Legislature(1995 - 1996)

02/28/1995 04:30 PM House RLS

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
 CHAIRMAN MOSES announced on the agenda is the proposed amendments             
 to the Open Meetings Act by the Select Committee on Legislative               
 Ethics.  He informed the committee members earlier that afternoon             
 the Senate passed a committee substitute which has been distributed           
 to members.  It affirms most, but not all, of the proposed                    
 amendments.  He announced that Joseph Donahue, Chairman, Select               
 Committee on Legislative Ethics, and Suzie Barnett, committee                 
 staff, were listening via teleconference.  Chairman Moses explained           
 committee members have received material from the Rules Committee             
 staff for review and said the topic is open for discussion.                   
 Number 147                                                                    
 REPRESENTATIVE JERRY MACKIE said he had a problem with the                    
 resolution that the Senate passed (SCR 8).  The reason is because             
 he thought it was very clear in the statute, which was passed                 
 relating to open meetings, that the Ethics Committee would submit             
 to the legislature, for approval or disapproval, a proposed set of            
 initial guidelines of which the Ethics Committee would use to                 
 operate under.  He explained there is nothing in the statute that             
 talks about whether or not the legislature can approve only parts             
 of the guidelines or disapprove some of them.  Representative                 
 Mackie stated, for the record, he has distributed to committee                
 members two legal opinions dated February 28.  The first opinion              
 is addressed to himself and Representative Porter from Tam Cook,              
 Director, Legislative Legal Services, which describes what the                
 statute says and what the authority is that the Ethics Committee              
 has and some case history.                                                    
 REPRESENTATIVE MACKIE explained the second legal opinion from Terry           
 Cramer, dated February 28, talks about three specific questions               
 which he had asked when he learned what the Senate action had done            
 to the guidelines.  He noted he chaired the Ethics Subcommittee               
 that drafted the guidelines.  When they were submitted, it was                
 brought to the subcommittee's attention that there were some                  
 inadvertent errors or potential conflicts with the original version           
 that was drafted.  Some were done by oversight, certainly not                 
 intentionally.  When the subcommittee realized that in consultation           
 with the Speaker and the Senate President, he requested that the              
 Ethics Committee revisit the issue and look at proposed changes in            
 order to clean up the language and to correct some of the                     
 inadvertentness that had taken place.  Representative Mackie                  
 explained that was done as Chairman Donahue did call a special                
 Ethics Committee meeting and it was dealt with last week.  Numerous           
 very constructive changes were made that were offered by the                  
 chairman of the House Judiciary Committee.  Those changes clarified           
 and corrected areas of concern that the committee had.  Those were            
 adopted and public input was allowed.  The corrections were                   
 reviewed and then they were resubmitted.  Representative Mackie               
 said it was his understanding that the Senate would act on it                 
 February 27, and the House would act on March 1, which met the                
 statutory requirement that they be voted up or down within a 45 day           
 period of time.  He said the House Speaker and the Senate President           
 have expedited those issues and brought them to the floor so that             
 the statutory requirement could be met.                                       
 Number 374                                                                    
 REPRESENTATIVE MACKIE explained what the Senate did with the                  
 resolution came as a complete surprise to him because his                     
 understanding was exactly what the statute says, that the                     
 legislature would either approve or disapprove guidelines that were           
 being proposed.  If the legislature chose to reject them, then the            
 process is laid out in statute for that.  They would have to go               
 back to the Ethics Committee and, within 60 days, the Ethics                  
 Committee would resubmit to the legislature a new proposed set of             
 guidelines, hopefully correcting areas which were determined to be            
 not acceptable by the legislature.  Representative Mackie pointed             
 out that nowhere in the statute does it talk about approving part             
 of them and disapproving part of them.  The legal opinion from                
 Terry Cramer confirmed what his suspicions were.  He said the first           
 question he asked was under AS 24.60.037, which sites SLA 94, "May            
 the legislature approve some but not all open meeting guidelines."            
 In the opinion of counsel, who is also counsel to the Ethics                  
 Committee and has been since its inception, the legislation which             
 was passed last year, does not give the legislature that authority.           
