Legislature(2005 - 2006)BUTROVICH 205

05/01/2005 04:00 PM JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Moved CSSB 125(JUD) Out of Committee
Heard & Held
Moved CSSB 186(JUD) Out of Committee
Heard & Held
Scheduled But Not Heard
Scheduled But Not Heard
Scheduled But Not Heard
Scheduled But Not Heard
Scheduled But Not Heard
Scheduled But Not Heard
+ Bills Previously Heard/Scheduled TELECONFERENCED
<Order listed does not indicated order
each bill will be taken up>
                 SB 186-EXECUTIVE BRANCH ETHICS                                                                             
For the  purpose of research,  it is important to  review minutes                                                               
and recordings  of SB 127  one May 1,   2005 where the  two bills                                                               
were distinctly compared.                                                                                                       
CHAIR RALPH SEEKINS announced his intent  to merge SB 127 into SB
186. He  asked Ms. Barbara  Richey whether she had  concerns with                                                               
SB 186.                                                                                                                         
MS. BARBARA RICHEY, chief  assistant attorney general, Department                                                               
of Law  (DOL), said  SB 186  does a good  job of  indicating what                                                               
constitutes  a significant  personal or  financial interest  in a                                                               
matter. The changes in confidentiality work well.                                                                               
CHAIR SEEKINS moved  Version \I as the  working document. Hearing                                                               
no objections, the motion carried.                                                                                              
7:13:29 PM                                                                                                                    
MS. RICHEY continued SB 186  does not dramatically change current                                                               
law  on confidentiality  of executive  branch ethics  matters. It                                                               
sets up a  mechanism for the steps in the  event of an allegation                                                               
of ethics  violation in regards  to the governor,  the lieutenant                                                               
governor,  and  the   attorney  general.  She  said   it  was  an                                                               
improvement to the current ethics law.                                                                                          
7:15:02 PM                                                                                                                    
CHAIR SEEKINS asked  Ms. Richey how long she has  worked with the                                                               
current law.                                                                                                                    
MS. RICHEY informed  she has headed up her section  for two years                                                               
and has worked in ethics matters prior to that.                                                                                 
CHAIR SEEKINS  asked Ms. Richey  to explain her concern  with the                                                               
effective date.                                                                                                                 
MS. RICHEY said she would like  to have an opportunity to do some                                                               
training on the  changes because they are  significant. She would                                                               
like people to have a  chance to review their financial holdings.                                                               
There may also need to be some regulatory changes as well.                                                                      
7:16:37 PM                                                                                                                    
MS.  RICHEY  added  the  law  from  1986  until  1998  identified                                                               
violation of the confidentiality provisions  of the Ethics Act as                                                               
a class A misdemeanor. Legislators in  1998 felt it was too harsh                                                               
a penalty and so they took it out.                                                                                              
CHAIR  SEEKINS  advised he  was  going  to advance  a  conceptual                                                               
amendment. On Page  1, line 8; reduce the  penalty for disclosure                                                               
of ethics  violation to a $5,000  fine. He would leave  it to the                                                               
drafters to determine whether that would  be a new section of the                                                               
bill.  He asked  Ms. Richey  to  read the  statute regarding  the                                                               
penalty that the personnel board  may impose on current or former                                                               
public officers.                                                                                                                
7:18:41 PM                                                                                                                    
MS. RICHEY said the Ethics Act  itself is not a criminal statute.                                                               
The civil penalty that may be imposed is not to exceed $5,000.                                                                  
CHAIR   SEEKINS  stated   that   would  include   confidentiality                                                               
MS.  RICHEY looked  at  Oregon law  and said  they  have a  civil                                                               
penalty for  violation of  confidentiality provisions.  It reads,                                                               
"any person aggrieved as a  result of violation of this paragraph                                                               
by a  member of the  ethics commission or  it's staff may  file a                                                               
petition in court  in the judicial district  where the petitioner                                                               
resides  in order  to enforce  a civil  penalty provided  in this                                                               
7:20:53 PM                                                                                                                    
CHAIR  SEEKINS speculated  the intent  was  the aggrieved  person                                                               
could now  bring into the process  a person who was  not a member                                                               
of the personnel board or the attorney general's office.                                                                        
SENATOR  FRENCH said  his analysis  is  that in  Oregon a  person                                                               
could sue  a member of our  equivalent of the personnel  board if                                                               
one of those members leaks to the press.                                                                                        
MS. RICHEY agreed.                                                                                                              
7:22:55 PM                                                                                                                    
