02/05/2009 10:00 AM House FISHERIES

HB 41 - BOARD OF FISHERIES CONFLICTS OF INTEREST                                                                              
                                                                                                                                
10:11:08 AM                                                                                                                   
                                                                                                                                
CHAIR EDGMON announced  that the only order of  business would be                                                               
HOUSE BILL NO.  41, "An Act relating to  participation in matters                                                               
before the Board of Fisheries by  members of the board and to the                                                               
definition  of   'immediate  family  member'  under   the  Alaska                                                               
Executive Branch  Ethics Act  as that Act  applies to  members of                                                               
the Board of Fisheries; and providing for an effective date."                                                                   
                                                                                                                                
CHAIR  EDGMON noted  that similar  legislation  passed the  House                                                               
last year.                                                                                                                      
                                                                                                                                
10:11:43 AM                                                                                                                   
                                                                                                                                
LOUIE  FLORA, Staff,  Representative  Paul  Seaton, Alaska  State                                                               
Legislature, explained  on behalf  of Representative  Seaton, one                                                               
of  the  bill's  joint  prime  sponsor, that  HB  41  deals  with                                                               
conflicts of interest as they pertain  to members of the Board of                                                               
Fisheries, and  [in part]  proposes to  change the  definition of                                                               
"immediate family  member" as  it would  pertain to  conflicts of                                                               
interest  by members  of the  Board of  Fisheries.   He mentioned                                                               
that committee  packets include letters  of support for HB  41 as                                                               
well as letters of support [and  a letter of opposition] for last                                                               
year's similar legislation.   The Board of  Fisheries is composed                                                               
of seven members  appointed by the governor and  confirmed by the                                                               
legislature; according to statute, these  seven members are to be                                                               
chosen  "on  the  basis  of  interest  in  public  affairs,  good                                                               
judgment, knowledge,  and ability in  the field of action  of the                                                               
board, and  with a  view to providing  diversity of  interest and                                                               
points of  view in the membership".   The Board of  Fisheries, he                                                               
offered, has been  designated by the legislature  to help fulfill                                                               
its  constitutional   duty  to   provide  for   the  utilization,                                                               
development, and conservation of the state's natural resources.                                                                 
                                                                                                                                
MR.  FLORA  indicated that  the  problem  HB  41 is  intended  to                                                               
address   revolves   around   [what's    perceived   to   be]   a                                                               
disproportionate number  of recusals by members  participating in                                                               
particular  fisheries.    These  recusals  are  required  by  the                                                               
current statutory  definition of  conflict of interest,  but when                                                               
recused, members are then unable  to bring their expertise of the                                                               
area and the fishery to the  deliberation and are unable to vote.                                                               
This  leaves  the  remaining members  having  to  make  decisions                                                               
affecting a  particular region without  also having  the specific                                                               
expertise about the region or  the fishery involved.  The changes                                                               
proposed by  [Section 2 of]  HB 41,  he offered, would  allow all                                                               
members,  after disclosing  any conflict  of interest  because of                                                               
participation in the particular  fishery at issue, to deliberate,                                                               
but would  still preclude  those with a  conflict from  voting on                                                               
the proposal.  Section  3 of HB 41 proposes to  add to the Alaska                                                               
Executive  Branch  Ethics  Act  -  AS 39.52  -  a  definition  of                                                               
"immediate family  member" as  it would pertain  to the  Board of                                                               
Fisheries; that proposed definition in part reads:                                                                              
                                                                                                                                
     with respect  to the application  of this chapter  to a                                                                    
     member  of the  Board of  Fisheries, "immediate  family                                                                    
     member" means                                                                                                              
          (1) the spouse or domestic partner of the member;                                                                     
     or                                                                                                                         
          (2) a parent, child, including a stepchild and an                                                                     
     adoptive  child,  or  sibling  of  the  member  if  the                                                                    
     parent, child,  or sibling resides with  the member, is                                                                    
     financially  dependent  on  the  member,  or  shares  a                                                                    
     substantial financial interest with the member.                                                                            
                                                                                                                                
