Legislature(2009 - 2010)BARNES 124
02/12/2010 01:00 PM House RESOURCES
| Audio | Topic |
|---|---|
| Start | |
| HB41 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 41 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 41-BOARD OF FISHERIES CONFLICTS OF INTEREST
1:07:42 PM
CO-CHAIR NEUMAN announced that the only order of business is
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."
REPRESENTATIVE SEATON, sponsor of HB 41, stated that the bill
deals with conflicts of interest on the Board of Fisheries. It
is identical to House Bill 15, which was heard in the Twenty-
Fifth Legislature and which passed the House of Representatives
by a vote of 33-2. He noted that the Board of Fisheries is
composed of seven members, with each member confirmed by the
legislature. The members serve three-year terms and the board
meets four to six times per year in different communities around
the state to discuss different statewide issues. Board member
conflicts of interest are governed by the Alaska Executive
Branch Ethics Act.
1:09:20 PM
REPRESENTATIVE SEATON explained that any board member having a
participatory conflict of interest is recused from that issue.
However, the problem with this is that it takes the member out
of the board's discussion and means that a member with the most
knowledge to offer on a particular regional fishery cannot
participate in board deliberations or votes, although that
member can testify as a member of the public. Another problem
is that the definition of a family member under the Alaska
Executive Branch Ethics Act is so broad that a board member can
become conflicted out even if a very distant member of his or
her family has an interest in a fishery. This definition
disproportionately affects the rural parts of Alaska that have a
strong fishery basis for the economy and extended families that
participate in some aspect of the fishery. The solution is to
apply a pilot program that would allow members with a
participatory interest in a sport or commercial fishery to
deliberate on the issue, but not vote on it; this pilot program
would have a sunset [June 30, 2012]. The other solution is to
apply the less broad Legislative Ethics Act definition of
family, which defines family as direct relations living with and
supported by the member; this definition would therefore exclude
extended family such as aunts, uncles, and cousins that do not
live with the member.
1:12:04 PM
REPRESENTATIVE SEATON directed attention to the report entitled,
"Background Information on the Alaska Board of Fisheries
Conflict of Interest Disclosures and Ethics Act Compliance in
Regard to HB 41," dated February 12, 2010. He related that on
average between 2001 and 2006 individual board members were
required to recuse themselves on nearly 10 percent of the
proposals in each board cycle. The average between 2001 and
2010 is 11 percent [page 2 of the report]. Under the provisions
of HB 41, a board member would have a conflict of interest on an
issue when a board action might affect a member of that person's
household, but not that person's extended family.
1:12:59 PM
REPRESENTATIVE SEATON, in response to Co-Chair Neuman, noted
that the aforementioned report was prepared by Jim Marcotte,
Executive Director of the Alaska Board of Fisheries. He further
pointed out that in some years the conflict of interest is as
low as 3 percent and in other years as high as 20 percent. In
further response, he confirmed that 250 to 500 regulatory
proposals were heard by the board each year over the last 9
years, and 11 percent of the proposals were subject to a ruling
of a conflict of interest. He called attention to Table 1 in
the report that summarizes the number of proposals and the
percent of proposals with conflict for each of the nine years
between 2002 and 2010, inclusive.
1:14:38 PM
CO-CHAIR NEUMAN asked which category of fishery has the most
conflicts - subsistence, sport, or commercial.
REPRESENTATIVE SEATON referred to the third column in Table 2 of
the report and responded that conflicts of interest are more by
region than by specific type of fishery. For example, the
people with the four highest percentages of meetings with
conflicts [for the years between 2001 and 2010] were Robert
Heyano of Dillingham with a conflict at [26] percent of the
meetings, Vince Webster of King Salmon with 17 percent, Grant
Miller of Sitka with 14 percent, and Ed Dersham of Anchor Point
with 11 percent. Mr. Heyano, Mr. Webster, and Mr. Miller are
commercial fishermen and Mr. Miller is a sport charter operator.
