Legislature(2021 - 2022)BELTZ 105 (TSBldg)
02/25/2021 03:30 PM COMMUNITY & REGIONAL AFFAIRS
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SB 15-OPEN MEETINGS ACT; PENALTY 3:31:54 PM CHAIR HUGHES announced the consideration of SENATE BILL NO. 15 "An Act relating to the Open Meetings Act; and establishing a civil penalty for violations of the open meeting requirements by members of governmental bodies." She asked Melodie Wilterdink to introduce the bill. 3:33:31 PM MELODIE WILTERDINK, Staff, Senator Mia Costello, Alaska State Legislature, Juneau, Alaska, introduced SB 15 on behalf of the sponsor, with a PowerPoint that is embodied in the sponsor statement: The Open Meetings Act requires that all meetings of an Alaska governmental body of a public entity be open to the public, unless exempt by statute (the Legislature and Judiciary are exempt). Despite the challenges of public gathering brought on by COVID-19, it is essential that elected officials continue to abide by the Open Meetings Act and hold meetings that are available to the public. During the summer of 2020, residents of Anchorage tried repeatedly to attend and testify at assembly meetings in person, but to no avail. The Assembly capped attendance at 15 people, preventing anyone but members, staff, and the press from attending. Senate Bill 15 would establish a civil penalty of up to $1,000 for elected or appointed members of governmental bodies who violate the Open Meetings Act. The purpose of Senate Bill 15 is to encourage the continuation of open public meetings, despite current and future challenges. In 1965, the late Senator Ted Stevens then Representative Stevens introduced House Bill 170, "An Act requiring that the meetings of agencies of the state and its subdivisions be open to the public with certain exceptions," which we now know as the Open Meetings Act. His original bill included a fine of up to $1,000 for elected officials who violated the Act. She noted that many other states attach various penalties to violations of the Open Meetings Act. She directed attention to the comments on slide 4 from Anchorage residents when they felt the Anchorage Assembly was quelling their opportunity to speak. The slide read as follow: The Assembly used COVID as their excuse to bar the public from the meeting. In my opinion, a fine might discourage them from a repeat. - Mary Barr, resident of District K I personally don't understand how the Anchorage Assembly can unilaterally decide how the money is spent without the input from the people that they are appointed to represent. Rose Hubbard, resident of District H It was extremely frustrating that we were not allowed to go in ? It was a quick and easy way of shutting us out, not having to listen to us. Christine Hill, resident of District L 3:35:47 PM SENATOR WILSON asked if the bill changes the Open Meetings Act to apply to legislators. MS. WILTERDINK answered no; the legislature is held to the Uniform Rules. To change whether legislators receive fines for violating similar rules in the Uniform Rules would require a separate piece of legislation or a resolution. SENATOR GRAY-JACKSON referenced the first quote and said she knows most of the assembly members and does not believe they used COVID-19 as an excuse. CHAIR HUGHES asked Ms. Wilterdink if she looked back at any of the conversations when Representative Stevens had the Open Meetings Act before the legislature and why he removed the penalty from the initial bill. MS. WILTERDINK answered she was not sure because not all the committee meeting notes were unavailable. CHAIR HUGHES asked her if she had data from other states on the number of Open Meetings Act violations and correlating penalties from mild to severe. MS. WILTERDINK answered no, but she would follow up with the information. CHAIR HUGHES asked her if there was a mechanism to collect the penalties indicated in the legislation. MS. WILTERDINK answered yes. She explained the plan is to have the Alaska Public Offices Commission (APOC) collect the penalties. CHAIR HUGHES asked Heather Hebdon with APOC what it would entail for APOC to collect the penalties. 3:38:59 PM HEATHER HEBDON, Executive Director, Alaska Public Offices Commission, Department of Administration, Anchorage, Alaska, stated as far as collecting the penalty, the legislation is not clear how APOC would determine a violation occurred. They do not have a mechanism to identify a violation or to determine how a violation would be presented to APOC. APOC not only does not regulate the Open Meetings Act, it is subject to the Open Meetings Act so the legislation presents a question of whether there would be a conflict of interest in regulating the law. CHAIR HUGHES stated the committee might have some things to work through, but APOC first needs a mechanism. Secondly, the legislature would have to give APOC the authority to deal with the Open Meetings Act since the commission does not have the prescribed duties at this point. She asked if those were the two items she identified. 3:40:42 PM MS. HEBDON answered yes. CHAIR HUGHES asked Ms. Wilterdink if she and the sponsor had considered an amendment or committee substitute to address those points. MS. WILTERDINK answered yes; the sponsor has an amendment that would designate APOC for fine collections. She said her understanding is APOC would follow a similar process to the public complaint process where somebody brings a complaint about an elected official and then it goes through the APOC process where the commission does an investigation on both sides followed by a recommendation and then a hearing. SENATOR WILSON asked if APOC would work out the regulatory language and process for fee collection should SB 15 pass. 3:42:02 PM MS. HEBDON answered APOC currently does not have the statutory authority to determine a violation of the Open Meetings Act. Without statutory authority, she did not know if the regulatory process would be sufficient. SENATOR WILSON asked if the commission