Legislature(2005 - 2006)BELTZ 211

04/26/2005 03:30 PM Senate STATE AFFAIRS


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Recessed to Call of Chair 8 PM 4/27--
*+ SB 182 STATE VETERANS' CEMETARY & FUND TELECONFERENCED
Moved SB 182 Out of Committee
+ HB 183 CAMPAIGN FINANCE: SHARED EXPENSES/LISTS TELECONFERENCED
Moved SCS CSHB 183(STA) Out of Committee
+ HB 210 BLOODBORNE PATHOGEN TESTING TELECONFERENCED
Moved CSHB 210(JUD) Out of Committee
+ HB 215 PERM FUND CORP. INVESTMENTS/REGULATIONS TELECONFERENCED
Heard & Held
SB 186 EXECUTIVE BRANCH ETHICS
Moved CSSB 186(STA) Out of Committee
SB 187 LEGISLATIVE ETHICS/MEETINGS
Moved CSSB 187(STA) Out of Committee
*+ SB 127 EXEC. BRANCH ETHICS: FINANCIAL INTERESTS TELECONFERENCED
Moved SB 127 Out of Committee
Bills Previously Heard/Scheduled
= HB 127 PFD:PEACE CORPS/OLYMPIAN/SANCTIONS
Moved CSHB 127(FIN) am Out of Committee
               SB 187-LEGISLATIVE ETHICS/MEETINGS                                                                           
                                                                                                                              
VICE-CHAIR  THOMAS  WAGONER  announced  SB   187  to  be  up  for                                                               
consideration.                                                                                                                  
                                                                                                                                
5:13:59 PM                                                                                                                    
                                                                                                                                
SENATOR  RALPH  SEEKINS,  Sponsor,  related that  when  he  began                                                               
reviewing the Executive Ethics Act  there was indication that the                                                               
Legislative Ethics Act should be reviewed as well.                                                                              
                                                                                                                                
He asserted that the same  level of confidentiality should apply.                                                               
The  intent is  to  hold  someone who  files  a  complaint or  is                                                               
involved in the  process to the same level  of confidentiality as                                                               
the  members and  staff of  the Select  Committee on  Legislative                                                               
Ethics.  The  investigators  would  also be  brought  under  that                                                               
umbrella of confidentiality.                                                                                                    
                                                                                                                                
Current  law  says  if  a  complaint  is  brought  and  then  the                                                               
complainant  goes  public,  then   the  complaint  is  dismissed.                                                               
However, the  committee could go  forward with  an investigation.                                                               
He  submitted  that if  an  ethics  complaint  is filed  and  the                                                               
complainant  immediately  goes  public with  the  allegation  the                                                               
committee would  have no  recourse but  to dismiss  the complaint                                                               
and then go  forward and investigate the  allegations. He charged                                                               
that that's a toothless law.                                                                                                    
                                                                                                                                
5:17:32 PM                                                                                                                    
                                                                                                                                
Confidentiality  must  be  maintained  until  probable  cause  is                                                               
reached. At that point the  complaint could become public. If the                                                               
complaint  is  dismissed  as frivolous  or  baseless  it  remains                                                               
confidential. However,  if a  complaint is  filed and  the person                                                               
who is  charged chooses  to publicly defend  him or  herself then                                                               
the entire record becomes public.  That provision applies to both                                                               
this bill and SB 186, he said.                                                                                                  
                                                                                                                                
The bill  also attempts to  clarify that the way  the legislature                                                               
conducts   business    is   the   legislature's    business   and                                                               
responsibility. Any  attempt by a  legislator to break  the rules                                                               
is taken seriously and the  complaint is immediately taken to the                                                               
body to  determine what the  procedure should be.  The proceeding                                                               
is in the full light of day and is discussed openly.                                                                            
                                                                                                                                
SENATOR CHARLIE HUGGINS asked about the alternate member.                                                                       
                                                                                                                                
SENATOR  SEEKINS said  having an  alternate member  increases the                                                               
likelihood  that a  full  committee could  meet  and conduct  the                                                               
committee's business, which includes voting.                                                                                    
                                                                                                                                
5:30:14 PM                                                                                                                    
                                                                                                                                
SENATOR ELTON said  he would not continue to  question the matter                                                               
of  the class  A  misdemeanor,  but it  was  still  a subject  of                                                               
concern.                                                                                                                        
                                                                                                                                