John Jensen of Petersburg and Mel Morris of Kodiak each had 9
percent and, like the others, these two men are from areas that
have fisheries as an industry base with lots of extended family
members participating.
1:16:54 PM
CO-CHAIR NEUMAN referred to the last column in Table 2 that
lists the percent of proposals with conflict and noted that Mr.
Heyano is at 5 percent, Mr. Jensen is at 7 percent, and 17 of
the 24 board members have 0 percent conflict. He asked how
these numbers correlate with the 11 percent that was mentioned
for the 250 to 500 proposals.
REPRESENTATIVE EDGMON interjected that it is more complicated
than simply looking at a straight line analysis. He explained
that the Board of Fisheries has cycles where it meets every
three years in various locations, such as Bristol Bay, Cordova,
or Southeast Alaska, and this must be factored in. For example,
Russell Nelson of Dillingham [with 0 percent] was not an active
fisherman, but Robert Heyano was an active commercial fisherman
and had relatives in both the drift and set net areas. It must
be realized that when the meeting is taking place in a location
in which a board member lives and at which his or her fellow
community members are in attendance, that board member must sit
in the back of the room because he or she is conflicted out.
That makes no sense at all, he opined, and it is his view that
this issue has been mightily shortchanged by the legislature.
1:19:26 PM
REPRESENTATIVE SEATON stated that Table 1 is the easiest way to
look at the issue in the manner Co-Chair Neuman is talking
about. It can be seen from Table 1 that the number of proposals
per cycle and the percent of proposals with conflict is very
dependent upon the year. For example, if a particular cycle
includes proposals for Southeast Alaska and there is a board
member that is a fisherman in that region, that member will have
a large number of conflicts in that year. If there are
proposals for Cook Inlet and no member on the board is from the
Cook Inlet region, there will be no conflicts. He further
pointed out that on Table 2, Ed Dersham had conflicts as a sport
charter operator, not as a commercial fisherman.
CO-CHAIR NEUMAN said the last column of Table 2 indicates that
Mr. Dersham had conflict with 3 percent of the proposals.
REPRESENTATIVE SEATON, at Co-Chair Neuman's request, yielded the
witness chair to Representative Austerman for testimony.
1:21:46 PM
REPRESENTATIVE ALAN AUSTERMAN, Alaska State Legislature, noted
that he is from Kodiak and that he sat on the House Special
Committee on Fisheries for six years, during which time the
conflict of interest issue always cropped up as something
needing to be addressed. He said the interpretation by the
Department of Law is so strict that even the involvement in a
fishery of a board member's great uncle will take that member
out of the picture. How to resolve this conflict of interest
issue has been ongoing for a number of years. His personal
opinion is that Board of Fisheries members should be able to
declare every conflict they have at the start of a meeting and
then do business. If the member has a financial conflict, this
would be put on the table for everyone to see and everyone would
see how that member votes. However, getting to this point has
not happened over these years and he therefore thinks that
allowing board members to debate the issue, but not vote, is a
fairly decent methodology and a step in the right direction. He
requested that committee members consider extending the sunset
date beyond June 30, 2012, because that date would only cover
one cycle and he believes two are needed to adequately see how
well it is working.
REPRESENTATIVE AUSTERMAN, in response to Co-Chair Neuman, stated
that HB 41 addresses both personal and financial conflicts.
1:24:46 PM
REPRESENTATIVE GUTTENBERG surmised that people in the various
communities may feel they are not being represented when a board
member is conflicted out. He inquired whether this also causes
problems with not having a quorum or creating a tie vote.
REPRESENTATIVE AUSTERMAN answered that this does happen, but not
often. What it really gets down to is that the person with the
most knowledge cannot even debate or talk about the subject.
For example, in one instance a board member worked for an at-sea
processor composed of several processors from the Seattle,
Washington, area that also had processing plants in Alaska.
Every time an issue came before the board that had any kind of
effect on any one of those processors, the Department of Law's
interpretation was that that member had to recuse himself from
debating or even talking about the issue. The way this is set
up now and the way it is interpreted by the Department of Law is
ludicrous, he opined. He allowed, however, that he has never
seen a board member stand up and say the Department of Law's
interpretation is wrong.