 The question remains, "What happens next?"  Representative Mackie             
 said his concern is what do we do and where do we go from here.  He           
 said he wanted to point out page 1 of the memorandum from Terry               
 Cramer deals with that.                                                       
 REPRESENTATIVE MACKIE explained the second question he asked was              
 what would be the effect if both the House and Senate adopt the               
 Senate version.  Would any portion of the guidelines be effective             
 or would all of the guidelines be effective.  Representative Mackie           
 said the opinion says it is up to the committee to interpret what             
 that means.  In a sense, it gives broader authority to the Ethics             
 Committee to interpret those things rather than taking some                   
 sections, which were identified in the "Further Resolved" clause,             
 away from the legislature their ability to consider and receive               
 complaints about those things.  Representative Mackie said it is              
 obvious that what they intended to do isn't what the net result is            
 going to be.  It gives the legislature the ability to consider                
 complaints without any guidelines to go by.                                   
 REPRESENTATIVE MACKIE said one thing which was clearly pointed out            
 to him was that guidelines actually are used to for the protection            
 of legislators so they know what they can and can't do.  Without              
 this, essentially, the Ethics Committee can make determinations               
 based on their own judgement, based on any individual case.  He               
 said he doesn't believe that was the intention.  The reason for               
 guidelines is so there is a guide to go by.  It is new to everyone.           
 Certainly, everybody involved has been working together                       
 cooperatively to bring these things to a vote.                                
 Number 418                                                                    
 REPRESENTATIVE MACKIE said the third question is, "What is the                
 effect of the first `Further Resolved' clause on the jurisdiction             
 of the Ethics Committee?"  He explained nowhere was the Ethics                
 Committee trying to change any Uniform Rules.  These guidelines               
 were brought forth, clearly, under the statutory authority that was           
 given to the Ethics Committee.  Representative Mackie indicated Ms.           
 Cramer's definition of the "Further Resolved" clause is in her                
 REPRESENTATIVE MACKIE explained he has a problem, from a legal                
 standpoint, as to what this all means now that the Senate has done            
 Number 634                                                                    
 REPRESENTATIVE PORTER said having been on the Ethics Committee for            
 the previous two years and was involved in this development                   
 process, he concurs with Representative Mackie's conclusion as to             
 the law.  The bottom line of what Representative Mackie is saying             
 is that if the House passes the resolution that the Senate passed,            
 we would be passing something that is improper.  He said he doesn't           
 know that it is illegal, but it probably would result in a decision           
 that we have, in his estimation, totally rejected the guidelines              
 which he thinks should be interpreted by the Ethics Committee as a            
 requirement for them to revisit and resubmit the 60 day cycle, as             
 the statute requires.  Representative Porter said it may be                   
 appropriate to ask Chairman Donahue if that is his interpretation.            
 Number 709                                                                    
 JOE DONAHUE, Chairman, Select Committee on Legislative Ethics, said           
 he believes Representative Porter's question was if he had any                
 comments on what the Select Committee on Legislative Ethics would             
 do if the guidelines were passed the way they are, in terms of                
 interpreting it as either rejecting the entire set of guidelines or           
 rejecting parts of them.  Mr. Donahue explained he doesn't feel at            
 liberty until he consults with the committee to project what they             
 might do.  He said the two options, as he sees it, would be to                
 either determine that the resolution is, in effect, rejecting the             
 (indisc.) Committee would have to submit new ones or that it was              
 deleting basically the section on meetings not otherwise described,           
 and the definition of political (indisc.) such as a non legislative           
 organizations, that go between (indisc.) meetings and that the rest           
 of the guidelines would be in effect.  Those issues would be open             
 to further interpretation if someone filed a complaint with the               
 committee.  Mr. Donahue said those are the two options that he                
 sees.  He noted he did get a copy of CSSCR 8(RLS) and he was                  
 somewhat surprised with it.                                                   
 Number 804                                                                    
 REPRESENTATIVE PORTER asked Mr. Donahue if he would consider                  
 possibly one of the options being to ask the committee to redraft             
 either those that were not affirmed or all of them, and resubmit as           
 the statute calls for, under the 60 day clause.                               