He asked  if it  is correct that  as a consequence  of SB  187 he                                                               
would  never hear  about a  justified ethics  complaint that  was                                                               
filed  against   his  staff  member   provided  the   staff  took                                                               
corrective action as ordered by the ethics committee.                                                                           
                                                                                                                                
SENATOR SEEKINS  said that isn't  the intent. The intent  is that                                                               
once there is probable cause and  some action has been taken then                                                               
the matter  could become a  public record.  Confidentiality would                                                               
be protected  until probable  cause is  established. If  the bill                                                               
doesn't read  that way now it  will before it gets  to the floor,                                                               
he assured.                                                                                                                     
                                                                                                                                
SENATOR  ELTON expressed  concern  about the  proposed change  to                                                               
allow an  alternate member  to vote  without having  attended all                                                               
the hearings on  the issue. He compared the  situation to someone                                                               
who didn't attend  an entire trial, but was allowed  to vote as a                                                               
part of  the jury. He asked  if the sponsor had  considered other                                                               
ways such as requiring that  the alternate hear all the arguments                                                               
before voting.                                                                                                                  
                                                                                                                                
SENATOR SEEKINS pointed out that  there is no such restriction on                                                               
the regular members.                                                                                                            
                                                                                                                                
SENATOR ELTON replied perhaps that needs corrective action.                                                                     
                                                                                                                                
SENATOR SEEKINS said he had no  problem looking at the issue, but                                                               
he wouldn't  saddle an alternate  with a higher  requirement than                                                               
is imposed on the regular members.                                                                                              
                                                                                                                                
5:34:21 PM                                                                                                                    
                                                                                                                                
SENATOR HUGGINS asked  whether page 2, line 13-15  is to increase                                                               
diversity in the ethics committee.                                                                                              
                                                                                                                                
SENATOR SEEKINS said yes.                                                                                                       
                                                                                                                                
SENATOR HUGGINS  offered the view  that it's a good  idea because                                                               
others have recognized that it's  a rather select group of people                                                               
with a narrow band of interest.                                                                                                 
                                                                                                                                
SENATOR SEEKINS submitted that occurred  with no evil intent. The                                                               
nominees come  from the  chief justice so  it's no  surprise that                                                               
three are attorneys and one is the wife of a noted justice.                                                                     
                                                                                                                                
SENATOR  ELTON  remarked it  is  understandable,  but it  doesn't                                                               
speak  to   the  qualifications   of  those  who   are  selected.                                                               
Referencing  the prohibitions  relating to  employment, he  asked                                                               
whether people who might have a  contract with the state would be                                                               
prohibited  from  being on  the  ethics  committee. For  instance                                                               
would a substitute teacher be excluded?                                                                                         
                                                                                                                                
SENATOR SEEKINS  replied a substitute teacher  would qualify, but                                                               
not someone with a contract.                                                                                                    
                                                                                                                                
SENATOR ELTON  remarked it  seems constraining  to draw  a bright                                                               
line. It may be preferable to  have the chief justice forward the                                                               
names  without   restriction  and  then  the   legislature  could                                                               
exercise its judgment based on the individual's background.                                                                     
                                                                                                                                
SENATOR SEEKINS said there are  already restrictions. It's common                                                               
sense  to  say you  have  to  look  at  diversity. Of  the  three                                                               
attorneys  that   are  currently  on  the   committee,  two  have                                                               
contracts  with the  state for  Office of  Public Advocacy.  He'd                                                               
like to  see geographic  and employment diversity  and he  has no                                                               
problem  reserving a  slot,  but he's  nervous  when you  suggest                                                               
more.                                                                                                                           
                                                                                                                                
SENATOR  HUGGINS  referenced  a  previous  discussion  about  his                                                               
potato farmer from  Palmer having little opportunity  to serve on                                                               
the ethics  committee unless he  knew the chief justice.  If this                                                               
gives him a  better opportunity then I'm all for  it, he said. He                                                               
asked whether it does that.                                                                                                     
                                                                                                                                
SENATOR  SEEKINS said  that's the  intent  and the  farmer has  a                                                               
better chance under this structure than the current structure.                                                                  
                                                                                                                                
SENATOR  ELTON  said he'd  challenge  the  notion that  the  only                                                               
people who get  appointed know the chief justice,  but that aside                                                               
this doesn't get  to that issue. This would just  narrow the band                                                               
of friends from which the chief justice could appoint.                                                                          
                                                                                                                                
5:43:30 PM                                                                                                                    
                                                                                                                                
Senator Therriault rejoined the meeting.                                                                                        
                                                                                                                                