would go through the regulatory process to collect fines if the committee were to amend the bill to give APOC the statutory authority. MS. HEBDON replied she could not speak to an amendment she had not seen, but if APOC had the statutory authority it would make sense to then go through the regulatory process to iron out details. She added APOC expects this would have a significant fiscal impact on the commission. CHAIR HUGHES asked if that was due to a tremendous number of violations. She said she thinks people would be on their toes and violations would not be very frequent if SB 15 passed. She asked her if SB 15 would be a lot of work for APOC, not just the development of the regulations, but also because of the large number of incidents the commission would receive in a year. 3:43:47 PM MS. HEBDON answered because APOC does not currently have the regulatory authority, the commission does not have any foundational knowledge as to how many violations might occur. Because of the definition of a governmental body, the legislation would have far-reaching impacts all the way down to local community councils. Given the size of the agency and what the commission is currently responsible for, it is unrealistic to think they could competently regulate this. She reiterated it is unclear how these violations would be identified. CHAIR HUGHES said she had not thought about the legislation reaching down to the community council level, because that means it would apply to hundreds if not thousands. She asked Sara Chambers if she knew how many state and local officials are in the state. 3:45:26 PM SARA CHAMBERS, Director, Division of Corporations, Business and Professional Licensing, Department of Commerce, Community, and Economic Development, Juneau, Alaska, replied she did not know but she would refer the question to the director of the Division of Community and Regional Affairs. MS. CHAMBERS noted she was responsible for the 21 licensing boards. CHAIR HUGHES asked how the bill would apply to the licensing boards. MS. CHAMBERS answered the division has 21 boards, appointed by the governor and confirmed by the legislature, that manage all governing functions for half of the licensing programs. Since the boards fall under the definition that is in the law as a public official, they would be subject to a fine. The department's concern is that board members are volunteers and finding enough volunteers to meet certain criteria is already difficult. The bill would be another deterrent and risk that volunteers would take when they consider whether to serve the state. SENATOR GRAY-JACKSON noted that by charter the Municipality of Anchorage Assembly is responsible for the 38 community councils it established. She suggested making the Anchorage Assembly responsible for identifying and fining those community councils for violations of the Open Meetings Act. 3:47:35 PM CHAIR HUGHES asked Ms. Chambers if boards and commission are subject to the Open Meetings Act. MS. CHAMBERS answered yes. CHAIR HUGHES commented on the informal nature of community council meetings and asked Ms. Wilterdink if the sponsor intended the legislation to go to the community council level. MS. WILTERDINK answered yes, the sponsor intended the bill to cover everybody covered by the Open Meetings Act. The exceptions are the legislature and the judiciary. CHAIR HUGHES asked Ms. Wilterdink to provide the sectional analysis for SB 15. 3:49:00 PM MS. WILTERDINK read the sectional analysis for SB 15: Section 1 AS 44.62.310(h), page 1, lines 4-6, is amended to define the terms "knowingly" and "public official." Under this section, "knowingly" has the meaning given in AS 11.81.900(a)(2), "public official" has the meaning given in AS 39.50.200(a)(9). Section 2 Page 1, lines 7-10, is amended to add a civil penalty of up to $1,000 for elected or appointed members of a governmental body who knowingly attend a meeting that violates the Open Meetings Act. Section 3 Page 1, lines 11-14, and page 2, line 1, it provides that the penalties added by this bill apply to offenses occurring on or after the effective date of this Act. 3:50:13 PM CHAIR HUGHES asked how the two statutory references define the terms "knowingly" and "public officials." MS. WILTERDINK answered her general understanding is that that "public official" effectively is everybody who is not in the legislature and not in the judiciary. The definition of "knowingly" is as follows: A person acts knowingly with respect to conduct or to a circumstance described by a provision of law defining an offense when the person is aware that the conduct is of that nature or that the circumstance exists. When knowledge of the existence of a particular fact is an element of an offense, that knowledge is established if a person is aware of a substantial probability of its existence, unless the person actually believes it does not exist. A person who is unaware of conduct or a circumstance of which the person would have been aware had that person not been intoxicated, acts knowingly with respect to that conduct or circumstance. 3:52:03 PM SENATOR GRAY-JACKSON noted that the Municipality of Anchorage has its own ethics code and commission to address violations of the Open Meetings Act. She asked how that works with this bill. MS. WILTERDINK answered she would look into it and follow up with the answer. SENATOR GRAY-JACKSON added that the Municipality of Anchorage also has a reprimand in code for violations, and how that works with the bill should also be investigated. CHAIR HUGHES opined that was important information to have on the record. She offered her understanding that some municipal officials raised this concern with the sponsor. She asked if they filed a complaint through the Municipality of Anchorage. MS. WILTERDINK replied she had not seen complaints to that effect. She has seen some concerns about the bill that she was happy to share with the committee. 3:54:35 PM CHAIR HUGHES held SB 15 in committee.