Legislature(2011 - 2012)CAPITOL 120

03/19/2012 01:00 PM House JUDICIARY


Download Mp3. <- Right click and save file as

* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Delayed to 2:00 p.m. Today --
+ SB 89 LEGISLATIVE ETHICS ACT TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
+= HB 359 SEX CRIMES; TESTIMONY BY VIDEO CONFERENCE TELECONFERENCED
Moved CSHB 359(JUD) Out of Committee
                 SB 89 - LEGISLATIVE ETHICS ACT                                                                             
                                                                                                                                
2:11:51 PM                                                                                                                    
                                                                                                                                
VICE CHAIR  THOMPSON announced that  the first order  of business                                                               
would be CS FOR SENATE BILL  NO. 89(JUD), "An Act clarifying that                                                               
a  legislator  or  legislative  employee  is  allowed  to  accept                                                               
certain   compassionate    gifts;   allowing    legislators   and                                                               
legislative  employees   who  are  representing  persons   in  an                                                               
administrative hearing  to contact  hearing officers  and attempt                                                               
to   influence  the   outcome  of   the  hearing   if  they   are                                                               
professionals  licensed in  the state,  and allowing  legislators                                                               
and legislative  employees who are not  professionals licensed in                                                               
the  state  to  contact  hearing  officers  for  the  purpose  of                                                               
influencing  the outcome  of the  hearing  in certain  instances;                                                               
requiring the Select Committee on  Legislative Ethics to maintain                                                               
a   public  record   of  certain   ethics  disclosures   made  by                                                               
legislators  and  legislative  employees;  prohibiting  a  public                                                               
member  of  the  Select  Committee  on  Legislative  Ethics  from                                                               
disclosing   confidential   information  without   authorization;                                                               
clarifying the  ethics disclosure requirements for  tickets to or                                                               
gifts  in connection  with  charity  events; amending  disclosure                                                               
deadlines under the Legislative  Ethics Act; relating to requests                                                               
to  refrain from  disclosure under  the  Legislative Ethics  Act;                                                               
relating  to  the  applicability  of certain  provisions  of  the                                                               
Legislative   Ethics  Act   to  certain   legislative  employees,                                                               
volunteers,  and interns;  establishing a  seat for  an alternate                                                               
public  member on  the Select  Committee  on Legislative  Ethics;                                                               
clarifying   the  requirements   related   to  participation   by                                                               
alternate  public members  and alternate  legislative members  in                                                               
the  proceedings of  the committee;  amending  the definition  of                                                               
'legislative  employee'  in  the   Legislative  Ethics  Act;  and                                                               
repealing a  procedure for  appointment of  alternate legislative                                                               
members."  [Before the committee was HCS CSSB 89(STA).]                                                                         
                                                                                                                                
2:12:12 PM                                                                                                                    
                                                                                                                                
RYNNIEVA  MOSS,   Staff,  Senator  John  Coghill,   Alaska  State                                                               
Legislature,  on   behalf  of   the  sponsor,   Senator  Coghill,                                                               
explained  that  SB 89  -  proposing  changes  to AS  24.60,  the                                                               
Legislative Ethics Act  - is the product of  discussions with the                                                               
Select Committee  on Legislative Ethics over  the years regarding                                                               
certain  issues it's  had  to address.   Section  1  of HCS  CSSB
89(STA)  adds  [accepting] compassionate  gifts  to  the list  of                                                               
exceptions   to  prohibited   conduct,   thereby  addressing   an                                                               
oversight   that   occurred   when  the   legislation   regarding                                                               
compassionate gifts was initially passed.   Section 2 of the bill                                                               
provides  exceptions to  the prohibition  against involvement  by                                                               
legislators   and   legislative   employees   in   administrative                                                               
hearings.    Under  Section  2,  one would  be  permitted  to  be                                                               
involved  in an  administrative  hearing if  one is  representing                                                               
another person  for compensation  as a licensed  professional; if                                                               
one's contact  is made in the  presence of all parties  while one                                                               
is acting as  a party or a witness or  is responding to questions                                                               
posed by the adjudicating authority  and the contact is made part                                                               
of the  record; or if one's  contact is inadvertent and  ex parte                                                               
and its fact and substance  are promptly disclosed to all parties                                                               
and  made part  of  the  record.   Section  3  defines the  term,                                                               
"administrative hearing" as that term is used in AS 24.60.030.                                                                  
                                                                                                                                