SENATOR SEEKINS  asserted that  this is  intended to  broaden the                                                               
perspective.                                                                                                                    
                                                                                                                                
5:45:02 PM                                                                                                                    
                                                                                                                                
VICE-CHAIR WAGONER  gave Chair Therriault an  update and returned                                                               
the gavel.                                                                                                                      
                                                                                                                                
CHAIR THERRIAUT asked Ms. Anderson to come forward.                                                                             
                                                                                                                                
JOYCE  ANDERSON, Administrator,  Select Committee  on Legislative                                                               
Ethics,  stated that  the  committee had  not  reviewed the  bill                                                               
since it was just introduced.  She could state support for issues                                                               
that the  committee had addressed  in the past and  she'd comment                                                               
on those sections first.                                                                                                        
                                                                                                                                
The committee supports  having an alternate member sit  in when a                                                               
regular member  is unable to  attend a complaint  hearing because                                                               
it  would  speed the  process.  If  the alternate  legislator  or                                                               
public member sits in, it would  be beneficial for them to sit in                                                               
throughout the complaint process.                                                                                               
                                                                                                                                
The  committee has  also previously  discussed and  would support                                                               
the  provision  for the  people  who  are interviewed  during  an                                                               
ethics complaint  to fall under the  confidentiality provision of                                                               
the statute. The committee has always felt that is important.                                                                   
                                                                                                                                
She referenced advisory opinions addressed  in Section 6 and said                                                               
more discussions  would ensue. Currently the  person who requests                                                               
an  advisory opinion  has the  option to  have the  discussion in                                                               
either  an  open  or executive  session.  If  confidentiality  is                                                               
waived,  the  discussion takes  place  in  an open  session.  She                                                               
supported  the point  that  everyone named  would  have to  waive                                                               
confidentiality to have the discussion occur in an open session.                                                                
                                                                                                                                
She  disagreed  with  Senator   Seekins  proposal  that  advisory                                                               
opinions  remain confidential.  All advisory  opinions should  be                                                               
public, she said; that's what they're there for.                                                                                
                                                                                                                                
5:50:07 PM                                                                                                                    
                                                                                                                                
SENATOR  ELTON  said  he  thought names  were  scrubbed  when  an                                                               
advisory opinion is released.                                                                                                   
                                                                                                                                
MS. ANDERSON said that is correct.                                                                                              
                                                                                                                                
SENATOR ELTON  asked for verification  that if this were  to pass                                                               
and a  person who is  not named refuses to  waive confidentiality                                                               
then that advisory opinion wouldn't be made public.                                                                             
                                                                                                                                
MS. ANDERSON replied that's the way she interprets the bill.                                                                    
                                                                                                                                
MS. ANDERSON  directed attention to  Section 1, which makes  it a                                                               
class A  misdemeanor to  discuss an  ethics complaint  or release                                                               
information  about an  ethics complaint.  She  reported that  the                                                               
commission chair  feels that  could make  the public  hesitant to                                                               
file  a complaint.  Therefore, she  issued a  word of  caution in                                                               
adopting that provision.                                                                                                        
                                                                                                                                
Section  1 of  the bill  says a  person shall  be charged  with a                                                               
class A  misdemeanor, but it  doesn't say the complaint  would be                                                               
dismissed. Under  SB 187 the  complaint would go forward  and the                                                               
commission supports that as an option for the committee.                                                                        
                                                                                                                                
5:53:39 PM                                                                                                                    
                                                                                                                                
CHAIR  THERRIAULT  said under  the  current  language if  someone                                                               
makes an allegation and delivers  the information to the press at                                                               
essentially the  same time then  the complaint is  dismissed. The                                                               
result is that the battle is fought in the press.                                                                               
                                                                                                                                
The sponsor could  say whether he crafted the bill  so that there                                                               
is  a  penalty for  hunting  the  headline. Certainly  legitimate                                                               
allegations should  come in and  proceed through the  system, but                                                               
the way the system is now it lends itself to abuse.                                                                             
                                                                                                                                
MS.  ANDERSON agreed  with  the analysis  but  continued to  urge                                                               
caution.  Senator Elton's  example  of discussing  an issue  with                                                               
your spouse is a good case in point, she said.                                                                                  
                                                                                                                                
SENATOR ELTON stated  that he would be the last  to argue that no                                                               
previous ethics complaints were spurious  and it wouldn't be hard                                                               
to say that some of  those complaints were politically motivated.                                                               
However, the new  provision in Section 1 doesn't get  to the root                                                               
of that issue,  he said. Someone could go to  the press regarding                                                               
an alleged  ethics violation and  not actually file  a complaint.                                                               
They  wouldn't be  subject  to the  class  A misdemeanor  penalty                                                               
unless they filed the complaint.                                                                                                
                                                                                                                                