 MR. DONAHUE said, "Yes."  One of the options would be to consider             
 the passing of the resolution the way it is and rejection of the              
 guidelines as they were submitted, thereby requiring the Ethics               
 Committee to resubmit them.  He said with these eight areas that              
 are pointed out, these are the ones that the Ethics Committee would           
 try to clarify.  Mr. Donahue said he believes that is an option.              
 The other option would be to take the sense of the resolution and             
 determine somehow or another that the legislature would have                  
 adopted the guidelines without both parts.  He said in terms of the           
 aspects dealing with not conflicting (indisc.) to the Uniform Rules           
 or dealing consistently with the presiding offices of authority, he           
 isn't sure what was on the minds of the Senate when they passed               
 those two parts so he doesn't know how to interpret that.                     
 Number 882                                                                    
 REPRESENTATIVE MACKIE said it is the opinion of Legislative Legal             
 that these questions can only be answered by the Ethics Committee.            
 His point is that we're giving a very broad scope of authority to             
 interpret what is meant.  It was supposed to be that we would                 
 either approve or disapprove.  Representative Mackie explained that           
 there is three things that could happen.  One, the Ethics Committee           
 could decide parts of the guidelines that were approved will take             
 effect and that will constitute initial guidelines.  If they reach            
 that decision, the committee would then be able to amend the                  
 initial guidelines and do what ever they wanted with them.  A                 
 second possibility is that the committee would decide that failure            
 of the legislature accept the entire package is total rejection.              
 He said that would be the story and he isn't sure that they would             
 want to have their name on because there has been a lot of work               
 that has gone into the guidelines.  He said there has been a lot of           
 cooperation in the House, especially from the Speaker and                     
 Representative Porter.   Representative Mackie explained the last             
 possibility is the committee could decide that the legislature                
 lacked the power to offer amendments and make changes to them.                
 Essentially, the Ethics Committee could say that the legislature              
 didn't have the ability to do that.  He noted he isn't at liberty             
 to say what the Ethics Committee would decide.                                
 Number 972                                                                    
 REPRESENTATIVE MACKIE referred to the issue of what to do with the            
 resolution and suggested the House amend the it removing those                
 stipulations inserted by the Senate and approve the open meetings             
 guidelines so that the monkey isn't on the House's back.  He said             
 this is not a patrician talking, this is a House versus a Senate              
 issue obviously.  Representative Mackie said he doesn't know that             
 the House wants to go on record rejecting the guidelines if that is           
 what the Ethics Committee or the what the courts finally decide               
 what the action was.  He said he is pretty sure there isn't an                
 effort in the House to find a back doorway to reject the                      
 guidelines.  He said that is an appeal to committee members to                
 consider that as an option.  We are put in this position and not by           
 our own choosing.                                                             
 Number 1034                                                                   
 REPRESENTATIVE AL VEZEY explained he shares the same concerns that            
 the Senate expressed in the resolution.  He said he doesn't believe           
 it is a proper way to express them, but noted he might be wrong.              
 Representative Vezey said his suggestion is that this be done very            
 clean and simply reject the guidelines and pass a resolution                  
 addressing what the concerns with the guidelines are.                         
 Number 1083                                                                   
 REPRESENTATIVE EILEEN MACLEAN asked Representative Mackie to                  
 explain what the number three "Further Resolve" clause is on                  
 jurisdiction of the Ethics Committee.                                         
 REPRESENTATIVE MACKIE said he would like to forward that question             
 to Ms. Cramer as she wrote the opinion.                                       
 Number 1111                                                                   
 TERRY CRAMER, Attorney, Legislative Legal Services, Legislative               
 Affairs Agency, referred to question number three of her memorandum           
 and said she isn't sure what the affect would be.  She said it                
 would be an issue that would be subject to interpretation, by the             
 committee, if a question in the form of a complaint or otherwise              
 ever arose.  You get a situation where both the Uniform Rules and             
 the guidelines could be addressing the same topic.  It is possible            
 that what this means and what the committee (indisc.) it means is             
 that when an issue had been raised concerning compliance with both            
 the Uniform Rules and the open meeting guidelines on the floor of             
 the body, and there had been a ruling by the presiding officer that           
 the interpretation, as to the Uniform Rules, would bind how the               
 Ethics Committee should interpret the open meetings guidelines,               
 which otherwise are the responsibility of the Ethics Committee.               