MS.  MOSS explained  that Section  4  eliminates the  requirement                                                               
that the  Select Committee on  Legislative Ethics compile  a list                                                               
of  financial [disclosure]  statements;  public  access to  those                                                               
statements  must  be  maintained, however,  and  the  information                                                               
included  therein  must  still  be  forwarded  to  the  presiding                                                               
officers for  inclusion in the  legislative journals.   Section 5                                                               
adds  public  members  of the  Select  Committee  on  Legislative                                                               
Ethics  to the  statute  prohibiting  disclosure of  confidential                                                               
information.   [Sections 6 and  7 together] clarify  that tickets                                                               
to charity events  and any gifts such tickets  entitle the bearer                                                               
to may be  accepted but if from a lobbyist  cannot exceed $249.99                                                               
in  aggregate value  in  a  calendar year.    Section 8  provides                                                               
conforming changes regarding such  charitable items, and extends,                                                               
from  30 days  to 60  days, the  reporting period  for disclosing                                                               
certain gifts as outlined therein.   Section 9 replaces the term,                                                               
"trainee",  with  the  term,  "legislative  intern";  this  is  a                                                               
conforming change  that's also been  made elsewhere in  the bill.                                                               
Section  10 adds  a  new  provision stipulating  that  if one  is                                                               
required under  AS 24.60 to  make a certain disclosure  but doing                                                               
so  would  violate federal  or  other  state  law, then  one  may                                                               
request and [perhaps] receive a waiver from such disclosure.                                                                    
                                                                                                                                
2:21:12 PM                                                                                                                    
                                                                                                                                
MS. MOSS  explained that Section  11 provides  the aforementioned                                                               
additional  conforming  change   regarding  legislative  interns,                                                               
additionally  stipulating that  they  must also  comply with  the                                                               
statutory requirements  of AS 24.60.155 -  addressing legislative                                                               
ethics training.   Sections 12  and 13 add  a reference to  a new                                                               
statute being added by Section  14 regarding alternate members of                                                               
the Select Committee on Legislative  Ethics.  Section 14 provides                                                               
new  requirements  for  alternate   members,  including  that  an                                                               
alternate public  member be appointed.   Under  existing statute,                                                               
alternates  are  appointed for  the  legislative  members of  the                                                               
Select Committee  on Legislative Ethics,  but not for  the public                                                               
members, and  yet two quorums  - one  for the public  members and                                                               
one for  the legislative members  - must be established  in order                                                               
for  the  Select  Committee  on  Legislative  Ethics  to  conduct                                                               
business.   Establishing those  two quorums  has not  always been                                                               
possible,  and so  providing for  an alternate  public member  as                                                               
Section  14 is  proposing would  help ensure  that the  statutory                                                               
quorum requirements  are met.   Section  14 also  stipulates that                                                               
when  an  alternate  has  been designated  to  participate  in  a                                                               
particular proceeding,  he/she must participate for  the duration                                                               
of that proceeding.                                                                                                             
                                                                                                                                
MS.  MOSS explained  that [Section  15]  addresses the  statutory                                                               
definition  of the  term,  "legislative  employee", proposing  to                                                               
replace a list of certain employees  who are not considered to be                                                               
legislative  employees in  that they  perform functions  that are                                                               
only incidental to legislative functions,  with the term, "hourly                                                               
employees".   Section  16 repeals  AS 24.60.130(n),  the existing                                                               
provision addressing  alternate members  of the  Select Committee                                                               
on Legislative Ethics.                                                                                                          
                                                                                                                                
