to the Personnel Board. Representative
Brown WITHDREW Amendment 1.
Mr. Slotnik clarified that current law pertains to
commissioners, directors, board members and other high level
policy makers. He observed that the two branches have
similar ethic regulations.
Mr. McMullen discussed Amendment 2. He explained that the
same 800 individuals would be affected. He noted that the
amendment clarifies that the requirements would pertain to
persons that occupy a position at range 21 or higher as
opposed to receiving pay equal to range 21. He noted that a
lower range with a higher step could have pay equal to a
range 21A. He explained that every hire is technically an
appointment to the position. All range 21 and above
employees would be covered, not just political appointees.
Mr. Slotnik observed that the compensation level was added
to cover exempt employees that are not scheduled by range.
He questioned the status of University of Alaska employees.
Representative Brown MOVED to adopt Amendment 2.
Representative Kelly OBJECTED. Representative Brown noted
that the amendment would make the disclosure cut-off at
range 21.
(Tape Change, HFC 96-159, Side 1)
Mr. McMullen further explained that the range level would be
the cut-off point rather than the compensation amount.
Representative Kelly WITHDREW his objection to Amendment 2.
There being NO OBJECTION, it was so ordered.
Representative Brown amended Amendment 3 to add "limited" on
page 4, line 29 after "C" (copy on file). She MOVED to
adopt Amendment 3. Representative Mulder OBJECTED.
Representative Mulder disclosed that his wife is a lobbyist.
Representative Brown disclosed that her husband has filed as
a lobbyist. She noted that all legislators are affected by
the legislation.
Representative Brown explained that Amendment 3 restores
current law. She noted that the intent is that an
occasional or incidental letter or call not related to their
office which is handled by a legislator in their state
office is permitted. She argued that without the amendment
there would be unlimited use of telephones and fax machines
for non-governmental purposes.
Representative Finkelstein clarified that "limited" would
prevent the running of a campaign or mailing house from the
office. Representative Parnell questioned the affect on the
legislator's staff. Representative Kelly asked if "limited"
is defined. Representative Mulder stressed that there is no
definition of "limited". He argued that there are
protections built in to the current system. Representative
Martin spoke in opposition to the amendment.
Representative Finkelstein noted that the supervisor
interprets the use of "limited". Representative Kelly
expressed concern with the lack of definition.
Representative Finkelstein stressed that the amendment
requires that employees comply with the policy of the
supervisor.
A roll call vote was taken on the MOTION to adopt Amendment
3.
IN FAVOR: Therriault, Brown, Kelly
OPPOSED: Martin, Mulder, Kohring, Foster
Co-Chair Hanley and Representatives Navarre, Parnell and
Grussendorf were absent from the vote.
The MOTION FAILED (3-4).
Representative Brown MOVED to adopt Amendment 4 (copy on
file). Amendment 4 would delete on page 3, lines 23 -30.
She reiterated that her husband has filed as a lobbyist.
She explained that the amendment would delete section 3,
which bans legislative spouses from being employed as a
lobbyist. Representative Martin OBJECTED. Representative
Brown maintained that spouses should be required to disclose
their lobbying activities. She stressed that legislators
are not prevented from contracting with or receiving gifts
from lobbyists. She noted that spouses may be employed in
the other body. She emphasized that the ban would be
inconsistent. She stressed that Alaska is a small state and
there are limited things that spouses can do in Juneau.
Representative Mulder reiterated that his wife is a
lobbyist. Representative Martin spoke against the
amendment. He stressed the poor public perception of
allowing legislative spouses to lobby the legislature.
Representative Kelly maintained that legislators vote their
conscience. He added that they will have to answer to their
constituents.
A roll call vote was taken on the MOTION to adopt Amendment
4.
IN FAVOR: Mulder, Therriault, Brown, Kelly, Kohring, Foster
OPPOSED: Martin
Co-Chair Hanley and Representatives Navarre, Parnell and
Grussendorf were absent from the vote.
The MOTION PASSED (6-1).
Representative Brown MOVED to adopt Amendment 5 (copy on
file). She explained that the amendment would clarify that
legislator's offices are considered public areas and are not
appropriate areas for display of campaign materials.
Representative Mulder OBJECTED. He asked if a campaign
button on a legislator's jacket in their office would be a
violation.
SUSIE BARNETT, SELECT COMMITTEE ON LEGISLATIVE ETHICS noted
that legislative employees cannot wear campaign buttons
while performing legislative duties.
