Legislature(2011 - 2012)BUTROVICH 205

04/15/2011 01:30 PM Senate JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Location Change --
+ Bills Previously Heard/Scheduled TELECONFERENCED
+= SB 89 LEGISLATIVE ETHICS ACT TELECONFERENCED
Heard & Held
+= SB 104 MANUFACTURED HOMES AS REAL PROPERTY TELECONFERENCED
Heard & Held
+= SB 98 BIOMETRIC INFORMATION FOR ID TELECONFERENCED
Moved CSSB 98(JUD) Out of Committee
                 SB  89-LEGISLATIVE ETHICS ACT                                                                              
                                                                                                                                
1:31:54 PM                                                                                                                    
CHAIR HOLLIS FRENCH  announced the consideration of  SB 89. [CSSB
89(STA), 27-LS0452\T was before the committee.]                                                                                 
                                                                                                                                
SENATOR JOHN COGHILL,  Sponsor of SB 89, stated  that this ethics                                                               
bill is a work in progress that  wound up in his hands. His chief                                                               
of  staff, Ms.  Moss, would  provide a  sectional analysis  after                                                               
which  he would  offer an  amendment. He  noted that  the current                                                               
version T removed some of the more contentious issues.                                                                          
                                                                                                                                
1:33:22 PM                                                                                                                    
RYNNIEVA MOSS, Chief  of Staff to Senator Coghill,  sponsor of SB
89, said  the only  changes in  Section 1 appear  on page  2. For                                                               
consistency with  AS 24.60.080, the phrase  "lawful gratuity" was                                                               
changed  to  "gift"  and  reference  to  the  compassionate  gift                                                               
statute, AS 24.60.075, was inserted.                                                                                            
                                                                                                                                
Section  2 attempts  to draw  a bright  line for  legislators and                                                               
staff  in dealing  with  constituents. It  says  that unless  the                                                               
legislator  is  an attorney,  the  legislative  office will  stop                                                               
giving assistance to a constituent  once the issue goes before an                                                               
administrative hearing  officer. Inadvertent ex parte  contact is                                                               
allowed.                                                                                                                        
                                                                                                                                
CHAIR FRENCH asked, if  he were to write a letter  on behalf of a                                                               
constituent  asking  for  a  fair hearing  on  a  permanent  fund                                                               
dividend  denial, if  the letter  would go  to an  administrative                                                               
hearing officer on the first level or to the department.                                                                        
                                                                                                                                
MS. MOSS  replied the  first level is  called an  informal denial                                                               
and at that stage he  could communicate with the department. Once                                                               
there's  a formal  denial  and a  request  for an  administrative                                                               
hearing, the legislator's office would need to step away.                                                                       
                                                                                                                                
CHAIR FRENCH asked for an example of  the point at which it is no                                                               
longer  acceptable for  a legislator  to act  in regard  to child                                                               
placement actions under the Office of Children's Services (OCS).                                                                
                                                                                                                                
MS.  MOSS replied  OCS has  worked with  legislative offices  all                                                               
during the process  even though it's actually a  court case. They                                                               
also  have a  legislative  liaison that  legislative offices  can                                                               
contact  directly.  An example  where  contact  would be  limited                                                               
beyond a  certain point would  be workers compensation.  Once the                                                               
issue reaches  the point of  having administrative  hearings, the                                                               
legislative office would have to  back away. With regard to child                                                               
support,  once the  matter  reaches the  point  of requesting  an                                                               
administrative hearing,  the legislative office can  no longer be                                                               
involved.                                                                                                                       
                                                                                                                                
1:36:43 PM                                                                                                                    
SENATOR  COGHILL  explained that  the  ethics  laws were  written                                                               
before  there  were administrative  law  judges  so this  was  an                                                               
attempt to clarify  the point at which a  legislative office must                                                               
step away  from a  constituent issue they'd  been working  on. He                                                               
noted that at one point  the Ethics Committee suggested a 10-hour                                                               
limit, but  he believes  this is  a better way.  It's okay  for a                                                               
legislative office to  help a constituent up to the  point of the                                                               
administrative decision,  but it's  not okay  to put  pressure on                                                               
the decision-maker.                                                                                                             
                                                                                                                                
