Legislature(2021 - 2022)BUTROVICH 205

03/22/2021 01:30 PM JUDICIARY

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Audio Topic
01:32:46 PM Start
01:33:53 PM Confirmation Hearing
01:49:16 PM SB15
02:21:33 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Consideration of Governor's Appointees TELECONFERENCED
-- Public Testimony --
+= SB 15 OPEN MEETINGS ACT; PENALTY TELECONFERENCED
Heard & Held
Bills Previously Heard/Scheduled
**Streamed live on AKL.tv**
                SB 15-OPEN MEETINGS ACT; PENALTY                                                                            
                                                                                                                                
1:49:16 PM                                                                                                                    
CHAIR  REINBOLD   reconvened  the   meeting  and   announced  the                                                               
consideration of SB  15, SENATE BILL NO. 15, "An  Act relating to                                                               
the  Open Meetings  Act;  and establishing  a  civil penalty  for                                                               
violations  of  the  open  meeting  requirements  by  members  of                                                               
governmental bodies."                                                                                                           
                                                                                                                                
[CSSB 15(CRA)was  before the committee.  The bill  was previously                                                               
heard on 3/17/21.]                                                                                                              
                                                                                                                                
1:49:27 PM                                                                                                                    
MELODIE  WILTERDINK, Staff,  Senator Mia  Costello, Alaska  State                                                               
Legislature,  Juneau, Alaska,  began a  PowerPoint on  SB 15.  On                                                               
February 23,  1965, the late US  Senator Stevens, who was  then a                                                               
state  representative   introduced  House   Bill  170,   "An  Act                                                               
requiring  that the  meetings of  agencies of  the state  and its                                                               
subdivisions  be open  to the  public  with certain  exceptions."                                                               
This bill  is known  today as  the Open  Meetings Act,  she said.                                                               
Prior to passage  of House Bill 170, the  legislature removed the                                                               
penalty provision  that established a  fine of up to  $1,000 from                                                               
the bill.                                                                                                                       
                                                                                                                                
MS. WILTERDINK  said SB 15 would  amend the Open Meetings  Act by                                                               
adding a civil  penalty of up to $1,000 for  any violations. CSSB
15(CRA) identifies  that the Alaska Public  Offices Commission as                                                               
the entity  to receive complaints  and assess any  penalties, she                                                               
said.                                                                                                                           
                                                                                                                                
1:52:04 PM                                                                                                                    
MS. WILTERDINK reviewed states with  penalties for violating open                                                               
meeting requirements  shown on slide  3. In 2002, a  Florida jury                                                               
convicted  a  county  commissioner for  discussing  redistricting                                                               
with  a county  election  supervisor  while another  commissioner                                                               
listened via speaker phone. The  judge sentenced the commissioner                                                               
to 60 days in jail, fined  him $500 and required the commissioner                                                               
to pay $3,600 in court fees.                                                                                                    
                                                                                                                                
1:52:53 PM                                                                                                                    
MS.  WILTERDINK  reviewed  slide  4,  which  highlighted  several                                                               
comments from  residents that illustrated their  frustration when                                                               
the Anchorage  Assembly did not  allow the public  to participate                                                               
in a meeting due to COVID-19.                                                                                                   
                                                                                                                                
1:53:19 PM                                                                                                                    
SENATOR MYERS recalled that the  bill then Representative Stevens                                                               
introduced  initially included  language  to  establish a  $1,000                                                               
fine but  it was ultimately not  adopted. He noted that  the fine                                                               
in  SB 15  was not  adjusted for  inflation but  if so,  the fine                                                               
would likely be $5,000 to $7,000.                                                                                               
                                                                                                                                
MS. WILTERDINK agreed it would be higher.                                                                                       
                                                                                                                                
SENATOR  MYERS asked  why the  bill  does not  adjust the  $1,000                                                               
fine.                                                                                                                           
                                                                                                                                
MS.  WILTERDINK answered  that the  sponsor thought  it made  the                                                               
most sense to  initially set the $1,000 fine as  a civil penalty.                                                               
She  said  that  then   Representative  Steven's  bill  initially                                                               
established the penalty as a  misdemeanor punishable by up to one                                                               
year  in  jail and  a  fine  up  to  $1,000. She  explained  that                                                               
establishing a civil  penalty meant that it will not  go to court                                                               
unless APOC appealed the ruling.                                                                                                
                                                                                                                                
