Legislature(1995 - 1996)

02/06/1996 03:32 PM Senate STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
 SSTA 2/6/96                                                                   
                   SB 141 LEGISLATIVE ETHICS                                  
                                                                              
 CHAIRMAN SHARP announced  SB 141   to be up for consideration and             
 they would be starting on section 31.                                         
                                                                               
 JOE DONAHUE, a public member of Legislative Ethics Committee, said            
 the reason for section 31 was to clarify the vote they take is to             
 be kept confidential.                                                         
                                                                               
 SENATOR DONLEY asked if there was anything in existing law that               
 says those functions are private.  MR. DONAHUE answered that the              
 existing law was not clear.                                                   
                                                                               
 MR. DONAHUE said section 32 clarified the discovery aspect. In                
 addition, there are some procedures on releasing some information             
 the committee acquires in the course of its deliberation.                     
                                                                               
 Section 33 concerns attendance in executive sessions and                      
 confidentiality.  They have chosen not to allow legislators into              
 the deliberations.                                                            
                                                                               
 Sections 34 and 35 recommends who the appointing authority is for             
 legislative employees when the violator is a legislative employee             
 and gives the authority to impose sanctions.                                  
                                                                               
 SENATOR DONLEY commented that section 35 is new and it goes through           
 item by item and explains who the appointing authority is.                    
                                                                               
 SENATOR DUNCAN asked, under (b) (1) if some who works for him, as             
 an individual, is the appointing authority considered the                     
 legislative council.  MR. DONAHUE said it would be the legislator,            
 himself.  SENATOR DUNCAN said it didn't say that anywhere and that            
 needed clarification.                                                         
                                                                               
 SENATOR DUNCAN said he wanted individual legislators to have the              
 authority to be the appointing authority for their own members.  He           
 didn't have a problem with the Budget and Audit Committee being the           
 one that oversees fiscal analysts and employees of that Division.             
 Standing committees needed clarification, also.                               
                                                                               
 MR. DONAHUE explained that section 34 says the appointing authority           
 has the power to impose a sanction recommended by the committee or            
 to impose a different sanction.  It is clear they couldn't be                 
 directed.                                                                     
                                                                               
 SENATOR DUNCAN said he was concerned that they were changing                  
 something that had been standing for a long time.  Right now the              
 Rules Committee does not dictate who you hire, they tell you how              
 many positions you have.  He didn't want to imply that the Rules              
 Committee has to sign off on who every individual legislator hires.           
                                                                               
 CHAIRMAN SHARP agreed with that.                                              
                                                                               
 TAPE 96-9, SIDE B                                                             
 Number 578                                                                    
 SENATOR LEMAN illustrated his point by describing a scenario in               
 which he had a service station business as a client.  The fuel tax            
 is paid by the customer, through the conduit of a service station.            
 According to APOC's definition, that business would have a                    
 substantial interest in state government even though the service              
 station owner's participation in state government might only be to            
 vote.  That scenario differs considerably from ARCO's lobbyists who           
 deal with legislation.                                                        
                                                                               
 SENATOR DONLEY suggested clarifying that section.                             
                                                                               
 CHAIRMAN SHARP asked committee members to submit suggestions on               
 Section 37 before the end of next week.  He explained the only                
 change to Section 38 discussed by committee members was the date              
 change to an earlier date during the legislative session.                     
                                                                               
 MR. DONAHUE explained that there was a two-fold purpose for                   
 choosing that date.  First, all required reports would have the               
 same filing date (February 15), and that date would provide the               
 public more complete information of possible conflicts of interests           
 earlier in the session, than the April 15 deadline.                           
                                                                               