MR. FLORA,  in conclusion,  relayed that  the bill  requires that                                                               
[proposed AS 39.52.120(g),  contained in Section 2  of the bill,]                                                               
be repealed on  June 30, 2012, and that by  January 31, 2012, the                                                               
Alaska Department  of Fish &  Game (ADF&G) shall submit  a report                                                               
[regarding the effect that provision had on recusal rates].                                                                     
                                                                                                                                
10:20:15 AM                                                                                                                   
                                                                                                                                
JIM  MARCOTTE, Executive  Director,  Board  of Fisheries,  Boards                                                               
Support Section,  Alaska Department  of Fish  & Game  (ADF&G), in                                                               
response  to  a  question,  explained  that  Board  of  Fisheries                                                               
members  must file  disclosures  with the  Alaska Public  Offices                                                               
Commission  (APOC),  and  must  disclose  possible  conflicts  of                                                               
interest at  the beginning  of each  Board of  Fisheries meeting.                                                               
Members  must  describe  their  income  sources,  must  list  any                                                               
personal  or  financial  interest  which  they  or  their  family                                                               
members  have in  fishing-related businesses,  and must  identify                                                               
any personal or  financial interest they or  their family members                                                               
may have  with regard  to the proposals  being considered  at the                                                               
meeting.   Once those disclosures are  made, following discussion                                                               
and  clarification,  the  chair  makes a  ruling  on  a  member's                                                               
eligibility  to participate  on specific  proposals, though  this                                                               
ruling  may  be  overturned  by  a  vote  of  the  members  whose                                                               
participation  is not  in question.    He noted  that during  its                                                               
week-long meetings,  the Board  of Fisheries  typically considers                                                               
between 50 and 200 proposals.                                                                                                   
                                                                                                                                
MR. MARCOTTE referred  to a document in  members' packets titled,                                                               
"Background  Information   on  the  Alaska  Board   of  Fisheries                                                               
Conflict of  Interest Disclosures", and relayed  that it contains                                                               
recusal statistics  for the last several  years; these statistics                                                               
illustrate  that about  10  percent of  the  proposals that  came                                                               
before the  Board of  Fisheries have resulted  in a  member being                                                               
recused  due to  a  potential conflict  of  interest.   Referring                                                               
specifically to  the page titled,  "TABLE 2.  BOARD  OF FISHERIES                                                               
VOTE ABSTENTIONS,  BY MEMBER (Oct.  2001 - Dec. 2008)",  he named                                                               
the 7  of the 23 members  active during that time  period who had                                                               
conflicts,  but acknowledged  that  the other  two-thirds of  the                                                               
members had  not had conflicts.   In  response to a  question, he                                                               
mentioned  that the  page titled,  "TABLE 8.   2006/2007  BRISTOL                                                               
BAY,  AYK,  ALASKA  PENINSULA  CYCLE"  illustrates  that  at  the                                                               
December 2006  Board of Fisheries  meeting regarding  Bristol Bay                                                               
finfish,  board  member  Robert  Heyano  from  Dillingham  had  a                                                               
conflict  with 38  out of  the 120  proposals; Mr.  Heyano is  an                                                               
active   commercial  fisherman   and   participates  in   "guided                                                               
Sportfishing" and subsistence fishing.                                                                                          
                                                                                                                                
10:26:47 AM                                                                                                                   
                                                                                                                                
CHAIR EDGMON asked whether the ADF&G supports HB 41.                                                                            
                                                                                                                                
MR. MARCOTTE  said neither the  ADF&G nor the Board  of Fisheries                                                               
has taken  a formal  position on  the bill,  but noted  that most                                                               
Board of  Fisheries members are  comfortable with the  concept of                                                               
HB 41  and are frustrated with  not being able to  participate on                                                               
some proposals.   In response  to another question, he  said that                                                               
no  research has  been conducted  yet to  determine whether  past                                                               
recusal rates would have been  different had the changes proposed                                                               
by HB  41 already  been in  place; he, too,  noted that  the bill                                                               
requires  the   ADF&G  to   submit  a   report  in   three  years                                                               
illustrating recusal rates.                                                                                                     
                                                                                                                                
