Legislature(2021 - 2022)BELTZ 105 (TSBldg)


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03:32:24 PM Start
03:33:00 PM SB15
04:10:53 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Bills Previously Heard/Scheduled TELECONFERENCED
Moved CSSB 15(CRA) Out of Committee
-- Public Testimony --
**Streamed live on AKL.tv**
                SB 15-OPEN MEETINGS ACT; PENALTY                                                                            
3:33:00 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."                                                                                                
3:34:29 PM                                                                                                                    
CHAIR HUGHES opened public testimony on SB 15.                                                                                  
3:35:00 PM                                                                                                                    
DARREL  W.  HESS,   Municipal  Ombudsman,  Municipal  Ombudsman's                                                               
Office, Municipality  of Anchorage, Anchorage,  Alaska, testified                                                               
in opposition to  SB 15. He asked committee members  who will own                                                               
the statute because the Alaska  Open Meetings Act (OMA) currently                                                               
is civil  enforcement. A person who  is aggrieved has to  file in                                                               
superior court,  it is  a self-serve civil  remedy much  like the                                                               
Alaska Landlord and Tenant Act.                                                                                                 
He questioned which department will  own, enforce, and assume the                                                               
associated  cost for  the  law. He  noted the  fines  are not  to                                                               
exceed $1000,  but he wondered  who will determine the  amount of                                                               
the fine, and  what factors or analysis will be  used to make the                                                               
determination.   Governmental    bodies   currently    have   the                                                               
opportunity to  fix their oversight by  way of a do-over,  but he                                                               
questioned whether  members of governmental bodies  will be given                                                               
the chance  to correct  the oversight  before fines  are imposed.                                                               
The OMA currently makes distinctions  between advisory bodies and                                                               
those that have  the authority to make policy or  decisions for a                                                               
governmental   entity.  However,   he   questioned  whether   the                                                               
distinctions would factor into consideration of any fines.                                                                      
MR. HESS  said based on  the meaning  of "public official"  in AS                                                               
39.50.200(a)(9),  the  provision  applies  to  all  uncompensated                                                               
volunteer  members of  local government  boards and  commissions,                                                               
service area  boards, and road  service area boards. He  noted he                                                               
is concerned the  change from the bill  would discourage citizens                                                               
from coming forward  and volunteering to do their  civic duty. He                                                               
pointed out most alleged OMA  violations that he has investigated                                                               
over the  past nine years were  related to lack of  proper public                                                               
He  said  the  legislation  would be  difficult  to  enforce  and                                                               
costly. The  meaning of "knowingly"  in the statute is  very hard                                                               
to prove. He said given  his experience investigating alleged OMA                                                               
violations,  SB 15  appears  to  be a  solution  in  search of  a                                                               
problem. The cost associated  with implementation and enforcement                                                               
of the  new statute  would far outweigh  any tangible  benefit to                                                               
the public.                                                                                                                     
3:38:09 PM                                                                                                                    
MARIO  BIRD, Attorney,  Alaskans  for  Open Meetings,  Anchorage,                                                               
Alaska, testified  in support of SB  15. He said he  will mention                                                               
some  of the  wonderful things  about the  OMA policies  that the                                                               
legislature has  put into place.  AS 44.62.312 states that  it is                                                               
the  intent of  the law  that the  actions of  those governmental                                                               
units  be taken  openly,  that their  deliberations be  conducted                                                               
openly; SB  15 is going  to encourage local  government officials                                                               
to do  this. Subsection  4 in  the statute  does not  give public                                                               
servants the  right to decide  what is good  or not good  for the                                                               
people to know. The statute is a great policy.                                                                                  
He noted when  the statute was enacted, many people  in the state                                                               
bureaucracy testified  against it. The legislatures  included the                                                               
statute  and when  the 1985  teleconferencing amendments  came in                                                               
the policy remained  intact. At that time, Robin  Taylor, who was                                                               
a  state   representative,  an  administrative  law   judge,  and                                                               
attorney reminded  members of  the body of  the need  to approach                                                               
boards,  commissioners, and  legislators in  person, and  that in                                                               
person testimony  is vital to the  OMA; that is much  of what the                                                               
Alaskans for Open Meetings stand for.                                                                                           
MR. BIRD explained in addition  to Senator Stevens in 1966 trying                                                               