 Section 39 provides a penalty for late disclosure or failure to               
 disclose.  SENATOR PHILLIPS asked if failure to file is a big                 
 problem.  MR. DONAHUE explained it is usually a case of people                
 forgetting to file and notifying the committee six months after the           
 deadline.  The committee has been allowing people to file late, but           
 did not have a penalty for doing so.  The purpose of the                      
 disclosures is to provide information to the public, not to                   
 penalize, but without a penalty, people tend to put off filing.               
 Section 39 provides authority to establish a fine, Section 40                 
 establishes the amounts.                                                      
                                                                               
 Number 367                                                                    
                                                                               
 CHAIRMAN SHARP noted Section 41 provides an effective date.  MR.              
 DONAHUE stated the committee would prefer the date to coincide with           
 start of the calendar year rather than the start of session.                  
                                                                               
 SENATOR LEMAN suggested if guidelines are included for fines, the             
 committee consider similar fines for inadvertent omissions of APOC            
 filing requirements.  He felt APOC's fines are very inconsistent.             
                                                                               
 The committee discussed amendments to SB 141.  MR. DONAHUE                    
 explained amendment K.10 is an entirely new section which would               
 provide a definition of "substantial interest", which was                     
 originally defined in the handbook.  The definition is a proposal             
 of a series of tests that must be met to determine whether a                  
 substantial interest exists.  Ethics Committee members were                   
 concerned about requiring a declaration of conflict of interest on            
 votes, even though most legislators vote anyway according to the              
 Uniform Rules.  The Ethics Committee proposed the change from                 
 prohibition to disclosure.  Current law prohibits a legislator from           
 taking action at the moment on any administrative or political                
 action, which includes committee actions.                                     
                                                                               
 Number 325                                                                    
                                                                               
 CHAIRMAN SHARP commented he has heard a declaration of conflict of            
 interest during floor sessions many times, but not during committee           
 hearings.  MR. DONAHUE stated the Ethics Committee is primarily               
 concerned with declaration and countered that legislators may want            
 to review what is considered legislative or administrative action.            
 The Ethics Committee interpreted that to include committee action.            
                                                                               
 SENATOR DONLEY felt legislators should be required to orally                  
 disclose the conflict prior to a vote, rather than to file written            
 documents.                                                                    
                                                                               
 SENATOR PHILLIPS questioned whether under test #1 of the                      
 "substantial interest" provision, a person who owned shares in a              
 mutual fund that may have $2,000 of oil company stock would be                
 considered to have substantial interest in that company.  MR.                 
 DONAHUE stated $2,000 worth of stock would not be considered                  
 substantial, and explained that clients often only control which              
 mutual fund is purchased, rather than the mutual fund's investment            
 portfolio which changes constantly.                                           
                                                                               
 SENATOR DONLEY asked, if the amendments are adopted into a                    
 committee substitute, whether oral disclosure could be included.              
 MR. DONAHUE replied the Ethics Committee intent was oral disclosure           
 for both committee and floor action.  Written disclosure would only           
 be required when drafting legislation or testifying at an                     
 administrative hearing.  SENATOR DONLEY asked for clarification.              
 MR. DONAHUE stated the testimony at an administrative hearing would           
 have to be related to legislation, but could be presented by a                
 legislator representing his or herself.                                       
                                                                               
 The committee discussed when legislators testify before boards, to            
 determine whether or not they are acting in a legislative capacity,           
 they would have to have a substantial interest in the issue to                
 necessitate disclosure.                                                       
                                                                               
 MR. DONAHUE explained amendment K.17 which relates to the immediate           
 family.  This amendment changes the term "spousal equivalent" to a            
 "person cohabitating with the person in a conjugal relationship."             
 SENATOR LEMAN thought this term was sufficient and found it                   
 preferable because it removes the element that develops the                   
 equivalency to the legal relationship of marriage.  The other                 
 intent of the amendment is to lessen the burden of legislators from           
 knowing what associations every family member has with the state.             
 Right now, a legislator could be held liable for an adult sibling             
 who is involved in deals with the State.  This definition tightens            
 the meaning to immediate family members.                                      
 Amendment K.15 gives the Ethics Committee a right of follow-up to             
 ensure that corrective action occurs for a violation.                         
                                                                               