1:27:26 PM
CO-CHAIR NEUMAN called attention to a letter written to
Representative Seaton by Judge Karl Johnstone, a current board
member, in which Judge Johnstone expresses his opposition to
[allowing board members who are conflicted from voting on a
proposal to be able to deliberate that proposal]. Co-Chair
Neuman related that during the confirmation process, Judge
Johnstone received unanimous positive comments in regard to his
ability to apply fairness.
REPRESENTATIVE AUSTERMAN responded that he has not had the
opportunity to talk to Judge Johnstone in this regard.
CO-CHAIR NEUMAN stated his intent to ask members of the fish and
game advisory committees and the public for their opinions on
the bill.
REPRESENTATIVE AUSTERMAN suggested that Co-Chair Neuman also ask
the opinions of all of the previous chairs of the Board of
Fisheries. Based on his past experience, he said he believes
all of the previous chairs have supported some type of change to
the conflict of interest.
REPRESENTATIVE EDGMON expressed his interest in hearing more
from Judge Johnstone because his experience with previous Board
of Fisheries members is the same as Representative Austerman's
and therefore the judge's opinion would be in the minority.
1:31:04 PM
REPRESENTATIVE SEATON resumed his introduction of HB 41. He
explained that every member is required at the beginning of
every meeting to declare any potential conflicts, including
financial. Thus, the conflicts of interest are on the table and
the decisions are made at the beginning of every meeting.
CO-CHAIR NEUMAN inquired whether a board member's financial
interests must be put forth on the table.
REPRESENTATIVE SEATON replied that that is done and Mr. Marcotte
will explain exactly how it is done. He said he believes the
form that board members must fill out is included in the
committee packet.
1:32:56 PM
REPRESENTATIVE TUCK asked whether there are any examples by
proposal and the number of people who had to recuse themselves
for each proposal.
REPRESENTATIVE SEATON answered that Mr. Marcotte prepared the
report independently of his office. He said most of the
recusals take place because of the regional nature of the
fisheries and where the board is in its cycle. So, generally,
these recusals come in huge blocks because a member having
extended family that fishes in that region must excuse himself
or herself from lots of the proposals.
1:34:49 PM
REPRESENTATIVE KAWASAKI inquired how many of these conflicts
would be taken out if the only thing that is changed is the
definition of family.
REPRESENTATIVE SEATON responded that under current law and HB
41, a board member would be barred from voting on proposals that
affect his or her bottom line as well as an immediate family
member's bottom line. However, he does not have the breakdown
for how many of those were extended family or immediate family.
1:36:10 PM
REPRESENTATIVE GUTTENBERG referred to page 2, line 5, of HB 41,
and asked how a conflict is determined and who makes the
determination.
REPRESENTATIVE SEATON deferred to Mr. Marcotte.
CO-CHAIR NEUMAN requested that a copy of the conflict of
interest form be provided to committee members. He reiterated
that the advisory committees will be contacted and that the
Department of Law will also be contacted.
JIM MARCOTTE, Executive Director, Board of Fisheries, Boards
Support Section, Alaska Department of Fish & Game, noted that he
compiled the statistics in the report and they encompass the
most recent Board of Fisheries meeting which concluded on
[February 7, 2010] in Anchorage. The statistics look back over
a nine-year period and because the board is on a three-year
cycle, the report includes three complete three-year cycles.
