Legislature(2009 - 2010)CAPITOL 106
03/24/2009 08:00 AM House STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| HB73 | |
| HB123|| SB35 | |
| HB193 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 73 | TELECONFERENCED | |
| *+ | HB 123 | TELECONFERENCED | |
| *+ | HB 193 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 193-LEGISLATIVE ETHICS ACT 9:12:17 AM CHAIR LYNN announced that the last order of business was HOUSE BILL NO. 193, "An Act relating to representation by a legislator or legislative employee of another person in an administrative hearing; relating to charity events under the Legislative Ethics Act; requiring compensation of public members of the Select Committee on Legislative Ethics; exempting certain information from disclosure requirements of the Legislative Ethics Act; relating to the selection of alternate members and the participation of members and alternate members in formal proceedings of the Select Committee on Legislative Ethics and its subcommittees; and defining 'constituent,' 'constituent service,' 'legislative purpose,' 'nonlegislative purpose,' and 'private benefit' for the purposes of the Legislative Ethics Act." 9:12:29 AM RYNNIEVA MOSS, Staff, Representative John Coghill, Alaska State Legislature, Introduced HB 193 on behalf of Representative Coghill, prime sponsor. She said the bill addresses issues within ethics law which the Select Committee on Legislative Ethics thinks need to be refined. She suggested giving a sectional analysis for the committee. 9:13:51 AM REPRESENTATIVE WILSON moved to adopt the proposed committee substitute (CS), Version 26-LS0656\S, Wayne, 3/23/09, as a work draft. 9:13:59 AM REPRESENTATIVE SEATON objected for discussion purposes. 9:14:08 AM MS. MOSS noted that definitions are found on page 7 of both the original bill and Version S. One definition that has been changed is that of constituent. The original bill limited the definition of constituent as someone living in a candidate's election district. The definition on page 7, lines 24-25, of Version S, read: (17) "constituent" means a natural person to whom a legislator owes a duty of representation under the Constitution of the State of Alaska; MS. MOSS explained that the term constituent is used in ethics laws related to controlling campaign. She said, "By defining constituent this broadly in this section of the law, we're causing other problems." CHAIR LYNN asked, "You mean in the original bill?" MS. MOSS answered, "In both bills." She stated, "In our discussions this morning, quite frankly, I think what we're looking at is defining the word 'person'." 9:15:36 AM JOYCE ANDERSON, Ethics Committee Administrator, Select Committee on Legislative Ethics ("the Ethics Committee"), cited the definition of "person" in AS 01.10.060, which read as follows: Sec. 01.10.060. Definitions. (a) In the laws of the state, unless the context otherwise requires, (8) "person" includes a corporation, company, partnership, firm, association, organization, business trust, or society, as well as a natural person; MS. ANDERSON said the definition of person is "very broad." 9:16:13 AM MS. MOSS said [the Ethics Committee] is having problems with AS 24.60.030(a)(2), which read as follows: (2) use public funds, facilities, equipment, services, or another government asset or resource for a nonlegislative purpose, for involvement in or support of or opposition to partisan political activity, or for the private benefit of either the legislator, legislative employee, or another person; MS. MOSS said "person" should be defined, not "constituent". She mentioned [AS 24.60.030(a)(2)(J)], which states that paragraph (2) does not prohibit: (J) a legislator from sending any communication in the form of a newsletter to the legislator's constituents, except a communication expressly advocating the election or defeat of a candidate or a newsletter or material in a newsletter that is clearly only for the private benefit of a legislator or a legislative employee; or MS. MOSS continued: So, if you define constituents broadly, then what you're saying is a legislator could send a newsletter statewide, and it could be within a window period very close to an election. It could be a House member who is running for a Senate seat that sends his newsletter to two House districts, which under current law would be unethical. So, in using the word constituent, ... there could be a lot of unintended consequences. MR. MOSS recommended either that the definition under (17) [of Version S, text provided previously] be eliminated or that the definition of "person" in [AS 01.10.060, text provided previously] be reinserted. 