to  put in  a  civil  penalty for  local  legislators (not  state                                                               
legislators) who break  the OMA, Dave Donley said  the same thing                                                               
in the  Judiciary Committee  in 1993.  He referenced  the minutes                                                               
from Mr. Donley's testimony as follows:                                                                                         
     One  of the  big flaws  in the  law right  now is  that                                                                    
     there  is  no   individual  responsibility  for  public                                                                    
     officials,  there  is  not recourse  against  them  for                                                                    
     violating the law.                                                                                                         
He said  the lineage  of SB  15 follows  what Senator  Donley put                                                               
forward  and  what  Representative   Stevens  said  in  1966.  He                                                               
summarized, "We  need to incentivize local  governments to follow                                                               
the law."                                                                                                                       
3:40:25 PM                                                                                                                    
PETE  PETERSON, representing  self, Anchorage,  Alaska, testified                                                               
in  opposition to  SB 15.  He noted  he currently  serves on  the                                                               
Anchorage  Assembly. He  explained  his intent  is  to provide  a                                                               
prospective  on open  meetings requirements,  since  he has  been                                                               
working  under those  rules on  the assembly  for the  last seven                                                               
years.  He  added  he  previously  served  in  the  Alaska  State                                                               
Legislature.  There  is a  learning  curve  when going  from  the                                                               
legislature  to  the assembly.  Legislators  could  make as  many                                                               
appointments  as they  wanted and  speak  with their  legislative                                                               
colleagues about bills. However,  assembly members can only speak                                                               
with two different assembly members on an item.                                                                                 
He said he experienced a situation  six years ago where he and an                                                               
assembly colleague went to lunch after  a work session and two of                                                               
his other  assembly colleagues entered  the restaurant.  He noted                                                               
he made his presence known to  avoid an OMA violation and his two                                                               
other  colleagues went  somewhere else.  However, if  he and  his                                                               
assembly   colleague  did   not  notice   their  other   assembly                                                               
colleagues, they  would not have  known their presence  and there                                                               
could have  been an OMA  violation. If SB  15 would have  been on                                                               
the books, they might have been subject to a $1000 fine.                                                                        
He noted the  Municipal Clerk's Office in Anchorage  does a great                                                               
job of  noticing meetings, but  it is  impossible for them  to be                                                               
aware of  all gatherings  where three  assembly members  might be                                                               
present.  Assembly members  are all  aware of  the open  meetings                                                               
requirements  because  it  is covered  in  the  initial  training                                                               
assembly  members  receive shortly  after  being  elected to  the                                                               
position. Assembly members take  the responsibility themselves to                                                               
make sure  there are no more  than three members at  any location                                                               
at the same time.                                                                                                               
MR. PETERSON stated  he believes that changing the  OMA by adding                                                               
a $1000 fine  would not only affect the assembly,  but also other                                                               
elected officials,  service area  boards, and  commissions around                                                               
the  state.  Many  people  who  are  on  boards  or  are  elected                                                               
officials  in  Alaska  are  not  paid or  they  receive  a  small                                                               
stipend. The change to the OMA to  add a fine for a violation can                                                               
serve to make it more  difficultif  not impossibleto  find people                                                               
to volunteer for board and  commission positions. Locating people                                                               
who are  interested in serving  on boards is  already challenging                                                               
and adding a fine will end up doing more harm than good.                                                                        
3:43:31 PM                                                                                                                    
KATE  VOGEL,   Anchorage  Municipal  Attorney,   Municipality  of                                                               
Anchorage, Anchorage,  Alaska, testified in opposition  to SB 15.                                                               
She said the legislation is  premised on the false narrative that                                                               
the Anchorage Assembly violated the  OMA in August 2020, and that                                                               
such conduct  needs stiffer  penalties. The  Anchorage Assembly's                                                               
COVID-19  precautions where  lawful and  are nearly  identical to                                                               
the  precautions  currently  on   display  at  the  Alaska  State                                                               
She said  in the  midst of the  pandemic, the  Anchorage Assembly                                                               
held open  meetings in  August 2020 that  were accessible  to the                                                               