1:54:46 PM                                                                                                                    
CHAIR REINBOLD asked whether SB  15 would establish a misdemeanor                                                               
penalty and if it was discussed in the previous committee.                                                                      
                                                                                                                                
MS. WILTERDINK answered  no, it does not  establish a misdemeanor                                                               
penalty  and  she did  not  believe  the Community  and  Regional                                                               
Affairs Committee discussed it.                                                                                                 
                                                                                                                                
1:55:14 PM                                                                                                                    
SENATOR HUGHES commented that the  Community and Regional Affairs                                                               
Committee  deferred  the  question  of whether  the  penalty  was                                                               
appropriate for  the Senate Judiciary Committee  to discuss since                                                               
it was the next committee of referral.                                                                                          
                                                                                                                                
1:56:27 PM                                                                                                                    
MS.  WILTERDINK   presented  the   sectional  analysis   for  the                                                               
committee   substitute  (CS)   SB  15   (CRA),  Version   G.  She                                                               
paraphrased the following:                                                                                                      
                                                                                                                                
     Sec. 1  AS 15.13 Page 1, Lines 5-14                                                                                      
                                                                                                                                
     Is  amended  by  adding  a  new  section  AS  15.13.395                                                                    
     outlining  the  duties  of the  Alaska  Public  Offices                                                                    
     Commission  with  regards   to  hearing  and  enforcing                                                                    
     complaints of violations  of section 4 of  this bill AS                                                                    
     44.62.310(i).  This section  also  excludes members  of                                                                    
     the commission from being subject  to enforcement of AS                                                                    
     44.62.310(i) under this section.                                                                                           
                                                                                                                                
     Sec. 2    AS 44.23.020  Page 2,  Lines 1-10 Adds  a new                                                                    
     section  outlining the  duties of  the Alaska  Attorney                                                                    
     General   with  regards   to   hearing  and   enforcing                                                                    
     complaints of violations  of section 4 of  this bill AS                                                                    
     44.62.310(i)  directed towards  members  of the  Alaska                                                                    
     Public Offices Commission.                                                                                                 
                                                                                                                                
1:57:21 PM                                                                                                                    
                                                                                                                                
     Sec. 3  AS  44.62.310(h) Page 2 Lines  11-14 Is amended                                                                    
     to define the terms  "knowingly" and "public official."                                                                    
     Under this  section, "knowingly" has the  meaning given                                                                    
     in  AS  11.81.900(a)(2).   "Public  official"  has  the                                                                    
     meaning given  in AS 39.50.200(a)(9) but  is changed to                                                                    
     exclude "judicial officers" with regards to this bill.                                                                     
                                                                                                                                
     Sec. 4   44.62.310 Page  2, Lines  15-23 Is  amended to                                                                    
     add  a civil  penalty of  up to  $1,000 for  elected or                                                                    
     appointed members of a  governmental body who knowingly                                                                    
     attend a  meeting that violates the  Open Meetings Act.                                                                    
     This  section is  changed to  outline  that the  Alaska                                                                    
     Public Offices Commission will  enforce this penalty in                                                                    
     all cases  except when  a member  of the  commission is                                                                    
     accused of  a violation.  This section  also explicitly                                                                    
     excludes   community  councils   from   the  types   of                                                                    
     governmental bodies subject to this section                                                                                
                                                                                                                                
1:58:31 PM                                                                                                                    
                                                                                                                                
     Sec.  5     Page  2,  Lines  24-29  Provides  that  the                                                                    
     penalties  added   by  this  bill  apply   to  offenses                                                                    
     occurring on  or after the  effective date of  this Act                                                                    
     and  is  amended to  conform  to  the addition  of  new                                                                    
     sections of the bill.                                                                                                      
                                                                                                                                
