Legislature(2005 - 2006)BELTZ 211
04/26/2005 03:30 PM Senate STATE AFFAIRS
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 182 | TELECONFERENCED | |
| + | HB 183 | TELECONFERENCED | |
| + | HB 210 | TELECONFERENCED | |
| + | HB 215 | TELECONFERENCED | |
| SB 186 | |||
| SB 187 | |||
| *+ | SB 127 | TELECONFERENCED | |
| = | HB 127 | ||
SB 187-LEGISLATIVE ETHICS/MEETINGS
VICE-CHAIR THOMAS WAGONER announced SB 187 to be up for
consideration.
5:13:59 PM
SENATOR RALPH SEEKINS, Sponsor, related that when he began
reviewing the Executive Ethics Act there was indication that the
Legislative Ethics Act should be reviewed as well.
He asserted that the same level of confidentiality should apply.
The intent is to hold someone who files a complaint or is
involved in the process to the same level of confidentiality as
the members and staff of the Select Committee on Legislative
Ethics. The investigators would also be brought under that
umbrella of confidentiality.
Current law says if a complaint is brought and then the
complainant goes public, then the complaint is dismissed.
However, the committee could go forward with an investigation.
He submitted that if an ethics complaint is filed and the
complainant immediately goes public with the allegation the
committee would have no recourse but to dismiss the complaint
and then go forward and investigate the allegations. He charged
that that's a toothless law.
5:17:32 PM
Confidentiality must be maintained until probable cause is
reached. At that point the complaint could become public. If the
complaint is dismissed as frivolous or baseless it remains
confidential. However, if a complaint is filed and the person
who is charged chooses to publicly defend him or herself then
the entire record becomes public. That provision applies to both
this bill and SB 186, he said.
The bill also attempts to clarify that the way the legislature
conducts business is the legislature's business and
responsibility. Any attempt by a legislator to break the rules
is taken seriously and the complaint is immediately taken to the
body to determine what the procedure should be. The proceeding
is in the full light of day and is discussed openly.
SENATOR CHARLIE HUGGINS asked about the alternate member.
SENATOR SEEKINS said having an alternate member increases the
likelihood that a full committee could meet and conduct the
committee's business, which includes voting.
5:30:14 PM
SENATOR ELTON said he would not continue to question the matter
of the class A misdemeanor, but it was still a subject of
concern.
He asked if it is correct that as a consequence of SB 187 he
would never hear about a justified ethics complaint that was
filed against his staff member provided the staff took
corrective action as ordered by the ethics committee.
SENATOR SEEKINS said that isn't the intent. The intent is that
once there is probable cause and some action has been taken then
the matter could become a public record. Confidentiality would
be protected until probable cause is established. If the bill
doesn't read that way now it will before it gets to the floor,
he assured.
SENATOR ELTON expressed concern about the proposed change to
allow an alternate member to vote without having attended all
the hearings on the issue. He compared the situation to someone
who didn't attend an entire trial, but was allowed to vote as a
part of the jury. He asked if the sponsor had considered other
ways such as requiring that the alternate hear all the arguments
before voting.
SENATOR SEEKINS pointed out that there is no such restriction on
the regular members.
SENATOR ELTON replied perhaps that needs corrective action.
SENATOR SEEKINS said he had no problem looking at the issue, but
he wouldn't saddle an alternate with a higher requirement than
is imposed on the regular members.
5:34:21 PM
SENATOR HUGGINS asked whether page 2, line 13-15 is to increase
diversity in the ethics committee.
SENATOR SEEKINS said yes.
SENATOR HUGGINS offered the view that it's a good idea because
others have recognized that it's a rather select group of people
with a narrow band of interest.
SENATOR SEEKINS submitted that occurred with no evil intent. The
nominees come from the chief justice so it's no surprise that
three are attorneys and one is the wife of a noted justice.
SENATOR ELTON remarked it is understandable, but it doesn't
speak to the qualifications of those who are selected.
Referencing the prohibitions relating to employment, he asked
whether people who might have a contract with the state would be
prohibited from being on the ethics committee. For instance
would a substitute teacher be excluded?
SENATOR SEEKINS replied a substitute teacher would qualify, but
not someone with a contract.