public on  television and  live streamed  over the  internet. The                                                               
public  was  able  to  testify  in writing  and  by  phone.  Some                                                               
assembly  and administration  members attended  by phone,  others                                                               
were in assembly chambers in front  of the cameras and the press.                                                               
The   limits  on   in-person  attendance   in  favor   of  remote                                                               
participation  were challenged  by those  who disagreed  with the                                                               
outcome of the assembly votes.  A court has already preliminarily                                                               
rejected arguments that the Anchorage Assembly violated the OMA.                                                                
MS. VOGEL  stated SB  15 is  being proposed as  a tool  to punish                                                               
elected officials and the committee  should reject the attempt to                                                               
turn  the   OMA  into   a  partisan   tool.  The   OMA  currently                                                               
appropriately  prioritizes openness  in  government. The  central                                                               
focus of  the act is  on ensuring that government  actions comply                                                               
with the openness requirements.                                                                                                 
She explained under current law  there is a preferable remedy for                                                               
any  violation  which  is  to  give  the  governmental  body  the                                                               
opportunity to fix  the problem by revisiting  and reenacting any                                                               
infirm legislation in  an open to the public session.  A focus on                                                               
process rather than penalty  appropriately reduces the incentives                                                               
for individuals on the losing  side of a robust, political debate                                                               
to use the OMA to score political points.                                                                                       
MS. VOGEL  said when  the legislature enacted  the OMA,  the body                                                               
deliberately  rejected  the  option  to   impose  a  fine  for  a                                                               
violation and  that remains the  right decision. The  OMA already                                                               
has  [inaudible],  including  the  ability  to  file  litigation,                                                               
ethics complaints, and seek recall against officials.                                                                           
She  stated changing  the OMA  structure from  one that  promotes                                                               
remediation  and  openness in  meetings  to  one that  encourages                                                               
penalties  will   actually  disincentivize   the  ability   of  a                                                               
governmental  body   to  remediate  the  problem   by  having  an                                                               
individual liability for the officials  that make it difficult to                                                               
simply  have a  second meeting  that solves  the problem,  and it                                                               
will incentivize politicizing what  is otherwise a very important                                                               
and open law within Alaska.                                                                                                     
3:46:48 PM                                                                                                                    
NILS  ANDREASSEN, Executive  Director,  Alaska Municipal  League,                                                               
Juneau, Alaska,  testified in  opposition to SB  15. He  said the                                                               
Alaska Municipal League  (AML) has 164 members  who operate under                                                               
the  statutory requirements  already of  the OMA.  AML has  noted                                                               
that the bill has brought  applicability and in fact would impact                                                               
thousands  of local  elected officials,  committee or  commission                                                               
volunteers, and municipal employees.                                                                                            
He stated AML  wants to be clear that  Alaska's local governments                                                               
and public  officials adhere to  the laws.  AML has not  seen any                                                               
evidence  that  violations  occur  or regularly  occur,  nor  any                                                               
indication that in  fact this is a widespread problem  at all. He                                                               
questioned how  one justifies  a penalty  and law  for violations                                                               
that  are extremely  uncommon, and  justification is  even harder                                                               
when the body legislating a  penalty is itself exempted from that                                                               
same law.  The effect from  the bill will chill  participation in                                                               
local  processes, not  because these  processes violate  the law,                                                               
but  because of  the potential  risks to  individuals whose  sole                                                               
intent is to serve the public's interest.                                                                                       
MR. ANDREASSEN  said SB 15  does not  reflect the reality  of the                                                               
lawful  operations of  Alaska's  165 cities  and boroughs,  their                                                               
planning,  port and  harbor, public  safety commissions,  and the                                                               
thousands of Alaskans who have stepped  up to serve in some small                                                               
way for  the betterment  of their  communities. The  OMA balances                                                               
the  legislature's  interest  in a  transparent  and  accountable                                                               
process   for   the   state's   political   subdivisions,   while                                                               
encouraging public participation in those institutions.                                                                         
MR. ANDREASSEN  stated the  fact that violations  of the  OMA law                                                               