1:37:50 PM
MR. MARCOTTE, in response to Co-Chair Neuman, explained that
there are several goals in regard to board composition and the
three-year cycles. One goal is to have a board with a lot of
diversity - people from different geographic areas of the state
that have knowledge of different fisheries. The Alaska
Executive Branch Ethics Act is written so that people cannot
vote on something that he or she would have a direct personal or
financial interest in. So, those are competing goals. In
regard to the three-year cycle, instead of having one meeting
about salmon, the next about crab, and the next about sport
grayling fishing, the board has found that it works best to deal
with fishing issues in a particular region in one meeting. For
example, one meeting might deal with fishing issues for Bristol
Bay and the next might deal with fishing issues for Prince
William Sound. If there is a meeting on crab in Southeast
Alaska and a board member is a crab permit holder for commercial
fishing in Southeast, then he or she would potentially have a
conflict of interest in some proposals, such as those that are
close to the area that the member fishes. However, that member
would likely not have a conflict for crab fishing elsewhere in
the state and would thus bring to the board expertise about crab
fishing in general, issues about hot stacking, registration in
the different fisheries, particulars about gear, and so forth.
Therefore, the members have different expertise that they bring
on any different proposal.
1:40:28 PM
CO-CHAIR NEUMAN assumed that all seven board members would
likely have a broad-based knowledge about fisheries in general.
MR. MARCOTTE replied in general, yes. The rich diversity of
fisheries in Alaska is phenomenal and it is quite an education
to travel around the state over a three year period and learn
about these very unique fisheries.
1:41:32 PM
MR. MARCOTTE spoke about the board's procedures. He explained
that at the very beginning of a meeting right after
introductions, the chair asks each board member to describe his
or her income sources, to list any personal or financial
interest that the member or his or her family members may have
in fishery-related businesses, and to identify any personal or
financial interest that the member or his or her family members
may have in regard to any of the specific proposals.
1:42:26 PM
MR. MARCOTTE, in response to Co-Chair Neuman, confirmed that
each of the Board of Fisheries members completes a written
conflict of interest disclosure for each meeting. Most board
members have already prepared a written narrative of who his or
her family members are, along with a description of income
sources and any overlaps in fisheries. For some families this
is considerable and for some not. In response to further
questions from Co-Chair Neuman, Mr. Marcotte clarified that the
narrative is not a form that is filled out, it is information
that each board member presents verbally on the record at the
meeting. After a member presents that information, the chair
will invite questions from other board members. Based on that
discussion, the board chair makes a ruling as to whether each
member can participate in the different proposals. The member
does not state what the dollar values are for his or her income,
but does identify the income sources. When the chair makes the
ruling, it is not based on a dollar threshold, but whether it is
determined to be a significant conflict.
1:45:55 PM
CO-CHAIR NEUMAN asked whether HB 41 would require that the value
of the income be disclosed.
REPRESENTATIVE SEATON answered that there is nothing in the bill
that would change the current financial disclosure requirements
under the Alaska Executive Branch Ethics Act.
1:47:05 PM
MR. MARCOTTE directed attention to the chart on page 3 of his
report that shows the two different definitions of family for
the Alaska Executive Branch Ethics Act and the Legislative
Ethics Act. Under HB 41, the less broad definition of the
Legislative Ethics Act would instead apply, which would be a
significant change.
REPRESENTATIVE EDGMON pointed out that in his letter, board
member Karl Johnstone states that he supports the provision of
HB 41 that would narrow the definition of family members. He
asked for verification that he is interpreting Judge Johnstone's
statement correctly.
MR. MARCOTTE stated that he talked to Judge Johnstone yesterday
and Judge Johnstone expressed reservation about allowing a board
member with a conflict to participate in the deliberations, but
supported the aspect of HB 41 that would narrow the definition
of family. In regard to Representative Kawasaki's earlier
question about what the impact would be of narrowing the
definition, Mr. Marcotte said it is very difficult to know
because over the past nine years from which his dataset comes
from, the question did not delineate whether the conflict was
for a household member or for extended family. However, he
estimated that about half the time the conflict arises due to a
family member that is not part of the household.
1:51:01 PM
MR. MARCOTTE further noted that neither the Alaska Department of
Fish & Game (ADF&G) nor the Board of Fisheries has developed an
official position on HB 41 at this time. However, he added that
the bill fine tunes the procedures and does not propose a
revolutionary change. He related that most of the board members
have expressed general comfort with how the bill is written.
CO-CHAIR NEUMAN requested Mr. Marcotte's personal opinion as to
whether HB 41 would have a significant impact on the Board of
Fisheries.