SENATOR ELTON remarked it seems constraining to draw a bright
line. It may be preferable to have the chief justice forward the
names without restriction and then the legislature could
exercise its judgment based on the individual's background.
SENATOR SEEKINS said there are already restrictions. It's common
sense to say you have to look at diversity. Of the three
attorneys that are currently on the committee, two have
contracts with the state for Office of Public Advocacy. He'd
like to see geographic and employment diversity and he has no
problem reserving a slot, but he's nervous when you suggest
more.
SENATOR HUGGINS referenced a previous discussion about his
potato farmer from Palmer having little opportunity to serve on
the ethics committee unless he knew the chief justice. If this
gives him a better opportunity then I'm all for it, he said. He
asked whether it does that.
SENATOR SEEKINS said that's the intent and the farmer has a
better chance under this structure than the current structure.
SENATOR ELTON said he'd challenge the notion that the only
people who get appointed know the chief justice, but that aside
this doesn't get to that issue. This would just narrow the band
of friends from which the chief justice could appoint.
5:43:30 PM
Senator Therriault rejoined the meeting.
SENATOR SEEKINS asserted that this is intended to broaden the
perspective.
5:45:02 PM
VICE-CHAIR WAGONER gave Chair Therriault an update and returned
the gavel.
CHAIR THERRIAUT asked Ms. Anderson to come forward.
JOYCE ANDERSON, Administrator, Select Committee on Legislative
Ethics, stated that the committee had not reviewed the bill
since it was just introduced. She could state support for issues
that the committee had addressed in the past and she'd comment
on those sections first.
The committee supports having an alternate member sit in when a
regular member is unable to attend a complaint hearing because
it would speed the process. If the alternate legislator or
public member sits in, it would be beneficial for them to sit in
throughout the complaint process.
The committee has also previously discussed and would support
the provision for the people who are interviewed during an
ethics complaint to fall under the confidentiality provision of
the statute. The committee has always felt that is important.
She referenced advisory opinions addressed in Section 6 and said
more discussions would ensue. Currently the person who requests
an advisory opinion has the option to have the discussion in
either an open or executive session. If confidentiality is
waived, the discussion takes place in an open session. She
supported the point that everyone named would have to waive
confidentiality to have the discussion occur in an open session.
She disagreed with Senator Seekins proposal that advisory
opinions remain confidential. All advisory opinions should be
public, she said; that's what they're there for.
5:50:07 PM
SENATOR ELTON said he thought names were scrubbed when an
advisory opinion is released.
MS. ANDERSON said that is correct.
SENATOR ELTON asked for verification that if this were to pass
and a person who is not named refuses to waive confidentiality
then that advisory opinion wouldn't be made public.
MS. ANDERSON replied that's the way she interprets the bill.
MS. ANDERSON directed attention to Section 1, which makes it a
class A misdemeanor to discuss an ethics complaint or release
information about an ethics complaint. She reported that the
commission chair feels that could make the public hesitant to
file a complaint. Therefore, she issued a word of caution in
adopting that provision.
Section 1 of the bill says a person shall be charged with a
class A misdemeanor, but it doesn't say the complaint would be
dismissed. Under SB 187 the complaint would go forward and the
commission supports that as an option for the committee.
5:53:39 PM
CHAIR THERRIAULT said under the current language if someone
makes an allegation and delivers the information to the press at
essentially the same time then the complaint is dismissed. The
result is that the battle is fought in the press.
The sponsor could say whether he crafted the bill so that there
is a penalty for hunting the headline. Certainly legitimate
allegations should come in and proceed through the system, but
the way the system is now it lends itself to abuse.
MS. ANDERSON agreed with the analysis but continued to urge
caution. Senator Elton's example of discussing an issue with
your spouse is a good case in point, she said.
SENATOR ELTON stated that he would be the last to argue that no
previous ethics complaints were spurious and it wouldn't be hard
to say that some of those complaints were politically motivated.
However, the new provision in Section 1 doesn't get to the root
of that issue, he said. Someone could go to the press regarding
an alleged ethics violation and not actually file a complaint.
They wouldn't be subject to the class A misdemeanor penalty
unless they filed the complaint.