1:58:49 PM                                                                                                                    
SENATOR KIEHL referring  to the map on slide 3,  asked why Alaska                                                               
was not listed among the states  where actions of a body could be                                                               
invalidated. He related his understanding  that the Open Meetings                                                               
Act allows for invalidations.                                                                                                   
                                                                                                                                
MS. WILTERDINK  answered that the  map does not show  states that                                                               
targeted  specific  individuals  for  violations.  Alaska's  Open                                                               
Meetings Act  specifically says that  governmental bodies  can be                                                               
targeted. It would void any actions  of that body but it does not                                                               
apply to actions taken by a specific individual.                                                                                
                                                                                                                                
1:59:33 PM                                                                                                                    
SENATOR HUGHES asked  if actions in Idaho and  Colorado, as shown                                                               
on slide, could  be taken against an individual person  but not a                                                               
body.                                                                                                                           
                                                                                                                                
MS. WILTERDINK  replied that was  her understanding.  She offered                                                               
to verify this and report back to the committee.                                                                                
                                                                                                                                
2:00:07 PM                                                                                                                    
SENATOR KIEHL  referred to the  definition of public  official in                                                               
Section  3. He  asked  how the  exclusion  for judicial  officers                                                               
would apply if  a municipality used a hearing  officer to conduct                                                               
administrative appeals.                                                                                                         
                                                                                                                                
MS. WILTERDINK  explained that the  sponsor used  that definition                                                               
since it includes  everyone that the Open  Meetings Act currently                                                               
covers.  It was  not  based on  what occurs  at  hearings at  the                                                               
municipal level.                                                                                                                
                                                                                                                                
SENATOR  KIEHL asked  for clarification  on whether  an appointed                                                               
official  acting  as a  hearing  officer  would be  considered  a                                                               
judicial officer since they conduct administrative appeals.                                                                     
                                                                                                                                
MS.  WILTERDINK answered  that  she was  unsure.  She offered  to                                                               
research this and report back to the committee.                                                                                 
                                                                                                                                
2:01:30 PM                                                                                                                    
CHAIR REINBOLD asked  why the legislature and  the judiciary were                                                               
excluded from the bill.                                                                                                         
                                                                                                                                
MS. WILTERDINK answered  that the Open Meetings  Act excludes the                                                               
legislature since legislative acts  are covered under the Uniform                                                               
Rules. She explained  that changing that process  would require a                                                               
different  process.  She said  the  Open  Meetings Act  currently                                                               
exempts the judiciary.                                                                                                          
                                                                                                                                
2:02:39 PM                                                                                                                    
CHAIR REINBOLD said she believes  the Anchorage Assembly violated                                                               
the Open Meetings  Act this summer when it banned  the public due                                                               
to COVID-19 concerns.  She asked whether she would  be subject to                                                               
a fine if she had testified before the Anchorage Assembly.                                                                      
                                                                                                                                
MS. WILTERDINK answered no; that was  not the intent of the bill.                                                               
Elected  officials  who  were conducting  the  meeting  would  be                                                               
subject to fines.                                                                                                               
                                                                                                                                
CHAIR  REINBOLD  suggested  this  language is  confusing  and  it                                                               
should be amended.                                                                                                              
                                                                                                                                
2:04:33 PM                                                                                                                    
SENATOR HUGHES  recalled that  community councils  were exempted.                                                               
She  asked whether  this bill  would  apply to  those serving  on                                                               
planning  commissions,  advisory  boards and  road  service  area                                                               
boards.  She  asked whether  the  bill  applies only  to  elected                                                               
officials.                                                                                                                      
                                                                                                                                
MS. WILTERDINK suggesting that reading  the definition for public                                                               
official may help. She read AS 39.50.200 (a) (9):                                                                               
                                                                                                                                
     "public official" means                                                                                                    
                                                                                                                                
     (A) a judicial officer                                                                                                     
     (B), the governor or the lieutenant governor                                                                               
     (C) a  person hired or  appointed in a department  in a                                                                    
     department in the executive branch as                                                                                      
                                                                                                                                
         (i) the head or deputy head of the department                                                                          
          (ii) the director or deputy director of a                                                                             
          division                                                                                                              
          (iii) a special assistant to the head of the                                                                          
          department                                                                                                            
          (iv) a person serving as the legislative liaison                                                                      
          for the department                                                                                                    
                                                                                                                                