Representative Martin indicated that a legislator's office
becomes their home away from home. Ms. Barnett indicated
that a division could be made between a legislator's inner
and outer office.
Representative Therriault maintained that no campaign
material should be distributed or posted in legislator's
offices. He added that a brochure or pin inadvertently worn
or carried into the office should not be considered as
distributing or posting. Representative Brown noted that
campaign buttons could be excluded.
Representative Mulder spoke in support of maintaining the
privacy of legislator's inner offices. He maintained that
legislators are not campaigning from their inner offices.
Representative Parnell suggested that "distributing and
posting" be further defined. He agreed that the inadvertent
position of campaign brochures or pins should not be
considered as distributing or posting. He expressed concern
with the proposal to exempt the inner office from the
prohibitions.
Representative Brown summarized that "distribute or post"
means to deliberately put something out, proactively
distributing or posting for view.
A roll call vote was taken on the MOTION to adopt Amendment
5.
IN FAVOR: Parnell, Therriault, Brown, Kelly, Kohring
OPPOSED: Martin, Mulder, Foster
Co-Chair Hanley and Representatives Navarre and Grussendorf
were absent from the vote.
The MOTION PASSED (5-3).
Representative Brown MOVED to adopt Amendment 6 (copy on
file). She explained that the amendment prohibits
legislators from receiving more than $100 dollars in any
form. The legislation would raise this amount to $250
dollars.
Representative Finkelstein explained that the intent is to
raise the threshold to $250 for gifts outside of the
legislature, from friends or families. Legislative gifts
would still be held at $100 dollars. He noted that the
federal level is $50 dollars.
Representative Martin spoke in support of reducing the gift
level to $50. Representative Brown noted that there are
exemptions for gifts that are not connected to a
legislator's status.
Representative Therriault noted that food consumed at a
social event or meal is not included.
There being NO OBJECTION, Amendment 6 was adopted.
Representative Brown MOVED to adopt Amendment 7 (copy on
file). Amendment 7 would delete discounts when on state
business. Representative Kelly spoke against the amendment.
(Tape Change, HFC 96-159, Side 2)
Representative Finkelstein emphasized that discounts can be
a way to circumvent the gift prohibitions. Representative
Martin pointed out that many legislators receive discounts
on housing.
Representative Kelly maintained that the danger of the
ethics law is not that a legislator will make an ethical
violation, but that there will be a perception of a
violation in the media. He spoke against the amendment.
Representative Finkelstein stressed that pricing based on
rental length or season is not a discount.
Representative Martin questioned if he could take advantage
of a 15 percent discount on carpet cleaning. Ms. Barnett
noted that the discount would be under $100 dollars. She
added that the discount is also being offered to a broader
group.
A roll call vote was taken on the MOTION to adopt Amendment
7.
IN FAVOR: Brown
OPPOSED: Kelly, Kohring, Martin, Mulder, Parnell,
Therriault, Foster
Co-Chair Hanley and Representatives Navarre and Grussendorf
were absent for the vote.
The MOTION FAILED (1-7).
Representative Brown MOVED to adopt Amendment 8 (copy on
file). Representative Finkelstein explained that the
amendment would provide for contribution and time limits on
legal defense funds. It also clears up the division between
the Legislative Ethic Committee and the Alaska Public
Offices Commission.
Ms. Miles summarized that the amendment would provide more
statutory guidance concerning the accounting behavior of
legal defense funds. It would also require that the
Commission by regulation determine when reports would be
filed disclosing who contributed to the Fund. It provide
that the Alaska Public Offices Commission the enforcement
body and provide for civil penalty assessments of late
filings of required reports.
In response to a question by Representative Parnell, Ms.
Miles noted that there would not be provision for a loosing
candidate who is not a seated legislator, subject to AS
24.60. However, they would be disclosure on their financial
disclosure reports.
Representative Finkelstein noted that the State of Alaska
acts on behalf of the winning candidate.
Representative Parnell expressed concern with the
contribution and time limits. He felt uncomfortable with
placing limits on someone who can be sued just because they
are legislators, when a person who does not hold office can
raise all the money that they want to participate in a
lawsuit.
Representative Parnell MOVED to AMEND Amendment 8 by
deleting the reference to page 16, line 2 and page 16, line
27. There being NO OBJECTION, it was so ordered. There
being NO OBJECTION, Amendment 8 was adopted.