CHAIR THERRIAULT responded the press isn't interested in being
used as a political tool. An alleged ethics violation would
probably be treated differently than a pending ethics complaint.
SENATOR ELTON said information is transmitted in lots of
different ways. Although he'd like to say that blogs and
organization newsletters and such are just as responsible as the
commercial press, he isn't sure that's the case.
CHAIR THERRIAULT stated that no one should be precluded from
making his or her views known, but he believes that the
professional press would verify information.
MS. ANDERSON said information about whether there was a
complaint or not is not released.
CHAIR THERRIAULT asked if there were further comments.
MS. ANDERSON said she had comments on Sections 7 through 14,
which relate to the actual complaint process.
She interprets the bill to mean that not all decisions from the
ethics committee would be considered public. The only decisions
that would be public would be those that went to a hearing or
the ones that were forwarded to either the Senate or the House
after probable cause was found. The noted that the sponsor said
that isn't his intent and that he would make some changes.
It's been agreed that dismissal orders should not be public
because that means that there wasn't probable cause. However,
she said, the public should be aware when there is probable
cause because it's an accountability issue. She noted that the
sponsor talked about changing that part of the bill as well.
The way the bill is now, the hearing would be confidential, but
as she discussed with the sponsor, the hearing should continue
to be public because probable cause would have been established.
It's like a grand jury that has found merit and is moving to the
next stage. The noted that the sponsor agreed to change that
part of the bill.
She reiterated the sponsor's assertion that the section on the
open meeting statute was an error and would be deleted.
The final section that was repealed related to public hearings.
She didn't discuss that with the sponsor in detail, but she
assumed that he would add it back because it deals with the fact
that the hearing is public.
There were no questions.
6:01:22 PM
MERLE THOMPSON, Susitna Valley resident, aired the view that the
Ethics Committee does a fine job, but there is a problem with
the public trust. He suggested there is reason that the public
feels the way it does.
He announced that he doesn't care for the secrecy provisions in
the bill, but the real ethics problems center on conflicts of
interest and how the legislature deals with them. That's where
the bright lines are needed and they aren't there. When you have
a conflict of interest it'd be a simple matter of recusing
yourself, but it's not happening. That's why there's a public
trust problem, he declared.
The right things aren't being addressed here, he said. It kind
of reminds me of Solzhenitsyn's Gulag Archipelago ["The Gulag
Archipelago 1918-1956"] and his beet top soup. "We're getting
this weak ethical soup. A beet top soup for the people and the
chunks of beets for the legislators and it doesn't seem right to
me."
6:06:02 PM
CHAIR THERRIAULT said it would seem that he would have a problem
with the grand jury system because there's nothing about it that
is public.
MR. THOMPSON replied that isn't a direct parallel. As Aristotle
said, "The office will show the man." He suggested that it would
benefit legislators to feel that the public holds them to a
higher standard.
CHAIR THERRIAULT said the ethics committee is acting as a grand
jury and the fact that there is confidentiality until a decision
is made isn't a problem with the general public.
MR. THOMPSON said he would beg to differ. Calling the previous
ethics rule change a strike against open government, he asserted
that the proposed bill takes it a step further.
6:09:31 PM
SENATOR WAGONER remarked he had four or five ethics complaints
filed against him two years ago and every one was false. He took
issue with the idea that unfounded ethics complaints that are
filed for political gain should become public.
MR. THOMPSON responded he must not have been harmed by the
process because he reads newspapers quite often he didn't hear
anything about any of the ethics complaints.
SENATOR WAGONER said they weren't founded so they weren't made
public. Had there been any substantial truth the public would
have probably been informed. He reiterated Senator Therriault's
argument that the ethics committee operates the same way as a
grand jury. Unsubstantiated claims aren't made public because to
do so would besmirch the individual's reputation.
MR. THOMPSON pressed the view that his reputation hadn't been
damaged.
CHAIR THERRIAULT made the point that the reason that Senator
Wagoner wasn't damaged is because the unfounded claims were
dealt with in a confidential manner. He said he didn't
understand what the argument would be to change that system.