     (D)  an assistant  to the  governor  or the  lieutenant                                                                    
     governor                                                                                                                   
     (E)  the chair  or a  member of  a state  commission or                                                                    
     board                                                                                                                      
     (F)   state   investment   officers   and   the   state                                                                    
     comptroller in the Department of Revenue                                                                                   
     (G) the  chief procurement  officer appointed  under AS                                                                    
     36.30.010;  (H) the  executive director  of the  Alaska                                                                    
     Workforce Investment Board; and                                                                                            
     (I) each appointed or elected municipal officer                                                                            
     (J)  the   members  of  the  board   of  trustees,  the                                                                    
     executive director, and the  investment officers of the                                                                    
     Alaska Permanent Fund Corporation;"                                                                                        
                                                                                                                                
SENATOR  HUGHES   pointed  out  that  this   definition  includes                                                               
appointed  or  elected  municipal  officers.  She  suggested  the                                                               
committee  should explore  whether the  sponsor intended  this to                                                               
apply to  local planning commission members,  advisory board, and                                                               
road service area board members.                                                                                                
                                                                                                                                
MS.  WILTERDINK  related  her   understanding  that  the  sponsor                                                               
intended  SB 15  to apply  to those  that the  Open Meetings  Act                                                               
currently affects.                                                                                                              
                                                                                                                                
CHAIR  REINBOLD related  her understanding  that this  bill would                                                               
primarily apply to the executive branch.                                                                                        
                                                                                                                                
MS. WILTERDINK responded  that it was meant to  apply to everyone                                                               
subject to the  Open Meetings Act so it would  apply to board and                                                               
commission members and the majority  of the executive branch. She                                                               
said  it  would  exclude  community  council  members  and  those                                                               
serving in similar capacities.                                                                                                  
                                                                                                                                
CHAIR REINBOLD  asked how  this bill  would affect  the Anchorage                                                               
Assembly.                                                                                                                       
                                                                                                                                
MS.  WILTERDINK  answered that  this  would  directly impact  the                                                               
Anchorage  Assembly  since  its  members  are  elected  municipal                                                               
officials.                                                                                                                      
                                                                                                                                
2:08:01 PM                                                                                                                    
SENATOR KIEHL said  this bill appears to  affect utility advisory                                                               
board and  planning commission members.  He asked if there  was a                                                               
reason school site councils were not exempted.                                                                                  
                                                                                                                                
MS. WILTERDINK  offered to research  this and report back  to the                                                               
committee. She related that Legislative  Legal was not certain if                                                               
community  councils  were  impacted,  so  the  bill  specifically                                                               
excluded them.                                                                                                                  
                                                                                                                                
2:09:14 PM                                                                                                                    
SENATOR KIEHL  asked whether the sponsor  considered limiting the                                                               
open  meeting requirements  specifically  to municipal  officials                                                               
who must file a financial disclosure.                                                                                           
                                                                                                                                
MS. WILTERDINK offered to take up this with the sponsor.                                                                        
                                                                                                                                
2:09:47 PM                                                                                                                    
SENATOR  KIEHL  related his  understanding  that  the bill  would                                                               
apply  to   those  who   knowingly  attend   a  meeting   of  the                                                               
governmental  body  that  violates  the  Open  Meetings  Act.  He                                                               
described  an assembly  meeting he  attended. An  assembly member                                                               
became  aware that  the  outside  doors had  been  locked for  30                                                               
minutes.  He was  uncertain  when the  assembly  member knew  the                                                               
doors were locked  but once it was brought to  his attention, the                                                               
Chair  stopped the  meeting and  took the  appropriate steps.  He                                                               
asked if  the assembly  member was guilty  of violating  the Open                                                               
Meetings Act because he was aware of the locked doors.                                                                          
                                                                                                                                
MS.  WILTERDINK  said she  did  not  think  that  it would  be  a                                                               
violation  given  the  definition  of  knowingly  and  since  the                                                               
meeting was  stopped as soon as  the Chair was informed  that the                                                               
meeting was not public.                                                                                                         
                                                                                                                                