Representative Brown provided members with Amendment 9 (copy
on file). Amendment 9 would delete "political" "or public
policy" on page 15 and 16. She questioned the need for this
language. Ms. Barnett noted that the language was added by
Senator Donely in the Senate. She stated that the language
was added to clarify that the defense fund could not be used
to fund divorce proceedings or other personal matters.
Ms. Miles observed that the without the amendment any civil,
criminal or administrative action could be covered.
ANN RINGSTADT, STAFF, SENATE STATE AFFAIRS COMMITTEE
clarified that Senator Donley's intent that the Fund should
only refer to the political position or election. Divorce
or small claims cases would not be covered. She noted that
monies could be used to defend against a frivolous case
having to do with a campaign.
Ms. Miles noted that expenditures for election challenges
are proposed for inclusion in other legislation.
Representative Mulder summarized that the legislation will
codify provisions regarding legal defense relating to
campaigns.
In response to a question by Representative Brown, Ms.
Ringstadt noted that the intent is to cover the cost of
actions arising against a legislator that was not under
their control.
Representative Brown HELD Amendment 9.
Representative MOVED to adopt Amendment 10 (copy on file).
She explained that the amendment would allow the subject of
a complaint to attend amy meeting concerning the complaint.
She noted that the Committee can consider the request and if
it decides to deny the request notify the subject of the
complaint their reasons.
Representative Kelly spoke against the amendment.
Representative Finkelstein noted that committee final
deliberations are not open to the public or the subject of
the complaint. He stressed that the amendment clarifies the
internal inconsistency.
Representative Therriault argued that the Legislative Ethics
Committee should not be elevated to jury status.
Representative Martin spoke against the amendment.
A roll call vote was taken on the MOTION to adopt Amendment
10.
IN FAVOR: Brown
OPPOSED: Kelly, Kohring, Martin, Mulder, Parnell,
Therriault, Foster
Co-Chair Hanley and Representatives Navarre and Grussendorf
were absent for the vote.
The MOTION FAILED (1-7).
Representative Finkelstein noted that page 22, line 17 is
inconsistent. He noted that the legislation would prohibit
the subject of the complaint from being present at committee
deliberations and vote on the dismissal order and decision.
Representative Kelly MOVED to adopt oral Amendment 11,
delete "or the subject of the complaint" on page 22, lines
11 and 12.
A roll call vote was taken on the MOTION.
IN FAVOR: Kelly, Kohring, Martin, Mulder, Parnell,
Therriault, Foster
OPPOSED: Brown
Co-Chair Hanley and Representatives Navarre and Grussendorf
were absent for the vote.
The MOTION PASSED (7-1).
Representative Brown MOVED to adopt oral Amendment 12 to
delete on page 23, lines 24 - 28. Ms. Barnett noted that
the amendment would retain the status quo. The language
would impose restrictions on the release of information by
the subject of the complaint unless the complainant has
agree to be bound by similar restrictions and has not made
public the information contained in the complaint,
information about the complaint, or the fact of filing the
complaint. She noted that the language would tie the
Committee to conditions as set by a person that the
Committee has no jurisdiction over. She noted that the
language pertains to be information irrelevant to the case.
There being NO OBJECTION, it was so ordered.
Representative Brown MOVED to adopt oral Amendment 13, on
page 8, line 29 insert "incidental" before "political
activities". She maintained that the language is too broad.
There being NO OBJECTION, it was so ordered.
Representative Mulder questioned if a ethics complaint can
be initiated within 60 days of an election. He alleged that
ethic complaints are being used as campaign tools. Mr.
Gaguine noted that AS 11.56 makes the crime of false
accusation with the Legislative Ethics Committee, a class A
misdemeanor. Representative Parnell pointed out that the
penalty requires proof beyond a reasonable doubt.
In response to a question by Representative Martin, Ms.
Barnett noted that the statues do not speak to a gift given
to a family member and imputed to the legislator. She noted
that family members are limited to those people listed on
page 13, lines 17 - 23.
(Tape Change, HFC 96-160, Side 1).
Representative Brown spoke to the need for changes within
the proposed legislation. She pointed out that following
communication with Senator Pearce's office, some changes
would be permissible. Representative Brown suggested that
the current bill could cause unfortunate repercussions. She
stressed that the legislative ethics as proposed would be
"forced" into the Executive ethics, explaining that the two
concepts are quite different.
SB 141 was HELD in Committee for further discussion.
| Document Name | Date/Time | Subjects |
|---|