come with  undoing of  the action taken  make it  unreasonable to                                                               
act outside  of the law  already. The  addition of a  fine brings                                                               
into this  democratic process enough  uncertainty and risk  as to                                                               
dissuade  participation. AML  is  always happy  to volunteer  its                                                               
time to  serve as  invited testimony on  bills that  affect local                                                               
governments,  to  be available  for  questions  as the  committee                                                               
wrestles  with municipal  issues, and  to be  a resource  for the                                                               
Senate Community and Regional Affairs Committee.                                                                                
3:49:08 PM                                                                                                                    
VALERIE  MCKAY, representing  self, Anchorage,  Alaska, testified                                                               
in support  of SB  15. She  said the $1000  fine is  exactly what                                                               
needs to  happen because an  individual will not violate  the OMA                                                               
again.  She  noted there  were  internet  connection, video,  and                                                               
sound  issues  during the  noted  Anchorage  Assembly meeting  in                                                               
August 2020.                                                                                                                    
3:51:11 PM                                                                                                                    
NORM WOOTEN,  Director of Advocacy, Association  of Alaska School                                                               
Boards,  Juneau, Alaska,  testified in  opposition to  SB 15.  He                                                               
said the [Association of Alaska  School Boards] (AASB) is in full                                                               
support of the OMA. AASB  routinely gets 25-30 requests per month                                                               
from  school  boards and  school  districts  for questions  on  a                                                               
variety  of topics,  typically about  half of  those queries  are                                                               
about OMA.                                                                                                                      
He  stated  school boards  are  cognizant  of  OMA, are  wary  of                                                               
violating  the act,  and that  is the  reason they  ask for  AASB                                                               
assistance.  Additionally,   at  the  onset  of   COVID-19,  AASB                                                               
consulted  with   its  attorney  and  developed   processes  that                                                               
permitted digital  meetings while still complying  with OMA. AASB                                                               
held webinars to make certain  AASB boards would remain compliant                                                               
and  amended its  model  board  policy so  the  board could  make                                                               
changes and  ensure their policies  were also in  compliance with                                                               
OMA. School  boards clearly  understand their  responsibility for                                                               
compliance  with  OMA  and  take   appropriate  steps  to  ensure                                                               
He said his belief is that there  needs to be a clear purpose for                                                               
any new law and there is  no need for amending OMA to financially                                                               
and  personally threatened  volunteer  elected  officials with  a                                                               
civil  penalty of  up to  $1000, individuals  who are  doing good                                                               
work as  elected officials,  they are law  abiding, and  he finds                                                               
questioning their adherence to the law as disingenuous.                                                                         
3:53:03 PM                                                                                                                    
FRANK   MCCLEARY,   President,   Alaskans  for   Open   Meetings,                                                               
Anchorage, Alaska,  testified in support  of SB 15. He  stated he                                                               
thinks  there is  a certain  amount  of disingenuousness  because                                                               
everybody  is   equating  the  bill   with  the  issues   of  the                                                               
Municipality  of  Anchorage  (MOA),   but  the  two  are  totally                                                               
separate issues.                                                                                                                
He said the  courts will settle the lawsuit by  Alaskans for Open                                                               
Meetings with MOA to determine  whether there was any infraction.                                                               
However, what  became apparent is  the lack of consequence  and a                                                               
lack  of accountability  in the  public process  that leads  to a                                                               
certain degree of  contempt for the public. If there  is a law on                                                               
the  books and  people violate  that  law, there  should be  some                                                               
MR.   MCCLEARY  noted   Ted  Stevens   recognized  the   lack  of                                                               
consequence in the 1960s when he  tried to make an amendment with                                                               
some  financial penalties.  Fifty States  have open  meeting laws                                                               
that   have  varying   degrees  of   penalty,  including   fines,                                                               
misdemeanor  charges, felony  charges, amounts  of money  varying                                                               
from $50  to $50,000.  The legislature decides  what is  best for                                                               
Alaska  and not  what is  best for  the municipality,  government                                                               
employees, or  making their  jobs easier. The  public is  part of                                                               
the process, and their voices need to be heard.                                                                                 
MR. MCCLEARY stated  since MOA insists on putting  the lawsuit in                                                               
the middle  of the matter,  the penalties for [Alaskans  for Open                                                               