MR. MARCOTTE answered that the interests are the quality of the
discussion - bringing in the expertise - and he thinks it is a
step in that direction. The flip-side concern is whether it
compromises the integrity of the board. It is a very important
part of the board process to know that decisions are being made
in the best interests of the state and not in someone's personal
interests. He thinks that keeping the restriction on voting,
but allowing the board member to participate in the
deliberations on record, strikes a good balance between those
two competing interests.
1:52:58 PM
CO-CHAIR NEUMAN commented that once integrity has been
questioned, it is hard to overcome even if the accusation is
proven untrue. He asked whether HB 41 would still establish
integrity.
MR. MARCOTTE stated he does not feel the bill would compromise
either the board's or the board members' public credibility and
he thinks the integrity of the board process would be
maintained. In further response, he said board members
currently have financial disclosures at the beginning of the
meeting; forms are not filled out with the dollar amounts that
are earned in different fisheries, but members do disclose what
their financial associations are in the different fisheries. He
noted that HB 41 does not seek a change in this regard and that
he believes the disclosure of financial associations at the
beginning of the meeting is what Representative Austerman was
referring to.
CO-CHAIR NEUMAN remarked that financial disclosure by
legislators is an important part of assuring that the public can
have trust in them.
1:55:21 PM
REPRESENTATIVE P. WILSON offered her belief that fishermen would
not want to serve on the board if they had to give financial
information.
MR. MARCOTTE agreed that that would discourage some applicants.
REPRESENTATIVE P. WILSON clarified that her statement was in
regard to whether the co-chair is suggesting that the disclosure
of dollar amounts be required.
CO-CHAIR NEUMAN responded no, he did not mean that. He pointed
out that financial disclosure has become a reason why people do
not want to serve on city councils or borough assemblies.
1:58:43 PM
REPRESENTATIVE SEATON said he believes the financial disclosure
that is required at the start of the Board of Fisheries meetings
is adequate and more details would not serve the interests of
the public. He directed attention to the paper in the committee
packet entitled, "Recusals due to Conflict of Interest in
Quarterly Ethics Reports 2003-2006." He said the paper was
prepared by his office and depicts the recusals due to conflict
of interest for the years 2003, 2004, 2005, and 2006 for the
various statewide boards in Alaska. He noted that for the state
medical board, a person is not recused because of a family
member being in medical practice. The Board of Fisheries is
much more restrictive in regard to involvement of either the
board member or the member's family. He said he will be
providing further information in this regard.
2:04:21 PM
REPRESENTATIVE SEATON, in response to Co-Chair Neuman, pointed
out that when the Board of Fisheries meets in a rural region
like Bristol Bay or Southeast Alaska where the economics of the
region are highly dependent upon fisheries, a board member from
that region will be recused from a number of proposals. Even if
it is only three board members being recused, it will be on a
huge number of issues because the cycle for that year is for
that region, and this can create a dramatic effect.
2:06:41 PM
MR. MARCOTTE added that he would like to echo Representative
Austerman's comment in regard to the bill's proposed review date
of January 31, 2012 [page 2, line 20], which would provide for a
review of one full cycle. As has been seen, he continued, each
cycle is going to have its own pattern, and the cycle coming up
is the Cook Inlet and Kodiak cycle. He offered his opinion that
the review period would need to go through three cycles to get a
representative sample of the different issues.
2:07:51 PM
REPRESENTATIVE EDGMON noted that this is his fourth committee
hearing on this bill and at each of those meetings comparisons
have been made to other boards and commissions. However,
comparison of the atmospheres between the Board of Fisheries and
the other boards are like comparing apples and oranges. Board
of Fisheries meetings are a highly public, highly scrutinized
environment; and this highly public decision-making process
essentially provides a built-in self-policing mechanism. The
decisions are very controversial and at times can involve much
fratch when allocating resources between competing user groups
that are sitting right there in the audience before the board
members. This is something that other boards and commissions do
not have to undertake. He said he considers the changes in HB
41 to be reasonable, yet comparisons are made to other boards
and commissions that have completely different missions and much
less publically-charged environments. For example, when was the
last time had the Pharmacy Board had 100 people at a meeting?