9:18:12 AM REPRESENTATIVE GRUENBERG suggested one way to address the issue would be to delete the word "natural" from paragraph (17) [text provided previously]. He stated that some people have concerns about legislators sending newsletters outside their districts, but Representative Gruenberg said he does not share that concern. He said he thinks a legislator has a duty to exercise free speech. He posited that people are interested in what legislators do, and he thinks legislators have the responsibility to keep the people in the state informed. He clarified that legislators do not solely represent natural people, but also represent groups of people. MS. MOSS said 24.60.030(a)(2) addresses the use of public funds and facilities. The word constituent is not used in that subsection, she said. The term used is "another person". She clarified, "So, my concern is, we're defining "constituent", but the problem exists in the word "person". 9:22:28 AM REPRESENTATIVE WILSON asked for clarification. 9:22:49 AM CHAIR LYNN referred to the words "owes a duty of representation" - in paragraph (17) - and said he does not represent the Shriners or Providence [Hospital], for example. REPRESENTATIVE WILSON related that although she is not the Representative for those living on Prince of Wales Island, she is the Representative closest in proximity; therefore, she receives calls from people who live on the island, at which point she does not tell them they are not her constituents, but rather helps them if she can. She said she thinks it is important to ensure that it is okay for legislators to do that. MS. MOSS responded as follows: I think she brings up a good point, and "constituent" certainly could be defined as a person, as it is here. I just think we need to clarify that a person, in this subsection, is defined as it is in Title I. 9:24:17 AM REPRESENTATIVE SEATON remarked that by defining the term constituent broadly, big oil companies would be his constituents, yet under campaign law, contributions from oil companies are not allowed. He said he wants to ensure "what ramifications this goes through," and he recommended looking at where the term constituent is used throughout all ethics legislation and APOC regulations. 9:25:25 AM MS. MOSS responded, "This ... actually is a definition in this chapter. That's how it is read in Section 24.60.990, definitions (a); in this chapter these words are defined in this manner." 9:25:47 AM MS. ANDERSON proffered that there are two sections in ethics statute that use the word "constituent". One is the statute to which Ms. Moss referred, 24.60.030(a)(2)(j), which states that a legislator or legislative employee may not "use public funds, facilities, equipment, services, or another government asset or resource for a nonlegislative purpose, for involvement in or support of or opposition to partisan political activity, or for the private benefit of either the legislator, legislative employee, or another person". Listed under that which paragraph (2) does not prohibit is subparagraph (J), which read as follows: (J) a legislator from sending any communication in the form of a newsletter to the legislator's constituents, except a communication expressly advocating the election or defeat of a candidate or a newsletter or material in a newsletter that is clearly only for the private benefit of a legislator or a legislative employee; MS. ANDERSON said the other instance where "constituent" appears in ethics statute is in AS 24.60.030(e), which states that a legislator "may not directly, or by authorizing another to act on the legislator's behalf": (2) state or imply that the legislator will perform or refrain from performing a lawful constituent service as a result of a person's decision to provide or not provide a political contribution, donate or not donate to a cause favored by the legislator, or provide or not provide a thing of value; 9:27:48 AM MS. MOSS moved on to the next definition on page 7, lines 26-28, of Version S, which read as follows: (18) "constituent service" means assistance, including representation other than legal representation and advice other than legal advice, that is provided by a legislator or a legislator's staff to a constituent; MS. MOSS explained that the language in the original bill version stipulated that the constituent would be "a constituent of the legislator", but that the words "of the legislator" were deleted in the crafting of Version S. She said, "As long as it is a legislative purpose, it doesn't matter where the constituent lives." 9:28:59 AM REPRESENTATIVE SEATON interpreted the definitions of "constituent" and "constituent service" - especially if the word "natural" were to be removed - to mean that anybody who wants a legislator to work on an issue is that legislator's constituent. MS. MOSS responded that that is the intent of the bill sponsor. REPRESENTATIVE SEATON questioned if that would mean any person - not limited to those in Alaska. MS. MOSS answered, "Yes, as long as ... the benefit to that person or corporation is no greater than the benefit of anyone in that same class." REPRESENTATIVE SEATON indicated that the changes pointed out and discussed thus far would make the language very broad. 