CHAIR FRENCH  asked if legislators  could safely  send complaints                                                               
to a legislative liaison office  about the way their constituents                                                               
were being treated.                                                                                                             
                                                                                                                                
MS.  MOSS replied  she didn't  know  the answer,  but she  didn't                                                               
believe there was a protection under  the law. She added that the                                                               
biggest  problem  is  when  a   constituent  doesn't  inform  the                                                               
legislator or staff where they are in the process.                                                                              
                                                                                                                                
1:38:56 PM                                                                                                                    
CHAIR  FRENCH  asked if  the  ten-hour  provision was  an  ethics                                                               
opinion or in statute at one time.                                                                                              
                                                                                                                                
SENATOR COGHILL replied it was an ethics opinion.                                                                               
                                                                                                                                
CHAIR FRENCH asked if this would supersede that opinion.                                                                        
                                                                                                                                
SENATOR COGHILL answered yes.                                                                                                   
                                                                                                                                
SENATOR  WIELECHOWSKI  referred   to  the  workers'  compensation                                                               
example  and said  he reads  the bill  to say  that a  legislator                                                               
could call  a department director  to ask  about the status  of a                                                               
particular case.                                                                                                                
                                                                                                                                
MS. MOSS agreed.                                                                                                                
                                                                                                                                
SENATOR WIELECHOWSKI  asked for confirmation that  the legislator                                                               
couldn't contact the chief of adjudications.                                                                                    
                                                                                                                                
MS. MOSS replied  they could contact the person  that is handling                                                               
the workers' compensation case, but  not the hearing officer, the                                                               
attorney  for  the insurance  company  or  the attorney  for  the                                                               
constituent.                                                                                                                    
                                                                                                                                
SENATOR COGHILL added that the  idea was to keep legislators from                                                               
becoming  free   legal  advisors  unless  the   legislator  is  a                                                               
practicing attorney.                                                                                                            
                                                                                                                                
1:40:26 PM                                                                                                                    
MS.  MOSS clarified  that a  non-attorney can  handle a  workers'                                                               
compensation case, but once the  matter gets to an administrative                                                               
hearing  it's between  the constituent,  their attorney,  and the                                                               
division under challenge.                                                                                                       
                                                                                                                                
SENATOR WIELECHOWSKI asked where  it says the legislator couldn't                                                               
contact the attorney who represents the injured worker.                                                                         
                                                                                                                                
MS. MOSS replied  it doesn't say that specifically,  but once the                                                               
dispute goes  to a hearing  officer the legislative  office isn't                                                               
supposed  to contact  those parties.  Contacting a  constituent's                                                               
attorney would be considered ex parte contact.                                                                                  
                                                                                                                                
SENATOR WIELECHOWSKI asked where it says that in the bill.                                                                      
                                                                                                                                
MS.  MOSS replied  "ex parte"  is contacting  a party  in a  case                                                               
without going through the court.                                                                                                
                                                                                                                                
SENATOR WIELECHOWSKI said his understanding is different.                                                                       
                                                                                                                                
CHAIR FRENCH said he believes that  "ex parte" is between a party                                                               
and the judge without the other party being present.                                                                            
                                                                                                                                
SENATOR WIELECHOWSKI agreed.                                                                                                    
                                                                                                                                
SENATOR PASKVAN agreed,  and said the purpose  of that definition                                                               
of  "ex  parte"  is  to encourage  contact  between  the  parties                                                               
directly, but  while they're  trying to  work things  out neither                                                               
party can contact the judge without the other being present.                                                                    
                                                                                                                                
MS.  MOSS  added  that  the bill  also  requires  legislators  to                                                               
disclose any contact that is considered inappropriate.                                                                          
                                                                                                                                
1:42:51 PM                                                                                                                    
CHAIR FRENCH  summarized that  in this case  "ex parte"  would be                                                               
between a legislator and a  hearing officer, not a legislator and                                                               
an attorney representing the constituent.                                                                                       
                                                                                                                                
MS. MOSS  responded that when  she always asks  constituents that                                                               
contact  Senator Coghill's  office for  help if  they engaged  an                                                               
attorney.                                                                                                                       
                                                                                                                                