SENATOR THERRIAULT asked the process previous to 1998.                                                                          
MS. RICHEY  advised the Ethics  Act was  enacted in 1986  and the                                                               
misdemeanor provision was in the bill since the beginning.                                                                      
7:24:06 PM                                                                                                                    
CHAIR SEEKINS reiterated his intent  was to allow the appropriate                                                               
public entity to impose up to $5,000 penalty.                                                                                   
7:25:58 PM                                                                                                                    
SENATOR  FRENCH assumed  the enforcement  mechanism would  lie in                                                               
the attorney general's office.                                                                                                  
CHAIR SEEKINS said yes.                                                                                                         
MS. RICHEY  agreed. Under current  law the personnel  board could                                                               
impose a penalty for violation of  the chapter and the chapter is                                                               
the entire Ethics  Act. It may be possible to  give the personnel                                                               
board jurisdiction if the complainant is not a public officer.                                                                  
CHAIR SEEKINS conceptually proposed to  ask the drafters to add a                                                               
new section to  AS 39.52.440 that allows the  board the authority                                                               
to impose a  fine on any person who  violates the confidentiality                                                               
requirements of  the statute. So  a person could be  fined $5,000                                                               
on  other  violations and  also  $5,000  fine for  violating  the                                                               
confidentiality portions.                                                                                                       
7:29:30 PM                                                                                                                    
SENATOR  FRENCH disagreed.  The  personnel board  would not  have                                                               
jurisdiction over a citizen who files a complaint.                                                                              
CHAIR SEEKINS  said in the  case of someone  who is not  a public                                                               
officer then authority would be given to the DOL.                                                                               
SENATOR  FRENCH disagreed  with the  fundamental approach  of the                                                               
amendment.  There  has  only  been   one  flagrant  violation  of                                                               
confidentiality in recent history.                                                                                              
7:31:12 PM                                                                                                                    
MS.  RICHEY  said  currently  when   a  complaint  is  filed  the                                                               
complainant and the  subject of the complaint  are always advised                                                               
the complaint is confidential under law.                                                                                        
CHAIR SEEKINS  stated a  complaint must be  in writing  and under                                                               
MS. RICHEY agreed.                                                                                                              
CHAIR  SEEKINS asked  whether there  was an  actual form  that is                                                               
MS. RICHEY said it was under oath.                                                                                              
CHAIR SEEKINS  asked whether there  was anything in  statute that                                                               
bars the  complainant from disclosing  they are filing  an ethics                                                               
report before they actually file the complaint.                                                                                 
MS.  RICHEY  said no.  What  is  confidential  right now  is  the                                                               
complaint and the investigation.                                                                                                
SENATOR FRENCH  noted current law  says the attorney  general and                                                               
all  persons  contacted during  the  course  of an  investigation                                                               
shall  maintain confidentiality  regarding the  existence of  the                                                               
investigation. He  said the law  is clear the  investigations are                                                               
7:35:11 PM                                                                                                                    
CHAIR  SEEKINS  reiterated   his  earlier  conceptual  amendment.                                                               
Hearing no objections, Amendment 1 was adopted.                                                                                 
SENATOR  HUGGINS asked  Senator  French his  reservations in  the                                                               
blind trust area.                                                                                                               
SENATOR FRENCH  said the concern is  when a person puts  an asset                                                               
into a blind  trust and then later makes a  decision that affects                                                               
the stock  in the account.  As it is now,  a person has  too much                                                               
access to  their investments  and could  make decisions  based on                                                               
those assets.                                                                                                                   
7:38:22 PM                                                                                                                    
CHAIR SEEKINS  said he would  be more nervous putting  money into                                                               
an account  where he had no  control. At least a  blind trust has                                                               
more fiduciary responsibilities on the part of the trustee.                                                                     
7:43:59 PM                                                                                                                    
CHAIR SEEKINS asked for further amendments.                                                                                     
SENATOR FRENCH offered  a conceptual amendment having  to do with                                                               
the length of time  the assets are in a blind trust  and a set of                                                               
restrictions  an officer  sends along  with his/her  investments.                                                               
The assets would  have to be in  a blind trust for  six months or                                                               