9:32:05 AM REPRESENTATIVE GRUENBERG said he thinks it is important that legislators are allowed to exercise their responsibilities, as long as it's done honestly. 9:33:16 AM MS. MOSS talked about legislative purpose and the role of the Ethics Committee to determine whether or not "you've gone too far." 9:33:51 AM MS. ANDERSON said when she speaks to legislative offices about constituent service, she tells them that they are the people who help constituents through a process - not to do the process for them. She indicated that the language discussed thus far would allow legislators to "work on some of those other issues," while still putting constraints on legislative office, based on other parts of the ethics code. 9:35:01 AM REPRESENTATIVE GRUENBERG said he likes the language of paragraph (17) on page 7, without the word "natural". He talked about California law, the Constitution of the United States, and a term called "long-arm statute." He said the aforementioned language would allow legislators to represent folks "to the extent permitted under the state constitution." He opined that that is a great idea, because it preserves the separation of powers and allows legislators to do their work. MS. MOSS continued to the next definition, the term "legislative purpose", which appears on page 7, lines 29-30, in Version S, and read as follows: (19) "legislative purpose" means a goal of a legislative action or a constituent service; MS. MOSS noted that the original bill specifies that the constituent service would be one "that is a primary goal or, when measured against other goals of the legislative action or constituent service, is a substantial goal". She said the bill sponsor feels that the language in Version S is enough. MS. MOSS said the definition of "private benefit" has been changed in Version S to read as follows: (21) "private benefit" means a financial benefit to a person as a result of a legislative, administrative, or political action of which financial benefit to that person in particular is a substantial goal and that is greater than the financial benefit of the legislative, administrative, or political action to a substantial class of persons to which the person belongs by law, choice, legal entitlement, legal privilege, profession, occupation, industry, or region. MS. MOSS explained that this language follows the premise that the benefit "does not exceed the same benefit that would be applied to any other person in that class." Constituent services, she said, usually take place when something wrong has happened within an agency that has cost the constituent a right or entitlement, and it is the legislator's duty to attempt to correct that wrong. She offered examples. Ms. Moss mentioned House Bill 53 - the Family Rights Act - which she said was brought about as a result of issues brought to legislators regarding Child In Need of Aid laws that needed to be fixed. She concluded, "If we're taking what goes wrong with government and making it right through legislation, then what we're doing with that constituent definitely has a legislative purpose." 9:39:27 AM MS. ANDERSON expressed concern about the word "financial" in the definition of "private benefit". She explained that there is already a single definition for the following: "anything of value"; "benefit"; and "thing of value". She continued as follows: That talks about whether it's tangible or intangible, and it also says "that could reasonably be considered to be a material advantage or material worth, use, or service to the person to whom it is conferred." And the terms are intended to be interpreted broadly and encompass all matters that the recipient might find sufficiently desirable to do something in exchange for. MS. ANDERSON clarified that she is concerned there could be a conflict between the definition that is being proposed for "private benefit" and the definition that already exists for "benefit". She suggested that the word "financial" be removed [from page 2, lines 2, 3, and 4], because then the language "private benefit" would be a further qualification based on the established meaning of "benefit." MS. MOSS said the sponsor would have no problem with that recommendation. 9:41:40 AM REPRESENTATIVE SEATON interpreted the combined language of (18) and (19) to mean "the goal of a constituent or corporation that has any interest in the state of Alaska." He added, "I mean we might as well throw the whole thing out, because we're saying that you can basically do anything for anybody, and not only what you do, but as long as it accomplishes their goal." 9:43:05 AM MS. MOSS responded that that is not the intent at all. She reiterated that the benefit for one cannot be more than for any person in that class. She said this does not mean that a legislator can solicit a contract for a person or corporation; it means if something goes array with state government that results in personal loss - that is a legislative purpose. REPRESENTATIVE SEATON said he understands the intent but is just looking at the wording. He clarified that: the proposed language under paragraph (19) defines "legislative purpose" as the goal of constituent service; the proposed language under paragraph (18) defines "constituent service" as including representation provided by the legislature or legislative staff to a constituent; and "constituent" has been defined as anyone who has any interest in anything to do with the state of Alaska. He added, "And it's their goal - not the actual service provided." He said he interprets that to mean the goal of any constituent. 