SENATOR WIELECHOWSKI  said he didn't  believe that  under current                                                               
law  or  if  this were  to  pass  that  it  would be  illegal  or                                                               
unethical for  a legislator to  contact a  constituent's attorney                                                               
to express concern about the timeliness of a hearing.                                                                           
                                                                                                                                
MS. MOSS said she appreciates having that on the record.                                                                        
                                                                                                                                
SENATOR COGHILL  recalled that the  administrative law  judge who                                                               
spoke to his office about two years ago had the same opinion.                                                                   
                                                                                                                                
CHAIR  FRENCH noted  that  Joyce Anderson  was  online to  answer                                                               
questions about ethics laws.                                                                                                    
                                                                                                                                
1:45:36 PM                                                                                                                    
MS.  MOSS  said Section  3  releases  the Ethics  Committee  from                                                               
having to compile disclosure form  statements, but it would still                                                               
have to maintain a record of  the forms that are available to the                                                               
public.                                                                                                                         
                                                                                                                                
Section  4  adds  "or  public  member of  the  committee"  to  AS                                                               
24.60.060(a), which  is the statute that  prohibits disclosure of                                                               
confidential information.                                                                                                       
                                                                                                                                
Sections  5 and  7  have  been reworded  to  make  it clear  that                                                               
legislators,  their   employees,  or  a  public   member  of  the                                                               
committee  may  not  accept  from   a  lobbyist  a  ticket  to  a                                                               
charitable event that is valued at more than $249.99.                                                                           
                                                                                                                                
SENATOR COGHILL added that it  also allows accepting a charitable                                                               
gift beyond that amount from  somebody other than a lobbyist, but                                                               
it must be reported and the event must be a sanctioned event.                                                                   
                                                                                                                                
MS. MOSS said  Section 7 changes the  reporting requirements from                                                               
30 days to  60 days for charitable gifts and  gifts of travel for                                                               
purposes of gaining legislative information.                                                                                    
                                                                                                                                
1:47:22 PM                                                                                                                    
SENATOR PASKVAN asked  if this changes what a  lobbyist may offer                                                               
to a legislator.                                                                                                                
                                                                                                                                
SENATOR COGHILL  answered no. It  changes charitable  events that                                                               
are specifically mentioned in statute.  The rewording attempts to                                                               
allow  a  charitable  gift  donation  from  people  who  are  not                                                               
lobbyists.                                                                                                                      
                                                                                                                                
1:48:44 PM                                                                                                                    
CHAIR  FRENCH observed  that it  was a  little confusing  to talk                                                               
about tickets  to a charitable  event in conjunction  with gifts,                                                               
and  asked   if  this   was  separate   from  the   general  gift                                                               
prohibition.                                                                                                                    
                                                                                                                                
MS. MOSS  responded it addresses  circumstances like  receiving a                                                               
ticket  to a  sanctioned charitable  event and  winning the  door                                                               
prize.                                                                                                                          
                                                                                                                                
SENATOR COGHILL  added that  a question came  up about  winning a                                                               
cruise at the "Thanksgiving in  March" event. In another instance                                                               
a legislator  was given a  gift from a  non-lobbyist to sit  at a                                                               
head  table,  which was  valued  at  more  than $400.  An  ethics                                                               
complaint was  lodged but  there was not  an ethical  problem. He                                                               
noted  that it  might  be a  problem if  it  wasn't a  sanctioned                                                               
event.                                                                                                                          
                                                                                                                                
MS.  MOSS explained  that  Section 8  allows  certain persons  to                                                               
request  a   waiver  from  disclosing   clients  or   making  any                                                               
disclosures that would violate state  or federal law or the state                                                               
or federal  constitution. The State  Affairs Committee  added the                                                               
language "or  a rule adopted  formally by a trade  or profession,                                                               
that state or  federal law requires the person  to follow." Thus,                                                               
certain  occupations  don't have  to  disclose  their sources  of                                                               
income from clients.                                                                                                            
                                                                                                                                
CHAIR  FRENCH asked  if it  is  an ethics  disclosure, an  Alaska                                                               
Public Offices Commission (APOC) disclosure, or both.                                                                           
                                                                                                                                
MS. MOSS replied it's an ethics disclosure.                                                                                     
                                                                                                                                