greater and the management control  would be something similar to                                                               
what Attorney  General Marquez did to  put his assets out  of his                                                               
CHAIR SEEKINS  asked if he wanted  to apply that standard  to all                                                               
twenty thousand state employees.                                                                                                
SENATOR FRENCH clarified he was  trying to avoid a public officer                                                               
making  decisions  based on  their  investments  and not  on  the                                                               
public good.                                                                                                                    
CHAIR SEEKINS  said he  would consider  Amendment 3,  which would                                                               
read, "...after  consulting with  the public  officers designated                                                               
ethics supervisor the  financial interest in a matter  is held in                                                               
a blind trust  where the public officer does  not have management                                                               
control over the financial interest."                                                                                           
7:48:03 PM                                                                                                                    
MS. RICHEY  advised the committee they  were considering proposed                                                               
amendments to  AS 39.52.110 and  that is a section  that provides                                                               
overall  guidance  to  the  code   of  ethics.  She  assured  the                                                               
committee that section is followed properly.                                                                                    
Chair Seekins announced a brief recess at 7:50:48 PM.                                                                         
Chair Seekins reconvened the meeting at 7:57:12 PM.                                                                           
CHAIR SEEKINS  advised he  wants to work  with Senator  French to                                                               
craft  a good  bill. His  experience  with broker  managers is  a                                                               
person could place restrictions on what the broker can buy.                                                                     
7:58:18 PM                                                                                                                    
SENATOR FRENCH said it might be  easier to do by developing a set                                                               
of forms for each state department.                                                                                             
CHAIR SEEKINS agreed that could be done.                                                                                        
7:59:46 PM                                                                                                                    
MS.  RICHEY noted  Section 8,  sub-paragraph (A),  and asked  the                                                               
reason for the changes.                                                                                                         
CHAIR  SEEKINS   answered  they  directly  relate   to  financial                                                               
MS.  RICHEY argued  that is  true for  sub-paragraph (B)  but not                                                               
(A). She  recommended the committee  leave "personal or"  in sub-                                                               
paragraph (A).  There can be  a situation  where people are  on a                                                               
board and  if they resign from  that board it is  a personal type                                                               
8:02:06 PM                                                                                                                    
SENATOR FRENCH withdrew Amendment 2.                                                                                            
CHAIR SEEKINS proposed Amendment 3.                                                                                             
     Insert "personal, or" on Page 4, beginning of line 3.                                                                      
SENATOR THERRIAULT  asked Chair  Seekins to restate  his proposed                                                               
MS.  RICHEY   commented  it  would  allow   a  designated  ethics                                                               
supervisor to require someone to remove interests.                                                                              
Amendment 3 was adopted unanimously.                                                                                            
8:04:04 PM                                                                                                                    
CHAIR SEEKINS commented  Sections 9-13 all deal  with the process                                                               
for  the  attorney  general,  the  lieutenant  governor  and  the                                                               
SENATOR FRENCH expressed concern  regarding Section 10 and review                                                               
of the report of the independent counsel.                                                                                       
CHAIR SEEKINS  interrupted to clarify  Section 10 relates  to the                                                               
allegation of  complaint. Section 10  lays out the  process prior                                                               
and is used to determine if a complaint should be filed.                                                                        
SENATOR FRENCH  speculated a series  of newspaper  articles could                                                               
make  allegations  of  ethics violations  against  the  governor,                                                               
which  comes  to  the  attention of  the  attorney  general.  The                                                               
attorney  general would  ask the  personnel board  to appoint  an                                                               
independent counsel who would conduct  an investigation. A report                                                               
would be  submitted to the  attorney general who would  review it                                                               
to  decide  whether  the  findings  indicate  a  violation.  That                                                               
stated, he asked  why insert the judgment of a  political ally of                                                               
the subject instead  of simply handing the  completed report over                                                               
to the personnel board.                                                                                                         
8:06:56 PM                                                                                                                    
CHAIR SEEKINS  answered he would  have as much confidence  in the                                                               
attorney general as he would the politically appointed board.                                                                   
SENATOR  HUGGINS  aired  the  fail   safe  mechanism  is  nothing                                                               
precludes a  person from filing  a complaint concerning  the same                                                               