MR. THOMPSON reported he didn't have any problem with how the
system was working two years ago, but it was changed last year
and this bill proposes to change it again. "We've had a plethora
of ethical lapses from different branches of government in the
last two years and I think that's what people are responding
to." The changes that are being made aren't addressing the real
problems, he declared.
6:12:45 PM
SENATOR HUGGINS commented there should be a disincentive to file
complaints with no basis.
MR. THOMPSON said he didn't need to reiterate that he believes
that there are ethical lapses that aren't being dealt with in a
particularly good way. We seem to be taking it the other way,
which is to put the accuser under more question than the
accused.
SENATOR ELTON directed attention to the last section, which
repeals open meetings and AS 24.60.170(m). He asked the sponsor
to clarify whether the suggestion is to take both repealers out
or just the one.
SENATOR SEEKINS replied one would be taken out because it was
put in by mistake. The other would be put back in after some
modification.
SENATOR ELTON asked for verification that AS 24.60.037(c), which
addresses the caucus and political strategy would be taken out
and AS 24.60.170(m) would be tweaked.
SENATOR SEEKINS replied the whole section on caucus would stay
in the bill. It would be addressed in a manner that clarifies
the areas of responsibility for the legislature and the
committee.
6:16:10 PM
There were no further questions or testimony.
CHAIR THERRIAULT held SB 187 in committee.
SB 187-LEGISLATIVE ETHICS/MEETINGS
CHAIR GENE THERRIAULT announced SB 187 to be up for
consideration.
9:19:53 PM
SENATOR RALPH SEEKINS, sponsor, reviewed the proposed changes.
Section 2 is the same as the original version and restates a
truism that exists.
Section 3 specifically names the open meetings guidelines.
Section 4 follows the commonsense guideline of not loading the
Select Committee on Legislative Ethics with people who are
involved in government.
Section 5 is unchanged from the original version.
CHAIR THERRIAULT moved version F as the working document. There
was no objection.
SENATOR THOMAS WAGONER read Section 4(c) and asked about people
who are members of no political party.
SENATOR SEEKINS questioned whether non-party isn't in fact a
political party. That point might need to be addressed at some
point, he said.
SENATOR WAGONER said he didn't believe that NP [nonpartisan] is
recognized as a political party in Alaska yet a lot of people
are registered that way.
SENATOR SEEKINS opined that as currently written all of them
could technically be nonparty.
SENATOR WAGONER suggested that it be addressed.
SENATOR SEEKINS clarified that the change in Section 5 is to
allow an alternate member to attend all committee and
subcommittee meetings and hearings rather than just hearings.
SENATOR ELTON raised the point that there is a bright line
prohibiting Senate members from going to House subcommittee
meetings and vice versa. If Section 5 were interpreted strictly,
an alternate legislator could go to either.
CHAIR THERRIAULT pointed out the next line says the alternate
may attend to the same extent as the regular member.
SENATOR SEEKINS said it was deliberately crafted so that the
alternate gets no more than the regular legislative member.
SENATOR ELTON agreed.
SENATOR SEEKINS said Section 6 relates to requesting an opinion.
It clarifies that everyone has the same opportunity to protect
his or her reputation.
SENATOR ELTON informed the committee that when the review was
complete he would motion to strike the new language in Section
6. He noted that advisory opinions are scrubbed of identifying
characteristics and they provide information that might be
helpful in guiding behavior. The addition of the proposed
language would constrain access to advisory opinions.
9:26:23 PM
SENATOR SEEKINS disagreed.
SENATOR ELTON read the proposed language and made the point that
the requester could say they didn't want the advisory opinion to
be released.
CHAIR THERRIAULT asked Ms. Anderson to come forward.
9:27:10 PM
JOYCE ANDERSON, Administrator, Select Committee on Legislative
Ethics, read AS 24.60.150(a)(2).
SENATOR SEEKINS asserted that the proposed language in Section 6
doesn't disallow sanitized versions.
CHAIR THERRIAULT reread the provision and said it's a statutory
duty to the committee.
MS. ANDERSON offered the opinion that the proposed language is a
bit confusing if you don't read the other section. She suggested
changing the language so it doesn't look as though the advisory
opinion remains confidential and isn't published.
CHAIR THERRIAULT asked if making reference to AS 24.60.150(a)(2)
would suffice.