Meetings] in filing a lawsuit  are tremendous, the burden is huge                                                               
to raise money. The case will  obviously go to the Alaska Supreme                                                               
Court  and the  law fees  for [Alaskans  for Open  Meetings] will                                                               
probably  approach $250,000.  [Alaskans  for  Open Meetings]  has                                                               
skin in  the game, but the  bureaucrats have no skin  in the game                                                               
because they  are not  paying for  the lawsuits.  Also, [Alaskans                                                               
for  Open  Meetings]  individual  members have  been  subject  to                                                               
lawsuit threats. He concluded, "accountability is everything."                                                                  
3:55:36 PM                                                                                                                    
EDWARD  MARTIN,   representing  self,  Cooper   Landing,  Alaska,                                                               
testified in  support of SB 15.  He said the fine  should be more                                                               
than $1000,; it should be $5000.  He noted there are also federal                                                               
laws  to affect  the actions  by  people trying  to do  something                                                               
outside of  the transparency and accountability  that takes place                                                               
when  individuals are  participating in  [open meetings].  People                                                               
serving  on  boards  and commissions  are  public  servants.  The                                                               
legislation sends  a strong  message to  anyone who  would rather                                                               
have a closed meeting. All public  meetings should be in the open                                                               
eye of the public.                                                                                                              
MR.  MARTIN  referenced  a U.S.  code  regarding  deprivation  of                                                               
rights. He questioned  if any violation in the OMA  would cause a                                                               
violation  under the  federal code,  particularly if  a law  were                                                               
passed. He added an opening  meeting is generally determined by a                                                               
group of individuals.  An OMA violation will not  happen again if                                                               
the committee passes the legislation.                                                                                           
3:58:09 PM                                                                                                                    
CECILIA   DONELSON,   representing   self,   Anchorage,   Alaska,                                                               
testified  in support  of  SB  15. She  said  the  penalty for  a                                                               
violation  should  be bigger  than  $1000.  Government should  be                                                               
open,  and  individuals should  look  their  people in  the  eye,                                                               
people who are able to voice their opinions.                                                                                    
3:59:03 PM                                                                                                                    
DENISE ALLEN, representing self,  Anchorage, Alaska, testified in                                                               
support of  SB 15. She stated  the MOA Assembly was  in the wrong                                                               
when they  closed their August  2020 meetings and  allowed expert                                                               
testimony. She  said a $1000  fine is not enough  because [public                                                               
officials]  will just  vote  themselves a  raise  to cover  their                                                               
fine.  SB  15 lets  government  officials  know that  the  people                                                               
demand open government.                                                                                                         
3:59:48 PM                                                                                                                    
CHAIR HUGHES closed public testimony on SB 15.                                                                                  
SENATOR GRAY-JACKSON  thanked everyone  for their  testimony. She                                                               
clarified  MOA salaries  for public  officials are  determined by                                                               
the  Salaries  and  Emoluments  Commission.  Individuals  do  not                                                               
determine their own salary.                                                                                                     
She  suggested committee  members review  comments in  the fiscal                                                               
note in  terms of not  just the cost,  and the comments  from Ms.                                                               
Hebdon,  Executive   Director  for  the  Alaska   Public  Offices                                                               
Commission (APOC). They are substantial.                                                                                        
CHAIR HUGHES asked her if she  would like to ask Ms. Hebdon about                                                               
the fiscal note for SB 15.                                                                                                      
SENATOR GRAY-JACKSON  asked Ms. Hebdon  to publicly make  some of                                                               
the  comments she  made  regarding the  fiscal  note because  her                                                               
comments are "pretty substantial."                                                                                              
4:01:45 PM                                                                                                                    
HEATHER  HEBDON,   Executive  Director,  Alaska   Public  Offices                                                               
Commission,  Department  of  Administration,  Anchorage,  Alaska,                                                               
testified in  opposition to SB  15. She said APOC  cannot support                                                               
SB 15 because  the legislation will politicize the  OMA more than                                                               
it  needs to  be. The  bill will  have a  far-reaching impact  on                                                               
assembly  members, elected  officials, and  many volunteer  board                                                               
and  commission members  who simply  want to  try to  serve their                                                               