SENATOR   COGHILL  added   that  under   HIPPA  there   are  some                                                               
restrictions  on  confidentiality,  and there  was  some  concern                                                               
about  reporting  if  a  legislative  office  was  working  on  a                                                               
healthcare issue for a constituent.                                                                                             
                                                                                                                                
MS. MOSS said  Sections 9 and 13 were added  in the State Affairs                                                               
Committee,  and  state   that  if  someone  is   a  volunteer  or                                                               
educational trainee  for 30 days  they would be expected  to take                                                               
an ethics class.                                                                                                                
                                                                                                                                
Sections 10 and  11 make reference to the new  statute in Section                                                               
12.                                                                                                                             
                                                                                                                                
Section 12  is a  new section  of law  that deals  with alternate                                                               
members.  It adds  an alternate  for a  public member  and allows                                                               
them  to participate  in the  full proceeding  once they've  been                                                               
selected.                                                                                                                       
                                                                                                                                
SENATOR COGHILL said  it became apparent that it  would be easier                                                               
to  make  a  quorum  for  the public  members  if  there  was  an                                                               
alternate.  A  decision was  made  that  once the  alternate  was                                                               
engaged  in  a particular  ethical  question  they should  remain                                                               
until  the   conclusion.  That  is   true  for  the   public  and                                                               
legislative alternates.                                                                                                         
                                                                                                                                
1:53:42 PM                                                                                                                    
MS. MOSS said  Section 14 changes the  definition of "legislative                                                               
employee." It  clarifies that hourly  employees are  not included                                                               
and are not required to take ethics training.                                                                                   
                                                                                                                                
1:54:28 PM                                                                                                                    
SENATOR COGHILL observed that the  bill was a benign housekeeping                                                               
matter without  his amendment, which addresses  how to reasonably                                                               
and  properly  allow  legislators   to  participate  in  partisan                                                               
political activities  while on state travel.  Generally speaking,                                                               
most of the meetings that  legislators hold outside of Juneau are                                                               
held  in Anchorage  or Fairbanks.  Legislators  from those  urban                                                               
areas  may   attend  partisan   events  after   conducting  state                                                               
business,  but those  from out  of town  cannot. He  said he  was                                                               
trying   to  find   a   reasonable   solution  without   allowing                                                               
legislators to  use state money  to campaign. That's  the one-way                                                               
valve. "We  want them to  do one thing  nobly, and we  don't want                                                               
them to use it improperly."                                                                                                     
                                                                                                                                
1:56:37 PM                                                                                                                    
SENATOR COGHILL moved Amendment 1, labeled 27-LS0452\T.1.                                                                       
                                                                                                                                
                          AMENDMENT 1                                                                                         
                                                                                                                                
                                                                                                                                
     OFFERED IN THE SENATE                   BY SENATOR COGHILL                                                                 
          TO:  CSSB 89(STA)                                                                                                     
                                                                                                                                
     Page 1, line 7, following "instances;":                                                                                  
          Insert   "allowing  legislators   and  legislative                                                                  
     employees, in certain circumstances, to participate in                                                                   
     partisan political activity while on state travel;"                                                                      
                                                                                                                                
     Page 5, following line 26:                                                                                                 
          Insert new bill sections to read:                                                                                     
       "* Sec. 3. AS 24.60.030 is amended by adding a new                                                                   
     subsection to read:                                                                                                        
               (j)  Notwithstanding the limitations under                                                                       
          (a)(2),  (a)(4),  and  (c)  of  this  section  and                                                                    
          subject  to   other  state  or  federal   laws,  a                                                                    
          legislator  or  legislative  employee  who  is  on                                                                    
          state   travel   may   participate   in   partisan                                                                    
          political  activity, including  campaign activity,                                                                    
          if                                                                                                                    
                    (1)  the participation is incidental to                                                                     
          the purpose of the travel;                                                                                            
                    (2)  the legislator or the legislative                                                                      
          employee  does not  use or  authorize  the use  of                                                                    
          state resources to pay for the activity; and                                                                          
                    (3)  the legislator or legislative                                                                          
         employee does not participate in the activity                                                                          
                         (A)  during a normal workday                                                                           
               between 8:00 a.m. and 5:00 p.m., excluding                                                                       
               meal breaks;                                                                                                     
                         (B)  on a state or municipal                                                                           
               election day;                                                                                                    
                         (C)       during   the    30   days                                                                    
               immediately  preceding an  election in  which                                                                    
               the    participating   legislator    or   the                                                                    
               legislator   for   whom   the   participating                                                                    
               employee  works is  a candidate  for elective                                                                    
               office; or                                                                                                       
                         (D)  by fund raising for a                                                                             
               political party or campaign.                                                                                     
       * Sec. 4. AS 24.60.031 is amended by adding a new                                                                      
     subsection to read:                                                                                                        
                                                                                                                                