2:30:22 PM                                                                                                                    
                                                                                                                                
MS. MOSS  - in response  to questions about Section  2's proposed                                                               
exception  to  the  prohibition  against  being  involved  in  an                                                               
administrative hearing  so long  as one's contact  is inadvertent                                                               
and ex  parte and its  fact and substance are  promptly disclosed                                                               
to  all parties  and made  part of  the record  - explained  that                                                               
under  current  law,  once   an  administrative  hearing  process                                                               
begins,  any  contact,  whether  direct  or  indirect,  with  the                                                               
adjudicating authority would  be an ethics violation.   Under the                                                               
bill, in contrast,  one could simply notify all  the parties that                                                               
the contact occurred and was accidental.                                                                                        
                                                                                                                                
REPRESENTATIVE  PRUITT  pointed  out,  though,  that  in  such  a                                                               
situation, one  might not know  all the parties involved,  and so                                                               
questioned how one could comply  with the disclosure requirements                                                               
of that provision  without first becoming further  involved - for                                                               
example,  making   further  contact  while  researching   who  to                                                               
disclose the initial contact to  - and thereby committing further                                                               
violation.                                                                                                                      
                                                                                                                                
MS. MOSS ventured  that perhaps it would be  sufficient to notify                                                               
the  pertinent   department,  the  adjudicating   authority,  the                                                               
Department  of Law  (DOL), and  the Department  of Administration                                                               
(DOA).                                                                                                                          
                                                                                                                                
REPRESENTATIVE  HOLMES expressed  concern  that  one would  never                                                               
know  that one  has  to  take those  disclosure  steps if,  after                                                               
making  inadvertent ex  parte  contact in  writing,  no one  ever                                                               
responds to  explain that an  administrative hearing  process had                                                               
begun.                                                                                                                          
                                                                                                                                
2:39:28 PM                                                                                                                    
                                                                                                                                
PAMELA FINLEY,  Revisor of  Statutes, Legislative  Legal Counsel,                                                               
Legislative  Legal  and  Research Services,  Legislative  Affairs                                                               
Agency (LAA)  - on  behalf of the  bill drafter of  SB 89  and in                                                               
response  to  questions -  explained  that  Section 3's  proposed                                                               
definition of  the term, "administrative hearing"  was taken from                                                               
AS 44.64.200,  the definition section  of the  statute addressing                                                               
administrative hearing officers and  the office of administrative                                                               
hearings.   She acknowledged, however,  that the  committee could                                                               
choose to  delete Section 3's  proposed stipulation that  a rate-                                                               
making proceeding  is not an administrative  hearing for purposes                                                               
of  AS   24.60.030,  the   Legislative  Ethics   Act's  provision                                                               
addressing prohibited conduct and conflicts of interest.                                                                        
                                                                                                                                
REPRESENTATIVE  GRUENBERG expressed  interest  in  making such  a                                                               
change,  opining  that  just  as  with  administrative  hearings,                                                               
legislators shouldn't become  involved in rate-making proceedings                                                               
either.                                                                                                                         
                                                                                                                                
REPRESENTATIVE   HOLMES  expressed   a  preference   for  leaving                                                               
Section 3 as  currently written,  venturing that perhaps  in some                                                               
situations,  it would  be appropriate  for legislators  to become                                                               
involved in proceedings that affect  the rates their constituents                                                               
pay.                                                                                                                            
                                                                                                                                
MS.  FINLEY  -  in  response  to  Representative  Pruitt's  point                                                               
regarding  Section  2's  proposed exception  to  the  prohibition                                                               
against being  involved in an  administrative hearing so  long as                                                               
one's  contact is  inadvertent  and  ex parte  and  its fact  and                                                               
substance are promptly disclosed to  all parties and made part of                                                               
the  record  - explained  that  that  exception  is tied  to  the                                                               
prohibition, the  language of which stipulates  that a legislator                                                               
or legislative employee may not  attempt to influence the outcome                                                               
of  an administrative  hearing.   She  surmised, therefore,  that                                                               
simply  asking  who the  parties  are  in  order to  comply  with                                                               
Section 2's proposed  disclosure requirements wouldn't constitute                                                               
a further violation  of the law because such  inquiry wouldn't be                                                               
an attempt to  influence the outcome of the  hearing, and because                                                               
disclosing  the  initial contact  to  all  the parties  would  be                                                               
required.   She acknowledged, however,  that if the names  of the                                                               
parties haven't been made public  for some reason, then complying                                                               
with those disclosure requirements could be problematic.                                                                        
                                                                                                                                