She  stated APOC  also  thinks  the bill  will  result  in a  big                                                               
increase in  workload for the agency.  The bill is going  to be a                                                               
big cost to APOC and that  is why the commission submitted such a                                                               
significant fiscal note.                                                                                                        
CHAIR HUGHES  asked if APOC actually  met and voted to  oppose SB
MS. HEBDON  answered no; APOC has  not taken a position  on SB 15                                                               
and her remark was simply from a staff perspective.                                                                             
CHAIR HUGHES  pointed out  she said that  APOC could  not support                                                               
the bill. She asked her to  confirm that the APOC staff could not                                                               
support the bill.                                                                                                               
MS. HEBDON  answered yes. She  apologized and clarified  the APOC                                                               
staff does not  support the bill and APOC itself  has not taken a                                                               
position on the bill.                                                                                                           
SENATOR  MYERS commented  he finds  the comments  interesting. He                                                               
noted  the  committee  has occasionally  heard  that  the  reason                                                               
people do not run for office  is because of the various pieces of                                                               
regulation  that  APOC  is  required to  enforce.  He  stated  he                                                               
wonders if the committee needs to strip away anything else.                                                                     
4:04:16 PM                                                                                                                    
CHAIR  HUGHES  said  she  would  like  to  respond  to  Anchorage                                                               
Assembly  member  Pete  Peterson's testimony  regarding  a  story                                                               
about  a possible  OMA violation  in a  restaurant. She  said she                                                               
witnessed a  similar situation in  Palmer where a couple  of city                                                               
council members attended one of her  coffee chats and then one or                                                               
two other city council members stopped at the same restaurant.                                                                  
CHAIR HUGHES remarked that part  of Mr. Peterson's testimony does                                                               
seem to  address a part  of the  OMA statutes that  the committee                                                               
needs to address regarding people  sitting at different tables in                                                               
a restaurant where the intention is not to violate the OMA.                                                                     
CHAIR HUGHES  noted the  committee received  the history  of OMA,                                                               
and Ted  Stevens initially had  a penalty  in his bill.  She said                                                               
she  does find  it odd  when everything  else in  Alaska statutes                                                               
have  requirements  and  often  there  are  consequences  if  the                                                               
requirements  are not  met;  however, there  is  not one  offered                                                               
here. She said she does find  that odd, in fact, as the committee                                                               
was talking  about APOC.  If legislators do  not do  things right                                                               
there are penalties.  For that reason, she does like  the idea of                                                               
closing the loop on this.                                                                                                       
She  stated the  intent  is  not to  make  it  more difficult  or                                                               
discourage  people to  serve. Based  on  Mr. Wooten's  testimony,                                                               
those  that do  step  up and  serve  work hard  to  meet the  law                                                               
itself. However, at  some point the committee might  want to look                                                               
at the  OMA to see  if there  are some very  onerous requirements                                                               
the committee might  be able to fix so someone  would not have to                                                               
worry about being in a  restaurant and being in violation because                                                               
someone walks in.                                                                                                               
She noted the bill sponsor said the following:                                                                                  
   • Seventeen states have penalties for violation OMA laws                                                                     
   • Five states involve prison time                                                                                            
   • Four states have possible office removal                                                                                   
   • Four states have a misdemeanor for violating OMA laws                                                                      
   • Three states have fines or penalties                                                                                       
   • Two states invalidate actions taken during any period of                                                                   
4:07:42 PM                                                                                                                    
SENATOR  MYERS moved  to  report CS  for SB  15,  work order  32-                                                               
LS0176\G  from  committee  with  individual  recommendations  and                                                               
attached fiscal note(s).                                                                                                        
4:07:56 PM                                                                                                                    
CHAIR  HUGHES announced  there being  no objection,  CSSB 15(CRA)                                                               
moves  from the  Senate Community  and Regional  Affairs Standing                                                               

Document Name Date/Time Subjects
SB 15 Anchorage Municipal Attorney's Office Written Testimony.pdf SCRA 3/9/2021 3:30:00 PM
SJUD 3/17/2021 1:30:00 PM
SB 15
SB 15 Public Testimony- Support 3.9.21.pdf SCRA 3/9/2021 3:30:00 PM
SJUD 3/17/2021 1:30:00 PM
SB 15
SB 15 Public Testimony- Opposition 3.9.21.pdf SCRA 3/9/2021 3:30:00 PM
SJUD 3/17/2021 1:30:00 PM
SB 15