9:44:39 AM MS. MOSS replied that the goal of any one constituent is not the goal of a class of people. She said she thinks what Representative Seaton is describing is an independent goal of a person versus the goal that could be shared by a class of people. 9:45:02 AM MS. ANDERSON concurred with Representative Seaton's remark that "it's a goal of constituent service." She suggested that the proposed language could be changed to: "legislative purpose means a goal of legislative action or providing constituent service," because constituent service is not really a goal, but something to be provided. 9:45:44 AM REPRESENTATIVE SEATON said he thinks the wording needs to be clarified. MS. ANDERSON concurred. 9:46:07 AM MS. MOSS cited the definition of legislative action, which read as follows: a conduct related to the development, drafting, consideration, sponsorship, enactment or defeat, support or opposition to or of a law, amendment, resolution, report, nomination, or other matter affected by legislative action or inaction. 9:47:12 AM REPRESENTATIVE WILSON asked for clarification of Ms. Anderson's latest recommendation. MS. ANDERSON said she recommends changing the language in paragraph (19), on page 7, lines 29-30 [text provided previously], to read as follows: (19) "legislative purpose" means a goal of a legislative action or providing constituent service; MS. ANDERSON said she agrees with Representative Seaton that instead of saying legislative purpose is a goal of a constituent service, the language should convey that legislative action is a goal of legislative action or constituent service, which would clarify that legislative purpose includes constituent service, which has not occurred in statute before. MS. MOSS said that makes sense. The committee took an at-ease from 9:48:13 AM to 9:50:19 AM. 9:50:24 AM REPRESENTATIVE GRUENBERG recommended that a subcommittee be formed to address HB 193. CHAIR LYNN concurred. 9:51:05 AM CHAIR LYNN appointed Vice Chair Seaton, Representative Gruenberg, and Representative Johnson to a subcommittee. 9:52:23 AM MS. MOSS returned to the sectional analysis of HB 193. She directed attention to Section 1 of Version S, [which would amend AS 24.60.030(i)]. Ms. Moss reviewed that once a constituent has filed an official appeal and has asked for an administrative hearing, the legislator and legislative staff back away from the issue. The proposed change to that rule would be "unless the legislator or legislative employee is representing another person in the case for compensation and subject to AS 24.60.100". 9:53:22 AM REPRESENTATIVE GRUENBERG remarked that it is possible that somebody could be providing representation, for example, for an accountant. He told Ms. Moss he thinks the language is great. 9:54:03 AM MS. MOSS moved on to Section 2 of Version S, [which would amend AS 24.60.080(a)]. Ms. Moss noted that Section 2 addresses gifts. She said the proposed change would be in regard to charitable events and tickets. She indicated that [the Ethics Committee] would like to allow the gift of a ticket for a charitable event, but with a limit on that gift of $250. MS. MOSS addressed Section 3 of Version S, [which would amend AS 24.60.080(c)]. She said the proposed change is on page 5, [lines 3-5], and would allow a legislator or legislative employee to accept a ticket to a charity event worth over $250 from a person who is not a lobbyist, an immediate family member of a lobbyist, or acting on behalf of lobbyist. Section 4, she explained would [amend AS 24.60.080(d)] to require the legislator or legislative employee who receives the ticket to the charity event worth over $250 to disclose the receipt of that gift. MS. MOSS said Section 5 would [amend AS 24.60.105] by adding language that would clarify that if a disclosure is against any law - federal or state - then that disclosure would not have to happen. MS. ANDERSON offered an example. 