               (d)  Notwithstanding  the  limitations  under                                                                    
          (a) and (b)  of this section and  subject to other                                                                    
          state   or   federal   laws,   a   legislator   or                                                                    
          legislative employee  who is  on state  travel may                                                                    
          participate   in   partisan  political   activity,                                                                    
          including campaign activity, if                                                                                       
                    (1)  the participation is incidental to                                                                     
          the purpose of the travel;                                                                                            
                    (2)  the legislator or the legislative                                                                      
          employee does not use or authorize the use of                                                                         
          state resources to pay for the activity; and                                                                          
                    (3)  the legislator or legislative                                                                          
         employee does not participate in the activity                                                                          
                         (A)  during a normal workday                                                                           
               between  8:00 a.m.  and 5:00  p.m., excluding                                                                    
               meal breaks;                                                                                                     
                         (B)  on a state or municipal                                                                           
               election day;                                                                                                    
                         (C)       during   the    30   days                                                                    
               immediately  preceding an  election in  which                                                                    
               the    participating   legislator    or   the                                                                    
               legislator   for   whom   the   participating                                                                    
               employee  works is  a candidate  for elective                                                                    
               office; or                                                                                                       
                         (D)  by fund raising for a                                                                             
               political party or campaign."                                                                                    
                                                                                                                                
     Renumber the following bill sections accordingly.                                                                          
                                                                                                                                
     Page 13, following line 24:                                                                                                
          Insert a new bill section to read:                                                                                    
       "* Sec. 17. AS 24.60.990(a) is amended by adding a                                                                   
     new paragraph to read:                                                                                                     
                    (17)  "state travel" means travel with                                                                      
          transportation or overnight lodging that is                                                                           
          provided or paid for with state resources."                                                                           
                                                                                                                                
     Renumber the following bill section accordingly.                                                                           
                                                                                                                                
CHAIR FRENCH objected and opened discussion on the amendment.                                                                   
                                                                                                                                
SENATOR COGHILL said he would  understand if the Chair decided to                                                               
set the bill aside for  more in depth consideration next session.                                                               
He  explained that  the amendment  addresses AS  24.60.030, which                                                               
talks  about ethical  management, and  AS 24.60.031,  which talks                                                               
about the management  of fundraising. He read  the amendment into                                                               
the record  and the following  legal definition  of "incidental:"                                                               
"Subordinate to  something of greater importance;  having a minor                                                               
role." He  was trying to say  that there are reasons  to prohibit                                                               
the  activity,   but  there  should   be  an   accommodation  for                                                               
participation  in partisan  political  activity  that is  clearly                                                               
incidental.  Whereas  fund raising  for  any  political party  or                                                               
campaign while on  the state dime is  absolutely prohibited. This                                                               
sets  the bar  and clarifies  that the  activity has  to be  very                                                               
small in comparison  to the activity for which  the legislator is                                                               
using state travel.                                                                                                             
                                                                                                                                
SENATOR COGHILL said if he goes  to Anchorage on state travel and                                                               
is called by  a radio program and gives his  opinion, he could be                                                               
charged with participating in partisan  activity when he's really                                                               
just articulating his beliefs. The  question needs to be answered                                                               
and the forgoing are the criteria he set.                                                                                       
                                                                                                                                