VICE  CHAIR THOMPSON  observed  that under  the  language of  the                                                               
prohibition,  in order  for there  to be  a violation,  one would                                                               
have had  to contact, or  attempted to contact,  the adjudicating                                                               
authority,  and since  one wouldn't  bother to  do so  unless one                                                               
knew  that  an  administrative  hearing process  had  begun,  the                                                               
contact  wouldn't really  be inadvertent  and thus  the exception                                                               
wouldn't apply.                                                                                                                 
                                                                                                                                
2:50:27 PM                                                                                                                    
                                                                                                                                
MS.  MOSS,  in response  to  comments,  offered her  belief  that                                                               
contact alone  wouldn't necessarily constitute a  violation - one                                                               
would  also have  to be  trying to  influence the  outcome of  an                                                               
administrative hearing  via that contact or  attempted contact in                                                               
order for there to be a violation.                                                                                              
                                                                                                                                
REPRESENTATIVE  HOLMES  suggested amending  Section  2  so as  to                                                               
address situations  in which there  are parties whose  names have                                                               
not  been  made  public:    for  example,  perhaps  by  adding  a                                                               
stipulation that  in such instances,  it shall be  the department                                                               
or  adjudicating authority  that informs  the unnamed  parties of                                                               
the inadvertent ex parte contact.                                                                                               
                                                                                                                                
MS. MOSS acknowledged that point.                                                                                               
                                                                                                                                
MS.  FINLEY, in  response to  comments, concurred  with Ms.  Moss                                                               
that in order for  there to be a violation, one  would have to be                                                               
attempting to influence the outcome  of an administrative hearing                                                               
via  the contact  or attempted  contact.   Therefore, Ms.  Finley                                                               
surmised,  if  one  is  never  informed  that  an  administrative                                                               
hearing  process  has begun,  it  would  be  hard to  view  one's                                                               
inadvertent  contact as  an attempt  to  influence the  hearing's                                                               
outcome.                                                                                                                        
                                                                                                                                
REPRESENTATIVE  HOLMES  expressed  interest in  clarifying  under                                                               
what  circumstances  disclosure  of   the  inadvertent  ex  parte                                                               
contact or attempted contact would be required.                                                                                 
                                                                                                                                
2:55:51 PM                                                                                                                    
                                                                                                                                
JOYCE ANDERSON, Ethics  Committee Administrator, Select Committee                                                               
on Legislative  Ethics, Alaska State Legislature,  indicated that                                                               
the Select Committee on Legislative  Ethics has already issued an                                                               
advisory  opinion stating  that making  proper disclosure  to all                                                               
parties is  the responsibility of  the legislator  or legislative                                                               
employee  who made  the initial  contact,  including finding  out                                                               
exactly  who to  disclose  that contact  to.   She  acknowledged,                                                               
though, that  one issue  which perhaps ought  to be  addressed is                                                               
that of who would notify any  unnamed parties - for example, when                                                               
that  information is  being kept  confidential  for some  reason.                                                               
With regard to the concern that  one might be left nescient about                                                               
whether  an administrative  hearing process  has begun,  she also                                                               
indicated that before beginning  work on a constituent's problem,                                                               
it's the  legislator or legislative employee's  responsibility to                                                               
contact  the administration  to find  out if  such a  process has                                                               
already begun;  furthermore, staff to the  adjudicating authority                                                               
are able to answer such inquiries.                                                                                              
                                                                                                                                