CHAIR  SEEKINS asserted  trust  must be  placed  at the  attorney                                                               
general level.                                                                                                                  
8:09:15 PM                                                                                                                    
SENATOR  GUESS   commented  since   the  investigation   and  the                                                               
conclusion is confidential there  would appear no public response                                                               
or no comment to Senator French's speculated newspaper scenario.                                                                
CHAIR   SEEKINS  said   more  than   likely  if   an  independent                                                               
investigator's  report came  back to  show no  violation, someone                                                               
would make  that fact public. In  order to stop a  public inquiry                                                               
somebody would have to disclose  the result of the investigation.                                                               
If there was  found to be probable cause the  matter then becomes                                                               
public  because  the attorney  general  would  have to  file  the                                                               
SENATOR GUESS asked  at what time does a report  of an allegation                                                               
become an allegation versus just someone's opinion.                                                                             
8:12:26 PM                                                                                                                    
SENATOR  FRENCH  answered  currently  a  person  has  to  file  a                                                               
complaint and swear  to it. SB 186 doesn't detail  how to get the                                                               
mechanism going.  He suggested adding  a probable  cause standard                                                               
in the bill for a legal reference.                                                                                              
8:14:43 PM                                                                                                                    
CHAIR SEEKINS asked Ms. Richey  her interpretation of the trigger                                                               
point for the investigation.                                                                                                    
MS. RICHEY  assessed the report part  is clear and easy,  where a                                                               
person reports  to a supervisor  under oath  and in writing  of a                                                               
potential violation. She said she  would have to think more about                                                               
allegations and newspaper  opinions because it seems  to leave it                                                               
to the discretion of the attorney  general or the governor who is                                                               
each  other's designated  ethics  supervisors  under the  current                                                               
law. For  the benefit of their  own piece of mind  and the people                                                               
of  Alaska, they  should go  to the  personnel board  and get  an                                                               
independent counsel appointed.                                                                                                  
8:17:16 PM                                                                                                                    
CHAIR SEEKINS said his intent was to allow them that discretion.                                                                
MS. RICHEY  said it happened  (in former Attorney  General Renkes                                                               
case) and the governor immediately investigated it.                                                                             
SENATOR GUESS  referred to Page  6, line  15 and noted  there are                                                               
two  campaign periods,  one when  filing for  office and  another                                                               
when filing  APOC (Alaska Public  Office Commission)  papers. She                                                               
asked which campaign period was referenced.                                                                                     
CHAIR SEEKINS responded it would  be when a person actually files                                                               
for office.                                                                                                                     
MS. RICHEY  advised "campaign  period" is  defined in  the Ethics                                                               
8:20:00 PM                                                                                                                    
SENATOR  FRENCH  detailed  currently an  interested  party  could                                                               
petition the  superior court  and the  superior court  could make                                                               
the  matter public.  He asked  the reason  for taking  that power                                                               
away from the superior court in Section 13.                                                                                     
CHAIR SEEKINS said  the intent is not to strike  the authority of                                                               
the superior court; it's just not included in the section.                                                                      
SENATOR THERRIAULT  commented the drafter  dropped it out  but it                                                               
is still included somewhere else.                                                                                               
MS. RICHEY  explained the  superior court  process. She  added it                                                               
has never been used.                                                                                                            
     The entire section  AS 39.52.335 was added  in the 1998                                                                    
     amendments to  the law.  The concept  was to  have more                                                                    
     oversight  of  what  the   attorney  general  is  doing                                                                    
     because the attorney  general has a lot  of power under                                                                    
     the Ethics  Act to  dismiss complaints or  proceed with                                                                    
     complaints.  This   is  the  one  that   triggered  the                                                                    
     quarterly  reports and  the  reports  to the  personnel                                                                    
     board that  we do every  month on what's going  on with                                                                    
     complaints  etc.  When  the bill  shows  deleting  "the                                                                    
     superior  court makes  the matter  public under  (h) of                                                                    
     this  section", before  the superior  court could  ever                                                                    
     get  involved, you'd  have to  have  a situation  where                                                                    
     number one,  it's a dismissal that  is confidential and                                                                    