2:03:25 PM                                                                                                                    
CHAIR FRENCH said  he appreciates the thought that  went into the                                                               
amendment and shares  some of the concerns.  Leveling a complaint                                                               
that a  legislator has  violated the ethics  rules is  a powerful                                                               
complaint. It will be discussed  further over the summer and next                                                               
year.  Some  of the  questions  that  arise  relate to  the  size                                                               
differences in the  legislative districts and the  sort of things                                                               
a legislator should  be able to do when he/she  is paid to travel                                                               
inside his/her own district. Some  things could conceivably be an                                                               
ethics violation under  the current rules and he's  not sure they                                                               
should be. Is it a violation  if you're traveling to Anchorage on                                                               
state  business and  you update  your Facebook  page relating  to                                                               
your campaign when you're in your  hotel room at night? Could you                                                               
call into  a Fairbanks radio  show from Anchorage  promoting your                                                               
campaign while  on state  travel? He  reiterated that  he'd spend                                                               
time on the question between now and next year.                                                                                 
                                                                                                                                
2:05:54 PM                                                                                                                    
SENATOR  WIELECHOWSKI  stated  agreement.   If  a  legislator  is                                                               
traveling  to Anchorage  and gets  a  call from  a radio  station                                                               
asking  about  partisan  activities,   does  it  matter  if  that                                                               
legislator is  in Anchorage  or Fairbanks?  The problem  has been                                                               
how to  define where  that line is.  The State  Affairs Committee                                                               
couldn't figure  it out, but with  further dialog there may  be a                                                               
solution.                                                                                                                       
                                                                                                                                
SENATOR COGHILL  said he assumes  that some legislators  and some                                                               
people that watch legislators will  be bad actors, but others are                                                               
genuinely concerned  about ethical  behavior. It's a  balance and                                                               
he's trying to  figure out the clearest rule  possible. Trying to                                                               
define  motives is  not  the answer,  but  defining action  items                                                               
helps establish  bright lines  so that  legislators know  what is                                                               
expected  of them  as partisan  people. It  also helps  those who                                                               
genuinely want to keep legislators  ethically accountable for the                                                               
use of state resources.                                                                                                         
                                                                                                                                
He said his  district includes the Richardson  Highway, the Glenn                                                               
Highway,  the  Denali  Highway,  and the  coast  from  Valdez  to                                                               
Whittier  so he  can  be  anywhere in  those  communities and  be                                                               
totally forbidden  from going to  a Republican event  even though                                                               
he had  traveled 800  miles to visit  three other  communities in                                                               
the district. It's painful to be unable to participate.                                                                         
                                                                                                                                
Under  the current  statutes, there  is an  exact prohibition  on                                                               
partisan  activity anytime  a legislator  is on  the state  dime.                                                               
This  leaves  legislators  vulnerable  to  people  who  have  bad                                                               
intentions. The  Ethics Committee has discussed  this extensively                                                               
over the years and legislators  have repeatedly asked for relief.                                                               
He asked the committee to  carefully consider the amendment; it's                                                               
his best effort to define what is and is not ethical.                                                                           
                                                                                                                                
SENATOR COGHILL  asked the  Chair how he  wanted to  proceed with                                                               
the amendment and the bill itself.                                                                                              
                                                                                                                                
2:11:19 PM                                                                                                                    
SENATOR  PASKVAN  commented  that  he looks  forward  to  further                                                               
healthy debate on the matter  and believes that this committee is                                                               
best  suited  for this  substantive  discussion.  It's a  complex                                                               
subject  that requires  careful  consideration  from both  sides.                                                               
Legislators should always  act ethically, but he  doesn't want to                                                               
give unfair  advantage to someone  who can use private  wealth to                                                               
scam the system, knowing that  the person they're attacking can't                                                               
fight back because they were traveling at state expense.                                                                        
                                                                                                                                
SENATOR  COGHILL said  he's  passionate that  this  is not  about                                                               
fairness; it's  about what is ethical.  Right now you can't  be a                                                               
partisan  politician   while  on  the  state   dime.  That's  not                                                               
reasonable and doesn't address the ethical question.                                                                            
                                                                                                                                
CHAIR FRENCH  stated that  he'd leave matters  as they  are; both                                                               
the bill and  the amendment are in front of  the committee and he                                                               
was maintaining his objection.                                                                                                  
                                                                                                                                
2:14:10 PM                                                                                                                    
SENATOR COGHILL  said his  office was prepared  to work  with the                                                               
committee and was open to suggestions.                                                                                          
                                                                                                                                
CHAIR FRENCH announced he would hold SB 89 in committee.                                                                        
                                                                                                                                

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