SENATOR SEEKINS argued that there's a difference between the
sections. The proposed language says the information about the
opinion is confidential while the other section talks about
publishing semi-annual summaries of decisions and advisory
opinions with sufficient deletions in the summaries to prevent
disclosure of a person's identity.
CHAIR THERRIAULT asked Senator Elton if his concern would be
alleviated if it was made clear that AS 24.60.150(a)(2) remained
operative and that the sanitized versions are still published.
SENATOR ELTON replied the language in the other section speaks
only to summaries and not to opinions. It's always been the
committee's practice to release a sanitized opinion not a
summary of the opinion. The documents aren't one and the same.
MS. ANDERSON agreed with Senator Elton; public decisions that
are issued are not summarized. He's also correct that advisory
opinions are sanitized of information when drafted. Summaries
have never been published; it's the public decision and advisory
opinion itself that is published.
SENATOR SEEKINS maintained that an opinion that has been
sanitized is a summary of the opinion. Nonetheless, he said he
was willing to look at the issue to make sure that a sanitized
version of an opinion isn't precluded.
Sections 7 through 14 are to ensure that confidentiality is
maintained until a finding of probable cause. A finding that
only recommends corrective action shouldn't be made public.
MS. ANDERSON explained that since the ethics committee was
established in 1992, 57 complaints have been filed. Probable
cause was found in 10 cases; a mix of probable cause and
dismissed allegations was found in 6 cases; and 41 cases were
dismissed entirely.
When probable cause was established, corrective action was
recommended. That included: writing a letter of apology to the
House or Senate, developing office policy regarding use of staff
time, attending training sessions, removing private business
from legislative setting.
Since 1992 there have been three public hearings and just one
complaint has resulted in the imposition of sanctions. She said
that under the proposed policy only 4 decisions would have been
issued from 1992 to the present. All others would not have been
issued.
SENATOR SEEKINS asked if that was out of 10.
MS. ANDERSON clarified that there were 16 decisions issued.
Decisions were also issued for those that didn't have probable
cause because current statute says the cases are public if the
complaint goes to an investigative stage. If not, the complaint
is completely dismissed.
MS ANDERSON said she would comment further following the
presentation.
9:37:17 PM
SENATOR SEEKINS read AS 24.60.150(a)(2) and said that's how the
information comes down.
He asked for an amendment to delete lines 20-25 on page 7. His
intention is to pursue every complaint, but to hold responsible
those people who break confidentiality.
CHAIR THERRIAULT recapped previous discussion about what
currently happens when someone brings an action to generate a
headline. If the person discloses the action, the complaint is
dismissed.
SENATOR SEEKINS argued that the complaint isn't really
dismissed.
9:40:09 PM
CHAIR THERRIAULT asked for verification that if the language is
stricken then any complaint, whether it is disclosed or not,
goes forward and the discloser is punished.
SENATOR SEEKINS said yes; the penalty is for breaking
confidentiality.
CHAIR THERRIAULT asked about the change in Section 15, page 8,
line 27. The words "or obtained" were added.
SENATOR SEEKINS explained that the addition is to broaden the
requirements.
SENATOR ELTON asked if there is a difference between documents
filed with the committee and documents filed by the committee.
SENATOR SEEKINS said the intent is to include information
obtained rather than just disclosed.
SENATOR ELTON added, "Or filed."
SENATOR SEEKINS responded filed doesn't cover it because there
are disclosure processes. It's a term of art in the legal
profession, he said.
CHAIR THERRIAULT provided an example and suggested the addition
is more inclusive.
SENATOR SEEKINS remarked it's better to be redundant than to
have a loophole.
SENATOR ELTON noted that subsection (s) in Section 15 is new and
asked if a person who said they intended to file a complaint
would be subject to the penalty.
SENATOR SEEKINS replied as long as a person didn't file the
complaint they wouldn't be subject to the penalty.
SENATOR ELTON pointed out that it says filing of or intention to
file. If a person disclosed an intention to file a complaint and
hasn't filed, he asked if that person would be subject to a
class A misdemeanor.
SENATOR SEEKINS said he didn't believe it would be interpreted
that way. The intention is if someone intends to file a
complaint and subsequently files it. He had no problem with
adding language about subsequently filing the complaint.