     number  two,  the  personnel board,  in  their  review,                                                                    
     decides for  whatever reasons  that the  publication is                                                                    
     in the public  interest. Then they put  in their report                                                                    
     a recommendation  that the matter be  made public. That                                                                    
     was  in  AS  39.52.335(f),  which  is  proposed  to  be                                                                    
     deleted in Section 14 of SB 186.                                                                                           
     If all  those things happened, so  that the disposition                                                                    
     was  not made  public  and the  personnel board  report                                                                    
     contained recommendation  that it be made  public, that                                                                    
     is  when  an interested  person  could  go to  superior                                                                    
     court.  They can't  just go  to superior  court because                                                                    
     they feel  like it.  The personnel  board first  has to                                                                    
     decide  that this  matter should  be made  public. Then                                                                    
     they go to court and the  court could order that all of                                                                    
     it  or parts  of it  be made  public if  they determine                                                                    
     that  the several  things that  have to  be established                                                                    
     were.  One   of  those  things   is  "the   release  of                                                                    
     information  will not  infringe  on protected  rights",                                                                    
     "the  matter   concerns  public  interest",   and  "the                                                                    
     resolution was clearly contrary  to the requirements of                                                                    
     this chapter", those kinds of things.                                                                                      
     As a  matter of practice,  when we resolve  a complaint                                                                    
     through a stipulation, we  require that the stipulation                                                                    
     be made public  so that Alaskans know the  law is being                                                                    
     enforced and  it gives guidance to  state employees and                                                                    
     to  designated ethics  supervisors as  to what  sort of                                                                    
     conduct  will   result  in  an  ethics   complaint  and                                                                    
     enforcement  of  the  law.  We  try  to  make  all  our                                                                    
     resolutions of these public.                                                                                               
8:25:42 PM                                                                                                                    
MS. RICHEY summarized  the only change that SB 186  would make to                                                               
AS 39.52.335  is to  end the  process when  there is  a dismissal                                                               
that is  not public then that  would end it. The  personnel board                                                               
could not  recommend that it be  made public and the  trigger for                                                               
the superior court to make something public would be removed.                                                                   
SENATOR FRENCH  asked Ms.  Richey how  the personnel  board could                                                               
come  to  a  wrong  conclusion   about  the  need  to  publish  a                                                               
MS. RICHEY  reiterated there  is no history  of anybody  using AS                                                               
8:27:22 PM                                                                                                                    
MS. RICHEY stated  confidence in the handling of  the cases. Ones                                                               
that have substance are made public.                                                                                            
8:29:02 PM                                                                                                                    
SENATOR FRENCH relayed his belief  the superior court is a safety                                                               
valve for if a cover up  is happening. He moved Amendment 4. Page                                                               
6,  line 25  reinsert  "superior court  makes  the matter  public                                                               
under (h) of this section."                                                                                                     
CHAIR  SEEKINS objected.  He advised  Senator  French his  motion                                                               
would also have to repeal the repealer.                                                                                         
SENATOR  FRENCH added  to  repeal the  repealer  and any  further                                                               
adjustments for  statute conformity. The idea  behind Amendment 4                                                               
is to maintain the safety valve of the superior court.                                                                          
Roll  call  proved  Amendment 4  failed  with  Senators  Huggins,                                                               
Therriault and Chair Seekins dissenting.                                                                                        
SENATOR  FRENCH noted  a section  deleted on  Pages 6  and 7.  He                                                               
asked Ms. Richey whether that  section applied to personnel board                                                               
MS. RICHEY  said it all  related to AS 39.52.355  and disposition                                                               
of complaints by the attorney general's office.                                                                                 
8:33:37 PM                                                                                                                    
SENATOR  FRENCH stated  for the  record  he was  positive that  a                                                               
citizen  of   the  State  of   Alaska  could  not  be   bound  to                                                               
confidentiality as Section 15 states.                                                                                           
CHAIR SEEKINS  responded what triggers the  violation is somewhat                                                               
retrospective in that  a person has filed the  complaint. What he                                                               
is  trying to  avoid is  someone using  ethics violation  to harm                                                               
someone  else.  SB  186  is  an  attempt  to  give  somebody  the                                                               