 She said she doesn't believe that is said entirely clear and she              
 doesn't know if the committee would reach that understanding of it.           
 Ms. Cramer said she believes maybe that is what it means.  She                
 stated she doesn't know for sure.                                             
 Number 1206                                                                   
 REPRESENTATIVE GAIL PHILLIPS said if the House didn't act on March            
 1, would it nullify any action that might be taken at a later point           
 in time.  She asked if the legislation which states it must be                
 brought to the floor within 45 days, is a hard and fast directive             
 on the legislature or is it something that can be held until there            
 is time to analyze and do more study on the Senate changes.                   
 MS. CRAMER explained there are no consequences stated in the                  
 legislation for failing to comply.  She said she would assume that            
 if the legislature subsequently acted to either vote them up or               
 down, the committee would honor that subsequent action.                       
 REPRESENTATIVE PHILLIPS said if the bill is amended, the 45 day               
 deadline will be missed.  If an amendment is added, and it goes               
 back to the other body, they would have to have a special meeting.            
 She said she wouldn't expect them to do that.  It wouldn't go                 
 through the final process in 45 days.                                         
 REPRESENTATIVE MACKIE said he doesn't consider this a majority or             
 minority issue, but considers this an issue of complying with the             
 statute and voting to either adopt or reject proposed guidelines              
 that the Ethics Committee, in conjunction and cooperation with the            
 legislators, put together.  It is not an avenue to only reject or             
 approve part of them.  That is not something which was allowed for.           
 From that nonpartisan approach, he is concerned that we are all               
 going to be painted with the same brush.  Representative Mackie               
 said if it is brought to the floor, and there recommendations to              
 reject them and they are sent back to the Ethics Committee, it will           
 become a partisan issue.  He said he cannot vote to reject, in its            
 entirety, the guidelines.  Representative Mackie said he can vote             
 to amend the resolution back to original version to approve or not            
 approve and send it back to the Senate.                                       
 Number 1347                                                                   
 CHAIRMAN MOSES said technically, the statue is very clear that the            
 legislature has 45 days to act.  If you interpret it to the letter            
 of the law, not acting within 45 days is actually a rejection.                
 Number 1363                                                                   
 REPRESENTATIVE CON BUNDE said there are times when we feel                    
 compelled to do something even if it's wrong.  He said this is an             
 issue of where he certainly wouldn't counsel that the legislature             
 to just pass it on to get it over with.  No matter what is done,              
 the 45 day limit won't be met.  He said he isn't sure that should             
 affect deliberations.  Representative Bunde said if the House                 
 amends the bill, it needs to go back to the other body and it                 
 wouldn't make the 45 day limit.  He said he thinks that accepting             
 is the same as rejecting because he doesn't believe the committee             
 would accept the this as it is written.  Representative Bunde said            
 as he reads it, it is very clear that it is all or nothing.  It is            
 a choice whether they reject a flawed proposal or amend it.  In               
 either case, they won't meet the limitation.                                  
 Number 1425                                                                   
 REPRESENTATIVE MACKIE said the Senate will be meeting tomorrow                
 after the House meets.  He asked if tomorrow is actually the 45th             
 day.  REPRESENTATIVE PHILLIPS said it is the 45th day.                        