REPRESENTATIVE JOHNSON  surmised that  some of the  past recusals                                                               
might still have  been required even if the  proposed changes had                                                               
been in place.                                                                                                                  
                                                                                                                                
CHAIR EDGMON noted, though, that under  the bill, a member with a                                                               
conflict  could still  have participated  in  the discussion  and                                                               
would have just been precluded from voting.                                                                                     
                                                                                                                                
REPRESENTATIVE JOHNSON  stated his support for  the bill, opining                                                               
that the Board  of Fisheries should be able to  take advantage of                                                               
the specific expertise that members have.                                                                                       
                                                                                                                                
MR. MARCOTTE  noted that  the page titled,  "TABLE 9.   2007/2008                                                               
COOK INLET/KODIAK  CYCLE" illustrates  that at the  February 2008                                                               
Board  of Fisheries  meeting regarding  upper  Cook Inlet,  board                                                               
member Howard  Delo from Big  Lake had a  conflict with 1  out of                                                               
the  286  proposals;  Mr.  Delo's  mother  in-law,  Mr.  Marcotte                                                               
explained,  has a  "latent set  net  permit in  Cook Inlet,"  and                                                               
under HB  41, Mr. Delo  could have  at least participated  in the                                                               
discussion of that proposal.                                                                                                    
                                                                                                                                
10:31:51 AM                                                                                                                   
                                                                                                                                
STEVEN DAUGHERTY,  Assistant Attorney General,  Natural Resources                                                               
Section,  Civil Division  (Anchorage), Department  of Law  (DOL),                                                               
said he is  not aware of any legal questions  arising from HB 41.                                                               
In response  to questions, he  explained that Board  of Fisheries                                                               
members are  subject to the  Alaska Executive Branch  Ethics Act,                                                               
and that  the changes proposed  by HB 41 would  not automatically                                                               
be  applied to  any other  agency or  board, though  such changes                                                               
could set  a precedent, and  thus other agencies or  boards might                                                               
come  before the  legislature seeking  similar  changes in  their                                                               
governing statues.                                                                                                              
                                                                                                                                
10:34:33 AM                                                                                                                   
                                                                                                                                
RON RAINEY,  Kenai River  Sportfishing Association  (KRSA), after                                                               
noting  that he  has attended  most if  not all  of the  Board of                                                               
Fisheries meetings over  the last 15 years, stated  that the KRSA                                                               
is opposed to  HB 41 because if  a board member who  has a direct                                                               
conflict  is allowed  to deliberate  on a  proposal, it  would be                                                               
possible for  him/her to  influence the other  members.   He also                                                               
opined that now is not the  appropriate time to be making changes                                                               
to  the  statutes governing  the  ethical  behavior of  Board  of                                                               
Fisheries members who  have a financial interest  in a particular                                                               
fishery.                                                                                                                        
                                                                                                                                
10:36:20 AM                                                                                                                   
                                                                                                                                
JERRY McCUNE, Lobbyist, United Fishermen  of Alaska (UFA), stated                                                               
support for HB  41, and expressed frustration  over situations in                                                               
which the member  with the most expertise  regarding a particular                                                               
fishery  is not  allowed to  participate; recusals  of this  type                                                               
leave the other members at a disadvantage.                                                                                      
                                                                                                                                
CHAIR  EDGMON, after  ascertaining  that no  one  else wished  to                                                               
testify, closed public testimony on HB 41.                                                                                      
                                                                                                                                
MR. MARCOTTE, in  response to a question,  indicated that finding                                                               
people interested  in serving on  the Board of Fisheries  has not                                                               
been a  problem, though  serving on the  Board of  Fisheries does                                                               
require a great deal of time.                                                                                                   
                                                                                                                                
CHAIR  EDGMON  offered  his  understanding   that  the  Board  of                                                               
Fisheries  meets approximately  40  days per  year, and  surmised                                                               
that that could influence a person's decision to serve.                                                                         
                                                                                                                                
10:40:17 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE MUNOZ moved to report  HB 41 out of committee with                                                               
individual  recommendations and  the  accompanying fiscal  notes.                                                               
There  being no  objection, HB  41  was reported  from the  House                                                               
Special Committee on Fisheries.