opportunity for a deliberative body  to review a complaint before                                                               
that person is tried by the press.                                                                                              
8:38:00 PM                                                                                                                    
SENATOR FRENCH said  he believed the press  wasn't generally that                                                               
interested. The bill  is covering a range of  violations that are                                                               
already covered  by liable and  slander laws. He  moved Amendment                                                               
5. Page 7,  line 18 strike the material  "complainant" and remove                                                               
the  rest  of the  material  on  lines  20-27  that is  bold  and                                                               
SENATOR THERRIAULT objected.                                                                                                    
8:40:54 PM                                                                                                                    
Roll  call  proved  Amendment 5  failed  with  Senators  Huggins,                                                               
Therriault and Chair Seekins dissenting.                                                                                        
MS. RICHEY commented lines 24-27 are about public records cases.                                                                
SENATOR FRENCH asked  the reason for the word  changes in Section                                                               
19 sub-paragraph (B) (conjugal vs. sexual).                                                                                     
CHAIR  SEEKINS  stated  he  was  trying  to  reflect  a  marriage                                                               
relationship better.                                                                                                            
MS. RICHEY  agreed. She said  the words "conjugal"  and "cohabit"                                                               
indicate living in a marital relationship.                                                                                      
8:42:42 PM                                                                                                                    
SENATOR  FRENCH  proposed  Amendment  6.  Add  a  definition  for                                                               
"official  action",  which  would read,  "Official  action  means                                                               
performance of  any duties in  the course  and scope of  a public                                                               
official's  employment including  review, advice,  participation,                                                               
assistance, or other kind of  involvement regarding a matter such                                                               
as a  recommendation, decision,  approval, disapproval,  vote, or                                                               
other similar action including inaction by a public officer."                                                                   
CHAIR SEEKINS objected.                                                                                                         
8:44:23 PM                                                                                                                    
Roll  call  proved  Amendment 6  failed  with  Senators  Huggins,                                                               
Therriault, and Chair Seekins dissenting.                                                                                       
8:46:12 PM                                                                                                                    
MR. MERLE THOMPSON  testified in opposition of SB  186. He stated                                                               
public trust is the reason ethics  laws are written. SB 186 seems                                                               
more  concerned with  groundless  complaints, ruined  reputations                                                               
and financial restriction. It suggests  need for more secrecy and                                                               
punishes  the  complainant  more  so than  the  actual  violator.                                                               
People  in  public office  are  supposed  to  be held  to  higher                                                               
8:48:35 PM                                                                                                                    
MR. THOMPSON  continued the  class A  misdemeanor was  applied to                                                               
members of the  committee, not to the general  public. He claimed                                                               
SB  186 was  taking away  from the  system of  government and  in                                                               
violation of the First Amendment of the U.S. Constitution.                                                                      
8:52:47 PM                                                                                                                    
CHAIR  SEEKINS alleged  there was  nothing in  SB 186  that would                                                               
fine a whistleblower.                                                                                                           
MR. THOMPSON asked  whether he would be penalized in  the case of                                                               
if he intended  to file a complaint against  the attorney general                                                               
and advised the press of his intentions.                                                                                        
CHAIR  SEEKINS  said   it  depends  on  whether   he  filed  that                                                               
8:55:24 PM                                                                                                                    
CHAIR SEEKINS closed public testimony.                                                                                          
SENATOR FRENCH suggested there would  have been more citizens who                                                               
would have testified  had the hearing been  better advertised. He                                                               
said the  public is  unaware that  the Senate  Judiciary Standing                                                               
Committee is hearing SB 186 today.                                                                                              
8:57:01 PM                                                                                                                    
CHAIR SEEKINS stated SB 186 has  been on the daily schedule since                                                               
last  Friday. People  will  have opportunity  to  testify at  the                                                               
House hearings.                                                                                                                 
SENATOR  THERRIAULT  moved  CSSB  186(JUD)  from  committee  with                                                               
individual recommendations and attached fiscal note(s).                                                                         
SENATOR FRENCH objected.                                                                                                        
Roll  call   proved  Senator  French's  objection   failed.  CSSB
186(JUD) passed out of committee with Senator French dissenting.                                                                

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