MS.  ANDERSON, in  response to  questions  and comments,  relayed                                                               
that  Section 2  addresses administrative  hearings at  the state                                                               
level,  not  at the  local  level;  that  whether to  expand  the                                                               
provision to  include administrative hearings at  the local level                                                               
would be  a policy  call for  the legislature  to make;  that [AS                                                               
24.60.080(h)]  stipulates that  legislators may  accept gifts  of                                                               
services from  volunteers and trainees, with  the term, "trainee"                                                               
being changed  via Section 9  to the term,  "legislative intern";                                                               
that  an advisory  opinion issued  many years  ago by  the Select                                                               
Committee on  Legislative Ethics  indicates that such  gifts from                                                               
volunteers  are  considered  gifts,  and  that  such  gifts  from                                                               
legislative interns  are considered an exchange  of services; and                                                               
that the definition change proposed  via Section 15 addresses the                                                               
fact that the  Select Committee on Legislative  Ethics feels that                                                               
certain   employees   who   perform   functions   incidental   to                                                               
legislative functions should not  be required to take legislative                                                               
ethics training.                                                                                                                
                                                                                                                                
REPRESENTATIVE GRUENBERG  expressed disfavor with using  only the                                                               
criterion of being an hourly employee.                                                                                          
                                                                                                                                
MS.  ANDERSON pointed  out that  the other  criterion Section  15                                                               
provides for  is that  it be an  employee who  performs functions                                                               
incidental to legislative functions.                                                                                            
                                                                                                                                
VICE CHAIR THOMPSON,  after ascertaining that no  one else wished                                                               
to testify, closed public testimony on SB 89.                                                                                   
                                                                                                                                
3:10:20 PM                                                                                                                    
                                                                                                                                
VICE CHAIR THOMPSON  made a motion to adopt  Amendment 1, labeled                                                               
27-LS0452\O.1, Wayne, 3/14/12, which read:                                                                                      
                                                                                                                                
     Page 13, following line 16:                                                                                                
          Insert a new bill section to read:                                                                                    
        "* Sec. 15. AS 24.60.260(a) is amended to read:                                                                     
          (a) A person required to make a disclosure under                                                                      
     this  chapter  may  not  knowingly   make  a  false  or                                                                    
     deliberately  misleading  or incomplete  disclosure  to                                                                    
     the  committee   or  to   the  Alaska   Public  Offices                                                                    
     Commission.  A person  who files  a disclosure  after a                                                                    
     deadline  set  by  this  chapter  or  by  a  regulation                                                                    
     adopted  [BY THE  COMMITTEE OR]  by  the Alaska  Public                                                                    
     Offices Commission  has violated  this chapter  and may                                                                    
     be subject to  imposition of a fine as  provided in (c)                                                                    
     of this section or AS 24.60.240."                                                                                          
                                                                                                                                
     Renumber the following bill sections accordingly.                                                                          
                                                                                                                                
REPRESENTATIVE KELLER objected for the purpose of discussion.                                                                   
                                                                                                                                
VICE CHAIR  THOMPSON explained  that Amendment  1 -  proposing to                                                               
add a new Section 15 and  renumber the remaining sections - would                                                               
alter  existing  AS   24.60.260  [addressing  prohibited  conduct                                                               
related to disclosures, and the  penalties for such conduct] such                                                               
that it's  subsection (a) would  no longer  reference regulations                                                               
adopted by the Select Committee on Legislative Ethics.                                                                          
                                                                                                                                
REPRESENTATIVE HOLMES offered her  understanding that Amendment 1                                                               
is warranted  because the Select Committee  on Legislative Ethics                                                               
doesn't have the  authority to promulgate regulations  and so any                                                               
reference  to such  regulations  is  unnecessary and  potentially                                                               
misleading.                                                                                                                     
                                                                                                                                
MS. MOSS concurred.                                                                                                             
                                                                                                                                
REPRESENTATIVE  KELLER removed  his  objection to  the motion  to                                                               
adopt Amendment 1.                                                                                                              
                                                                                                                                
REPRESENTATIVE GRUENBERG  questioned whether  there would  be any                                                               
benefit to  providing the Select Committee  on Legislative Ethics                                                               
with such authority.                                                                                                            
                                                                                                                                
MS. ANDERSON posited that that  would be something for the Select                                                               
Committee on Legislative Ethics to discuss.                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG  stated that  he wasn't going  to object                                                               
to Amendment 1.                                                                                                                 
                                                                                                                                