9:44:24 PM
SENATOR ELTON said that would clarify and narrow the ability to
charge someone with a class A misdemeanor. I'm comfortable with
the addition, he said. I'm not saying I'm comfortable with
Section 15.
He suggested the committee consider inserting "that is
subsequently filed" after the word "complaint" on line 17.
SENATOR SEEKINS said he had no objection.
SENATOR ELTON moved the amendment.
CHAIR THERRIAULT suggested it be a conceptual amendment to give
the drafter some latitude.
CHAIR THERRIAULT found no objection to conceptual Amendment 1.
He noted that the repealers were dropped from the original
version.
SENATOR SEEKINS agreed saying they shouldn't have been there.
9:46:02 PM
SENATOR ELTON directed attention to Section 10 and asked if his
interpretation was correct that under this provision he would
never know that his staff member committed an ethics violation
if he or she completed the recommended corrective action. An
ethics violation is something that is fairly important for an
employer to know, he asserted.
SENATOR SEEKINS said it's correct that the employer wouldn't
know unless the employee chose to disclose the violation.
SENATOR ELTON argued that the employing entity should know if a
violation occurred and was confirmed by the ethics committee.
SENATOR SEEKINS suggested that any of the legislators present
would know about a staff member's ethics violation long before
the matter was resolved.
SENATOR ELTON responded if that's true then someone committed a
class A misdemeanor by leaking the information.
SENATOR SEEKINS pointed out that the person who is charged has
the right to disclose the information at any time to anyone so
he didn't see how that could happen.
SENATOR ELTON replied he could see how it could happen very
easily. The person who was charged might not want the employer
to know about the violation, but someone who was interviewed
might.
SENATOR SEEKINS said the employer would have a difficult
decision if someone other than the violator disclosed the
information.
CHAIR THERRIAULT made the point that under the grand jury system
an employer doesn't have a right to know about any charges that
were dismissed. As a legislator, should I have a higher duty of
a right to know about an allegation brought against a staff
member than a private business employer, he asked.
SENATOR ELTON said, absolutely, it's different. The Legislative
Ethics Law governs the behavior of legislators and staff and I'd
want to know if a staff member of mine violated the law and
agreed to the corrective action. That violation occurred in a
public trust that we both swore to uphold. Legislators cannot
divorce themselves from what their staff members do in the
office. Their actions reflect back on the legislators who hired
them.
Using the example of a criminal complaint that went to a grand
jury and was dismissed isn't the same issue, he said. In this
instance the person could be guilty and you still wouldn't know
unless the employee tells you about it. "We have a duty as
legislators to make sure our staff follows the law," he said.
CHAIR THERRIAULT raised a question about a private employer's
right to know an employee's business.
SENATOR SEEKINS announced that he wanted to correct the record
because his employees haven't taken an oath of office.
It's a delicate balance, he said. If the ethics committee
requires a corrective action, should that be a matter of public
record or should there be a level of confidentiality? That's the
decision that has to be made, but employees working for
legislators don't have a greater responsibility than any other
employee working anywhere else in the state of Alaska, he
asserted.
SENATOR HUGGINS asked Ms. Anderson to comment on her experience.
MS. ANDERSON said a point she'd like to make is that even though
there was corrective action, the person was found with probable
cause. That's similar to a guilty verdict even though there was
corrective action. Looking back to 1992 she didn't see any cases
that didn't have corrective action because what the person was
doing was violating the ethics code. There was a finding of
probable cause in all instances.
9:56:35 PM
SENATOR ELTON said if a court orders corrective action there is
a public record and that's the way it should be near. It's
ironic that the proposal is to go beyond that. Not only would
the matter be private, the employer wouldn't have any knowledge
of an ethics violation. As an employer I'd want to know so I
could make a judgment on whether or not that's behavior that I
want to tolerate or make a corrective action beyond what the
ethics committee suggested, he said.
SENATOR SEEKINS disputed the statement that his employees are
reflective of him. "Their actions may reflect on me. They may
affect my reputation by their actions, but they certainly aren't
reflective of me," he said.
CHAIR THERRIAULT asked if that's the only impact of Section 10.