CO-CHAIR NEUMAN agreed.
2:10:44 PM
REPRESENTATIVE P. WILSON drew attention to page 3 of a document
in the committee packet entitled, "Fish & Game Transition Team
Issues Report to Governor Sarah Palin." She related that there
were 21 people on that transition team and one of the team's
recommendations was that "only the household members or
immediate family should be considered for conflict so as not to
unfairly bias the process against longstanding families with
extensive affected relatives." She further related that the
team outlined the following consequences of inaction: lack of
valid information in Board of Fisheries deliberations,
reluctance of well qualified members to serve on the board, and
lack of public confidence in the Board of Fisheries process and
state management. She said she therefore thinks it is important
to make this recommended change.
2:12:18 PM
CO-CHAIR NEUMAN noted that the suggested changes to HB 41 have
been about the sunset date and definition of family. He urged
Representative Seaton to work with Representative Kawasaki in
regard to the sunset date and Representative Edgmon in regard to
the definition of family.
REPRESENTATIVE SEATON agreed to work with Representative
Kawasaki in regard to the sunset date. He pointed out that the
bill already provides for narrowing the definition of family as
described in the transition team report cited by Representative
P. Wilson. He said he will be interested in hearing back from
the advisory committees because versions of this bill have been
out for at least four years. One version passed the House of
Representatives but did not make it through the other body.
Thus, there has been a lot of public notice and comment on this
bill. The original bill was more expansive and allowed voting
with the declaration of conflicts, but that along with a number
of other things has since been removed from the bill.
2:14:09 PM
CO-CHAIR NEUMAN inquired as to why this bill has not been passed
in the four years it has been around.
REPRESENTATIVE SEATON responded that, generally, the reason the
bills in previous legislatures did not pass was because they
would have allowed board members that declare a conflict of
interest to vote on the proposal, which is like what the
legislature does. However, HB 41 would not allow that. The
version of the bill that previously passed the House so broadly
had the same provision as proposed by HB 41, which is to allow a
conflicted board member to deliberate but not vote.
2:15:19 PM
CO-CHAIR NEUMAN, in light of Representative Edgmon's comments
about comparisons to other boards, said Representative Seaton
does not need to provide further information in this regard.
REPRESENTATIVE EDGMON replied that if the committee's desire is
to have this comparison, he would suggest that the director of
boards and commissions speak to the committee. In further
response, he clarified that he is not making a specific request
in this regard.
2:16:51 PM
CO-CHAIR NEUMAN opened public testimony. After ascertaining
that no one wished to testify, he closed public testimony.
CO-CHAIR NEUMAN held over HB 41.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 41.pdf |
HRES 2/12/2010 1:00:00 PM |
HB 41 |
| HB 41 Sponsor Statement.doc |
HRES 2/12/2010 1:00:00 PM |
HB 41 |
| HB 41 Fiscal Note.pdf |
HRES 2/12/2010 1:00:00 PM |
HB 41 |
| HB 41 Additional Information.pdf |
HRES 2/12/2010 1:00:00 PM |
HB 41 |
| HB41BoardVoteAbstentions.PDF |
HRES 2/12/2010 1:00:00 PM |
HB 41 |
| HB41FamilyDefinitions.PDF |
HFSH 2/5/2009 10:00:00 AM HRES 2/12/2010 1:00:00 PM |
HB 41 |
| HB 41 BBS report (2 05 09).pdf |
HRES 2/12/2010 1:00:00 PM |
HB 41 |
| HB 41 Letters of Support.pdf |
HRES 2/12/2010 1:00:00 PM |
HB 41 |
| HB 41 BBS Report 2.12.10.pdf |
HRES 2/12/2010 1:00:00 PM |
HB 41 |
| HB 41 Board Disclosure Info.pdf |
HRES 2/12/2010 1:00:00 PM |
HB 41 |