VICE  CHAIR  THOMPSON  ascertained  that there  were  no  further                                                               
objections  to the  motion, and  announced that  Amendment 1  was                                                               
adopted.                                                                                                                        
                                                                                                                                
3:12:51 PM                                                                                                                    
                                                                                                                                
VICE CHAIR THOMPSON  made a motion to adopt  Amendment 2, labeled                                                               
27-LS0452\O.2, Wayne, 3/14/12, which read:                                                                                      
                                                                                                                                
     Page 11, line 8:                                                                                                           
          Following "interns":                                                                                                
          Insert "and volunteers"                                                                                             
          Following "intern":                                                                                                   
          Insert "or legislative volunteer"                                                                                     
                                                                                                                                
     Page 11, line 11, following "intern":                                                                                      
          Insert "or legislative volunteer"                                                                                     
                                                                                                                                
REPRESENTATIVE KELLER objected for the purpose of discussion.                                                                   
                                                                                                                                
VICE  CHAIR  THOMPSON  explained  that Amendment  2  would  alter                                                               
Section  11 such  that its  proposed AS  24.60.112 would  address                                                               
both legislative volunteers and legislative interns.                                                                            
                                                                                                                                
The committee took an at-ease from 3:13 p.m. to 3:14 p.m.                                                                       
                                                                                                                                
VICE  CHAIR THOMPSON  added that  under Amendment  2, legislative                                                               
volunteers  would  be  subject  to   the  same  ethics  rules  as                                                               
legislative interns.                                                                                                            
                                                                                                                                
MS.  MOSS  -  noting  that  the  reference  in  AS  24.60.112  to                                                               
legislative  volunteers  was removed  in  the  prior committee  -                                                               
indicated that the  sponsor would be amenable  to having proposed                                                               
AS 24.60.112  apply to both  legislative interns  and legislative                                                               
volunteers, since  both have  access to  confidential information                                                               
and the use of state equipment.                                                                                                 
                                                                                                                                
VICE CHAIR THOMPSON agreed.                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG said he supports Amendment 2.                                                                          
                                                                                                                                
MS. MOSS, in response to  a question and comments, explained that                                                               
at one  point, the bill's  proposed AS 24.60.112  stipulated that                                                               
one would have to work more  30 days before having to comply with                                                               
AS  24.60.112's referenced  statutes;  although that  stipulation                                                               
has since  been removed,  the committee could  amend the  bill to                                                               
add a specific time period back in.                                                                                             
                                                                                                                                
REPRESENTATIVE HOLMES expressed favor with doing so.                                                                            
                                                                                                                                
VICE CHAIR THOMPSON,  in response to a request,  relayed that the                                                               
motion to  adopt Amendment 2 would  be tabled, and that  HCS CSSB
89(STA) [as amended] would be held over.                                                                                        
                                                                                                                                

Document Name Date/Time Subjects
SB 89 HCS (STA).pdf HJUD 3/19/2012 1:00:00 PM
SB 89
SB 89 Request for House Judiciary Hearing.pdf HJUD 3/19/2012 1:00:00 PM
SB 89
SB 89 HCS (STA) fiscal note.pdf HJUD 3/19/2012 1:00:00 PM
HJUD 3/21/2012 1:00:00 PM
SB 89
HB 50 CS (JUD) M.pdf HJUD 3/19/2012 1:00:00 PM
HB 50
HB 359 (JUD) M.pdf HJUD 3/19/2012 1:00:00 PM
HB 359
HB 359 CS (JUD) Memo.pdf HJUD 3/19/2012 1:00:00 PM
HB 359
SB 89 House Judiciary Amendments.pdf HJUD 3/19/2012 1:00:00 PM
SB 89
Sponsor Statement HCSCSSB 89(STA).pdf HJUD 3/19/2012 1:00:00 PM
HJUD 3/21/2012 1:00:00 PM
SB 89
HB 359 Amendments.pdf HJUD 3/19/2012 1:00:00 PM
HB 359