SENATOR SEEKINS interjected if the legislature wanted a minor
infraction that has a minor correction to be public knowledge
then he would go along. He said he was just trying to err on the
side of privacy and not to make people criminals.
9:59:00 PM
CHAIR THERRIAULT asked Ms. Anderson to comment on his comparison
to the grand jury and that if charges were brought then the
matter would be public.
SENATOR SEEKINS interjected to say that he would agree to a
conceptual amendment that says that the line of confidentiality
ends at probable cause rather than at the point of corrective
action.
9:59:43 PM
CHAIR THERRIAULT asked if that would be accomplished by deleting
Section 10.
SENATOR ELTON noted the new language on lines 22 through 26.
MS. ANDERSON read subsection (m) and said that perhaps Senator
Seekins didn't realize that was reinserted.
SENATOR SEEKINS said it was put back in because it needed to be
modified rather than deleted. He had no problem with a
conceptual amendment so that once probable cause is established
the matter would become public.
MS. ANDERSON stated that by reinserting (m) that is
accomplished.
10:01:31 PM
CHAIR THERRIAULT noted that Senator Seekins suggested deleting
the language on page 7, lines 20-25.
SENATOR SEEKINS agreed and said his intent is to prosecute every
allegation of a violation of the ethics act to a determination
of whether or not there was probable cause.
CHAIR THERRIAULT moved to strike language on page 7, lines 20
through 25 as Amendment 2.
SENATOR ELTON questioned whether the net effect is that a
complaint doesn't need to be dismissed if confidentiality is
broken.
SENATOR SEEKINS said yes.
SENATOR ELTON removed his objection if it was implied that he
had one.
CHAIR THERRIAULT found there was no objection to Amendment 2.
Finding no further questions or suggested amendments he asked
for the will of the committee.
SENATOR WAGONER motioned to report CSSB 187(STA) and attached
fiscal notes from committee with individual recommendations.
SENATOR ELTON objected and stated that his objection centers on
the class A misdemeanor penalty for any sort of disclosure. That
sets up a situation in which I couldn't tell my wife if a
complaint is filed against me, he said.
CHAIR THERRIAULT asked if his concern relates to the severity of
the sanction or the fact that there's a sanction at all.
SENATOR ELTON replied a sanction was adopted just last year to
address this issue; the sanction was dismissal. Although the
complaint is dismissed, the ethics committee had the option of
re-filing the complaint. Certainly if the allegation is of a
serious nature an investigation should go forward because the
bad act of a complainant shouldn't allow somebody to skate.
Having served on the ethics committee he said he believes that
some complaints have been filed by bad actors. However, because
the press and the committee acted in a responsible manner in
those cases, neither political careers nor reputations were
damaged.
Although it's hard to quantify or prove, the bill provides a
disincentive to filing a complaint. For instance a person who
discusses an issue with someone and subsequently files a
complaint would find that they had broken the law.
SENATOR SEEKINS responded, "This same statute, basically, came
from Oklahoma." This is a serious matter and we need to do this,
he said.
10:07:40 PM
SENATOR ELTON said a person wouldn't know that they broke the
law until they file the complaint and are told. Further, he
said, it's not fair to keep using the grand jury example. There
are all sorts of reasons that someone might end up in court and
the grand jury example covers just a portion of the fact
situations that someone with a legitimate complaint might face.
CHAIR THERRIAULT pointed out that all other matters would be
civil.
SENATOR ELTON responded they're civil matters that could cost a
lot more than $10,000.
CHAIR THERRIAULT said if the state is bringing the charge then
it's through the grand jury process.
SENATOR ELTON replied it might not be the state bringing the
charge. It could be you or me or anybody. It's not just the
state that files complaints with the ethics committee.
SENATOR SEEKINS drew on his experience from serving on the
Judiciary Committee and said that mensrea is inferred in a
criminal complaint. A person has to have knowingly disclosed.
CHAIR THERRIAULT called for a roll call vote on the motion to
move the bill from committee. The motion passed 3 to 1 with
Senators Wagoner, Huggins, and Therriault voting yea and Senator
Elton voting nay.
CSSB 187(STA) moved to the next committee of referral.
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