 CHAIRMAN SHARP asked if the committee would have the ability to               
 charge the violator under civil procedure.  MR. DONAHUE explained             
 if the Ethics Committee formally charged a person, the formal                 
 charges currently in the code would be used.  At present it is not            
 clear whether a person can be formally charged which makes the                
 process toothless.  Amendment K.15 addresses corrective action as             
 well as sanctions for legislative employees.                                  
                                                                               
 MR. DONAHUE explained amendment K.19 covers corrective action for             
 legislators, but does not cover sanctions.                                    
                                                                               
 SENATOR DONLEY asked if amendment K.19 adds a timeline to a                   
 sanction.  MR. DONAHUE replied that the Ethics Committee can                  
 already add a timeline, however if the corrective action does not             
 occur within that timeline, the Ethics Committee can take no                  
 further action.                                                               
                                                                               
 SENATOR DONLEY believed the Ethics Committee already has the                  
 authority to take further action.  MR. DONAHUE stated the Ethics              
 Committee has tried to exercise it, but was not successful.                   
 SENATOR DONLEY felt the Ethics Committee does not have the ability            
 to do follow-up, but it does have the authority to recommend                  
 sanctions to the legislature of time lines and penalties for                  
 failure to comply.  MR. DONAHUE believed the amendment would                  
 require the Ethics Committee to include a time frame.                         
                                                                               
 SENATOR DONLEY felt the amendment to be redundant as that ability             
 is already permitted by statute.                                              
                                                                               
 MR. DONAHUE clarified amendment K.19 allows for follow-up when a              
 legislator does not comply with a sanction.                                   
                                                                               
 CHAIRMAN SHARP discussed amendment K.20 which allows trainees to              
 volunteer services.   It addresses concerns of interns under bona             
 fide programs.  MR. DONAHUE stated the Ethics Committee had no                
 problem with that amendment.                                                  
                                                                               
 SENATOR DONLEY brought up topics discussed at an earlier date, such           
 as telephone usage, and vague language about office usage                     
 (regarding back-up data from campaigns).  He explained that records           
 were never intended to fall under the general prohibition on                  
 keeping campaign materials.  He suggested making a simple exception           
 for maintaining campaign and APOC records.                                    
                                                                               
 TAPE 96-10, SIDE B                                                            
 Number 000                                                                    
                                                                               
 Regarding telephone usage, SENATOR DONLEY commented that a                    
 legislator has no control over who calls the legislator, and                  
 whether the call is for state-related business.  He felt there                
 should not be a rule requiring legislators to control who can call            
 the office, and people should not be prohibited from calling on the           
 phone, since providing phone access allows the legislator to be               
 available at the office.  MR. DONAHUE commented that the words                
 "limited" and "nominal" are currently in the law.  If it is the               
 legislature's intent that any amount of telephone use is                      
 acceptable, then the language needs to be changed.  He did not know           
 whether the Ethics Committee would recommend that change.                     
                                                                               
 SENATOR DONLEY clarified the law allows unlimited use of the phone            
 as long as there is no special charge attached; but limits use for            
 other things.  He felt there is confusion about seminars, and felt            
 the original intent was not to limit people from making non-charge            
 phone calls.  MR. DONAHUE felt there are probably legislators and             
 legislative employees who spend more time during the day making               
 personal phone calls than doing legislative business.                         
                                                                               
 SENATOR DONLEY stated that was never the intent of the law, and               
 those cases should be management decisions rather than an ethics              
 question, and such a person should be fired.                                  
                                                                               
 CHAIRMAN SHARP thanked Mr. Donahue for his testimony and announced            
 the committee would reschedule SB 141 in the form of a committee              
 substitute incorporating the recommended amendments.  He adjourned            
 the meeting at 5:10 p.m.                                                      
                                                                               
                                                                               

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