CHAIR THERRIAULT  responded the  press isn't interested  in being                                                               
used  as a  political  tool. An  alleged  ethics violation  would                                                               
probably be treated differently than a pending ethics complaint.                                                                
                                                                                                                                
SENATOR  ELTON  said  information   is  transmitted  in  lots  of                                                               
different  ways.  Although  he'd  like  to  say  that  blogs  and                                                               
organization newsletters and such are  just as responsible as the                                                               
commercial press, he isn't sure that's the case.                                                                                
                                                                                                                                
CHAIR  THERRIAULT stated  that no  one should  be precluded  from                                                               
making  his  or  her  views  known,  but  he  believes  that  the                                                               
professional press would verify information.                                                                                    
                                                                                                                                
MS.  ANDERSON   said  information  about  whether   there  was  a                                                               
complaint or not is not released.                                                                                               
                                                                                                                                
CHAIR THERRIAULT asked if there were further comments.                                                                          
                                                                                                                                
MS.  ANDERSON said  she had  comments on  Sections 7  through 14,                                                               
which relate to the actual complaint process.                                                                                   
                                                                                                                                
She interprets the  bill to mean that not all  decisions from the                                                               
ethics committee  would be considered public.  The only decisions                                                               
that would  be public would  be those that  went to a  hearing or                                                               
the ones  that were forwarded to  either the Senate or  the House                                                               
after probable cause  was found. The noted that  the sponsor said                                                               
that isn't his intent and that he would make some changes.                                                                      
                                                                                                                                
It's  been agreed  that  dismissal orders  should  not be  public                                                               
because  that means  that there  wasn't probable  cause. However,                                                               
she  said, the  public should  be  aware when  there is  probable                                                               
cause because  it's an accountability  issue. She noted  that the                                                               
sponsor talked about changing that part of the bill as well.                                                                    
                                                                                                                                
The way the  bill is now, the hearing would  be confidential, but                                                               
as she  discussed with the  sponsor, the hearing  should continue                                                               
to be public because probable  cause would have been established.                                                               
It's like a grand jury that has  found merit and is moving to the                                                               
next  stage. The  noted that  the sponsor  agreed to  change that                                                               
part of the bill.                                                                                                               
                                                                                                                                
She reiterated  the sponsor's assertion  that the section  on the                                                               
open meeting statute was an error and would be deleted.                                                                         
                                                                                                                                
The final section  that was repealed related  to public hearings.                                                               
She  didn't discuss  that with  the  sponsor in  detail, but  she                                                               
assumed that he would add it  back because it deals with the fact                                                               
that the hearing is public.                                                                                                     
                                                                                                                                
There were no questions.                                                                                                        
                                                                                                                                
6:01:22 PM                                                                                                                    
                                                                                                                                
MERLE THOMPSON, Susitna Valley resident,  aired the view that the                                                               
Ethics Committee  does a fine  job, but  there is a  problem with                                                               
the public  trust. He suggested  there is reason that  the public                                                               
feels the way it does.                                                                                                          
                                                                                                                                
He announced that  he doesn't care for the  secrecy provisions in                                                               
the bill,  but the  real ethics problems  center on  conflicts of                                                               
interest and  how the legislature  deals with them.  That's where                                                               
the bright lines are needed and  they aren't there. When you have                                                               
a  conflict of  interest  it'd  be a  simple  matter of  recusing                                                               
yourself, but  it's not  happening. That's  why there's  a public                                                               
trust problem, he declared.                                                                                                     
                                                                                                                                
The right  things aren't being  addressed here, he said.  It kind                                                               
of  reminds me  of Solzhenitsyn's  Gulag Archipelago  ["The Gulag                                                               
Archipelago  1918-1956"] and  his beet  top soup.  "We're getting                                                               
this weak  ethical soup. A beet  top soup for the  people and the                                                               
chunks of beets for the legislators  and it doesn't seem right to                                                               
me."                                                                                                                            
                                                                                                                                
6:06:02 PM                                                                                                                    
                                                                                                                                
CHAIR THERRIAULT said it would seem  that he would have a problem                                                               
with the grand jury system  because there's nothing about it that                                                               
is public.                                                                                                                      
                                                                                                                                