 Representative Mackie said if the House amended the resolution and            
 sent it back to the Senate, then they would have an option of                 
 concurring with the amendments.  If they did that, the 45 day rule            
 would be met.  Representative Mackie said if the House amends the             
 bill and sends it back to Senate, the House would be meeting the              
 statutory requirements.  The Senate may accept the House's                    
 amendments or may they may not.  If they don't accept the House's             
 amendments, then they are essentially rejected.  The House has done           
 its job and complied with the statutory requirement.  He suggested            
 that Representative Phillips may wish to consider this as an                  
 Number 1487                                                                   
 REPRESENTATIVE BUNDE said the point is well taken.  He said he                
 wasn't assuming that this is probably the incentive to operate with           
 that kind of speed and dispatch, tho it is a possibility.                     
 REPRESENTATIVE PORTER referred to where are we and where are we               
 going and said where we are is that there is no way that the House            
 of Representatives can, in a timely fashion, confirm the guidelines           
 so that they would go into effect.  The Senate has already decided            
 that we can't do that because of whatever they did.  It was not               
 acceptance of the guidelines.  Representative Porter said given the           
 60 day requirement where the Ethics Committee has to try to produce           
 a recycled version, if the House Rules Committee and the House                
 passed a resolution which was in some way different, the result is            
 a requirement that a conference committee be appointed to try to              
 resolve whatever their position is so that the legislature could              
 affirmatively give something to the Ethics Committee to work with.            
 Number 1569                                                                   
 REPRESENTATIVE MACKIE explained the only reason there would need to           
 be a conference committee is if they failed to agree with the                 
 House's amendments.  If the House amends the bill, passes something           
 that affirms the guidelines and sends it back to the Senate, and if           
 the Senate chooses to not accept the House's version, that is their           
 problem.  The House has done its job.  Representative Mackie said             
 his main concern is that the House should do it right.                        
 Number 1628                                                                   
 REPRESENTATIVE MACLEAN said she agrees with Representative Porter             
 and Representative Mackie and said the committee should follow                
 their recommendations and it should be nonpartisan.                           
 Number 1649                                                                   
 REPRESENTATIVE FINKELSTEIN stated he also agrees with                         
 Representative Porter and Representative Mackie.  He said he didn't           
 believe members should be overly concerned with the 45 day deadline           
 as the action of the legislature which would matter would be an               
 action, based on Ms. Cramer's memorandum, is a resolution to                  
 confirm the guidelines.  No matter when that resolution was passed,           
 it would still be effected.  Representative Finkelstein said                  
 Representative Porter's point is very important in that if it comes           
 to a conference committee, that is the most appropriate thing as              
 there is confusion.  He explained he believes there is confusion              
 within the Senate as he doesn't think they understand what the                
 guidelines do.  Representative Finkelstein said he believes the               
 guidelines are extremely reasonable.  Legislators were involved in            
 the drafting.  He said the Senate also misunderstands that the                
 legislature has to approve, up or down, the whole batch instead of            
 what they have chosen.  They also misunderstand the effect of their           
 resolution.  If it was to be adopted and the provisions weren't               
 included in the guidelines, it would essentially would be non                 
 Number 1717                                                                   
 REPRESENTATIVE BUNDE moved to amend CSSCR 8(RLS), on page 1, line             
 11, replace the word "affirm" with "approve" and follow that word             
 with a period and delete the remaining language.                              
 MS. CRAMER suggested the committee might want to consider amending            
 the title because it says "Approving in part..."                              
 CHAIRMAN MOSES suggested going back to the original version.                  
 MS. CRAMER said that result would be reached.                                 
 Number 1782                                                                   
 REPRESENTATIVE BUNDE withdrew his motion and moved that the House             
 Rules Committee adopt SCR 8, the original resolution.                         
 CHAIRMAN MOSES asked if it was in lieu of the committee substitute.           
 REPRESENTATIVE BUNDE agreed.                                                  
 REPRESENTATIVE MACKIE said if that happens, then the bill would               
 become a House Rules committee substitute.  He said he is in favor            
 of the motion.                                                                
 Number 1815                                                                   
 There being no discussion on the motion, CHAIRMAN MOSES asked for             
 a roll call vote.  Representatives Moses, Bunde, Phillips,                    
 Williams, Mackie and MacLean all voted in favor of the motion.                
 Representative Vezey voted against the motion.  The committee                 
 substitute was adopted.                                                       

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