SENATOR KIEHL  clarified that at  some point the member  knew the                                                               
doors were  locked and  it is  unclear how  long the  person knew                                                               
that the meeting was not public.                                                                                                
                                                                                                                                
MS.  WILTERDINK offered  her view  that the  meeting was  stopped                                                               
when the violation became obvious.                                                                                              
                                                                                                                                
SENATOR KIEHL  expressed concern that unless  the assembly member                                                               
immediately "stepped away"  that the assembly member  would be in                                                               
violation.                                                                                                                      
                                                                                                                                
2:12:14 PM                                                                                                                    
SENATOR  KIEHL referred  to the  frustrations that  some Alaskans                                                               
had at  an Anchorage Assembly  meeting this summer.  He expressed                                                               
concern that if  the bill were to pass  that governmental lawyers                                                               
would  need  to  defend  members  who  were  conducting  official                                                               
business.                                                                                                                       
                                                                                                                                
MS. WILTERDINK  described the process. Complaints  would be taken                                                               
up by  the Alaska  Public Offices  Commission (APOC).  APOC would                                                               
determine if  the complaint will  go forward. If  numerous people                                                               
complained  about one  meeting,  the complaints  would likely  be                                                               
combined. Each  side would present  their case, APOC  staff would                                                               
make  a  recommendation,  a  hearing would  be  conducted  and  a                                                               
penalty would  be assessed  or not  assessed. Decisions  could be                                                               
appealed,  she  said. She  envisioned  that  the costs  would  be                                                               
levied against the state.                                                                                                       
                                                                                                                                
2:14:21 PM                                                                                                                    
SENATOR  KIEHL offered  his  view that  a  municipal official  or                                                               
nonprofit  would be  entitled to  counsel. He  said absent  gross                                                               
malfeasance, the city attorney would  need to defend the assembly                                                               
members  at a  hearing. He  recalled  that tens  of thousands  of                                                               
dollars could be  spent to defend those acting  in their official                                                               
capacity. He  offered his view  that those costs would  be passed                                                               
on to the taxpayers.                                                                                                            
                                                                                                                                
MS. WILTERDINK  answered that the  intent of  SB 15 is  to target                                                               
the individuals  who violate the  Open Meetings Act.  Many states                                                               
reduce  the  number  of frivolous  complaints  by  requiring  the                                                               
losing party  to pay any legal  fees. However, she did  not think                                                               
the costs would be passed on to taxpayers.                                                                                      
                                                                                                                                
2:15:59 PM                                                                                                                    
SENATOR KIEHL offered to do some additional research.                                                                           
                                                                                                                                
2:16:15 PM                                                                                                                    
SENATOR HUGHES asked  to hear from Legislative  Legal Services on                                                               
this issue. This bill does  not specify that the individual would                                                               
be responsible.  She suggested  that this  section might  need an                                                               
amendment  to ensure  that happens.  She said  she would  support                                                               
requiring  the losing  parties to  pay court  fees since  elected                                                               
officials  such   as  assembly  members  could   be  targeted  by                                                               
frivolous complaints.  She suggested that the  sponsor would need                                                               
to clarify whether the sponsor  intended to have individuals bear                                                               
the costs.                                                                                                                      
                                                                                                                                
CHAIR REINBOLD concurred with Senator Hughes.                                                                                   
                                                                                                                                
2:18:18 PM                                                                                                                    
SENATOR HUGHES recalled that Senator  Myers previously raised the                                                               
issue  of  inflation  adjustments  to  the  fines,  which  seemed                                                               
reasonable. She asked if the  1965 committee held any discussions                                                               
when  it removed  the fines  from the  enabling legislation.  She                                                               
offered her  view that the  Open Meetings  Act does not  have any                                                               
consequences unless the actions taken  by the body become invalid                                                               
if violations occur.                                                                                                            
                                                                                                                                
MS. WILTERDINK  responded that the Legislative  Reference Library                                                               
does  not have  any notes  from  the 1965  committee action  that                                                               
could provide insight.                                                                                                          
                                                                                                                                
[SB 15 was held in committee.]                                                                                                  
                                                                                                                                

Document Name Date/Time Subjects