9:55:44 AM REPRESENTATIVE GRUENBERG said he strongly supports that language, because it would protect the right to privacy for people involved in family law. 9:56:03 AM MS. MOSS, in response to a question from Representative Wilson regarding the proposed change in Section 3, clarified that any ticket received to a charity event that was valued under $250 would not have to be reported. MS. MOSS continued to Section 6, which she said would [amend AS 24.60.130(f) by implementing a $150 a day compensation for public members of the Select Committee on Legislative Ethics while they are in meetings. MS. ANDERSON, in response to a question from Representative Seaton, regarding Section 5, explained that a person refraining from making a disclosure because doing so would violate the United State Constitution, the Constitution of the State of Alaska, or other state or federal law, would give the Ethics Committee, in writing, the reason he/she will not make the disclosure. The committee would "look for the law" to determine that the issue is confidential by some other statute. REPRESENTATIVE SEATON asked Ms. Anderson to provide the House State Affairs Standing Committee with list of known confidentialities, such as real estate disclosures, so that the committee knows the parameters. 9:58:29 AM REPRESENTATIVE JOHNSON offered his understanding that the Constitution of the State of Alaska guarantees everyone the right to privacy; therefore, he asked if that would mean a person could choose to hold private anything he/she wished. MS. MOSS said she would have to ask Legislative Legal and Research Services for the answer to that question, but said her intuition is that the answer is no. She said information that is by law confidential would remain confidential. REPRESENTATIVE JOHNSON said a person's salary is not made confidential by law, but rather is confidential through the policy of a company. However, he said he thinks that would be covered under the Constitution of the State of Alaska as a privacy issue. REPRESENTATIVE GRUENBERG proffered that there are a series of cases on that issue, and the supreme court, in at least three cases, has "delineated the contours of disclosure in these circumstances." He added, "It's not just your salary's confidential; they haven't gone that far." 9:59:45 AM MS. MOSS concluded the sectional analysis, by discussing Section 7, [which would amend AS 24.60.130(n)]. She noted that Section 7 proposes that an alternate public member be allowed on the Ethics Committee. Furthermore, it would provide that if an alternate were to start a proceeding, he/she would finish the proceeding. 10:00:26 AM CHAIR LYNN appointed Representative Seaton as chair of the subcommittee. 10:01:06 AM TERRY L. THURBON, Chief Administrative Law Judge, Office of Administrative Hearings, Department of Administration, stated that her comments are entirely confined to Section 1 of the bill. She said the goal of the bill, to make a brighter line to limit inappropriate contacts, is laudable. However, the way the bill and committee substitute were originally drafted does not preserve two important things: one, the ability of a legislator or legislative employee to participate in an administrative adjudication as a party or a witness without running afoul of the ethics laws; and, two, the solution to inadvertent ex parte contacts, which is in the subparagraph to the original provision, which was put into law initially when the Office of Administrative Hearing was created in 2004. JUDGE THURBON said she has discussed concerns with Representative Seaton and Ms. Moss at much greater length than with Ms. Anderson, and she offered her understanding that there may be an amendment forthcoming, perhaps during the bill's hearing before the House Judiciary Standing Committee or perhaps as a result of the meeting of the newly appointed subcommittee. CHAIR LYNN suggested the issues brought forth by Judge Thurbon could be addressed in the subcommittee. [REPRESENTATIVE GRUENBERG] acknowledged yes. JUDGE THURBON stated, "With that in mind, I don't think I need to add anything else." [HB 193 was held over, with the objection to the proposed committee substitute (CS), Version 26-LS0656\S, Wayne, 3/23/09, left pending.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| 01 3-12-09 Blank CS for HB 73 Version E.pdf |
HSTA 3/24/2009 8:00:00 AM |
HB 73 |
| 01 HB0123A.pdf |
HSTA 3/24/2009 8:00:00 AM |
HB 123 |
| 02 3-20-09 CS HB 73 Sponsor Statement Version E Fire.doc |
HSTA 3/24/2009 8:00:00 AM |
HB 73 |
| 03 Fiscal for Firefighter CSHB073-DOA-DMV-03-16-09.pdf |
HSTA 3/24/2009 8:00:00 AM |
HB 73 |
| 04 HB 73 Firefighter EMS Support Letter-emails.pdf |
HSTA 3/24/2009 8:00:00 AM |
HB 73 |
| 02 HB 123 Sponsor Statement.pdf |
HSTA 3/24/2009 8:00:00 AM |
HB 123 |
| 03 HB123-DHSS-BHA-03-23-09.pdf |
HSTA 3/24/2009 8:00:00 AM |
HB 123 |
| 04 HB123-DHSS-SSPC-03-23-09.pdf |
HSTA 3/24/2009 8:00:00 AM |
HB 123 |
| 05 HB 123 Statewide Suicide Prevention Council.pdf |
HSTA 3/24/2009 8:00:00 AM |
HB 123 |
| 01 HB0193A.pdf |
HSTA 3/24/2009 8:00:00 AM |
HB 193 |
| 02 HB 193 Bill Packet.pdf |
HSTA 3/24/2009 8:00:00 AM |
HB 193 |
| 03 HB93-LEG-ETH-03-23-09.pdf |
HSTA 3/24/2009 8:00:00 AM |
HB 93 |
| 05 Add'l support HB 73.pdf |
HSTA 3/24/2009 8:00:00 AM |
HB 73 |
| 06 Support Letter AARP HB 123.pdf |
HSTA 3/24/2009 8:00:00 AM |
HB 123 |
| 06 Add'l support HB 73.pdf |
HSTA 3/24/2009 8:00:00 AM |
HB 73 |
| CS for HB 73 STA Version S.pdf |
HSTA 3/24/2009 8:00:00 AM |
HB 73 |