MR. THOMPSON replied  that isn't a direct  parallel. As Aristotle                                                               
said, "The office will show the  man." He suggested that it would                                                               
benefit  legislators to  feel that  the  public holds  them to  a                                                               
higher standard.                                                                                                                
                                                                                                                                
CHAIR THERRIAULT said  the ethics committee is acting  as a grand                                                               
jury and the fact that  there is confidentiality until a decision                                                               
is made isn't a problem with the general public.                                                                                
                                                                                                                                
MR. THOMPSON  said he would  beg to differ. Calling  the previous                                                               
ethics rule change a strike  against open government, he asserted                                                               
that the proposed bill takes it a step further.                                                                                 
                                                                                                                                
6:09:31 PM                                                                                                                    
                                                                                                                                
SENATOR WAGONER  remarked he had  four or five  ethics complaints                                                               
filed against him two years ago  and every one was false. He took                                                               
issue with  the idea  that unfounded  ethics complaints  that are                                                               
filed for political gain should become public.                                                                                  
                                                                                                                                
MR.  THOMPSON responded  he  must  not have  been  harmed by  the                                                               
process because  he reads newspapers  quite often he  didn't hear                                                               
anything about any of the ethics complaints.                                                                                    
                                                                                                                                
SENATOR WAGONER  said they weren't  founded so they  weren't made                                                               
public. Had  there been  any substantial  truth the  public would                                                               
have probably  been informed. He reiterated  Senator Therriault's                                                               
argument that  the ethics  committee operates the  same way  as a                                                               
grand jury. Unsubstantiated claims  aren't made public because to                                                               
do so would besmirch the individual's reputation.                                                                               
                                                                                                                                
MR. THOMPSON  pressed the  view that  his reputation  hadn't been                                                               
damaged.                                                                                                                        
                                                                                                                                
CHAIR  THERRIAULT made  the point  that the  reason that  Senator                                                               
Wagoner  wasn't  damaged is  because  the  unfounded claims  were                                                               
dealt  with  in   a  confidential  manner.  He   said  he  didn't                                                               
understand what the argument would be to change that system.                                                                    
                                                                                                                                
MR. THOMPSON  reported he  didn't have any  problem with  how the                                                               
system was  working two years ago,  but it was changed  last year                                                               
and this bill proposes to change  it again. "We've had a plethora                                                               
of ethical  lapses from different  branches of government  in the                                                               
last  two years  and I  think that's  what people  are responding                                                               
to." The changes  that are being made aren't  addressing the real                                                               
problems, he declared.                                                                                                          
                                                                                                                                
6:12:45 PM                                                                                                                    
                                                                                                                                
SENATOR HUGGINS commented there should  be a disincentive to file                                                               
complaints with no basis.                                                                                                       
                                                                                                                                
MR. THOMPSON  said he didn't  need to reiterate that  he believes                                                               
that there are  ethical lapses that aren't being dealt  with in a                                                               
particularly good  way. We seem  to be  taking it the  other way,                                                               
which  is  to  put  the  accuser under  more  question  than  the                                                               
accused.                                                                                                                        
                                                                                                                                
SENATOR  ELTON  directed attention  to  the  last section,  which                                                               
repeals open meetings  and AS 24.60.170(m). He  asked the sponsor                                                               
to clarify whether  the suggestion is to take  both repealers out                                                               
or just the one.                                                                                                                
                                                                                                                                
SENATOR SEEKINS  replied one  would be taken  out because  it was                                                               
put in  by mistake.  The other  would be put  back in  after some                                                               
modification.                                                                                                                   
                                                                                                                                
SENATOR ELTON asked for verification  that AS 24.60.037(c), which                                                               
addresses the  caucus and political  strategy would be  taken out                                                               
and AS 24.60.170(m) would be tweaked.                                                                                           
                                                                                                                                
SENATOR SEEKINS  replied the whole  section on caucus  would stay                                                               
in the  bill. It would  be addressed  in a manner  that clarifies                                                               
the  areas   of  responsibility  for  the   legislature  and  the                                                               
committee.                                                                                                                      
                                                                                                                                
6:16:10 PM                                                                                                                    
                                                                                                                                
There were no further questions or testimony.                                                                                   
                                                                                                                                
CHAIR THERRIAULT held SB 187 in committee.                                                                                      
               SB 187-LEGISLATIVE ETHICS/MEETINGS                                                                           
                                                                                                                              
CHAIR   GENE  THERRIAULT   announced  SB   187  to   be  up   for                                                               
consideration.                                                                                                                  
                                                                                                                              
9:19:53 PM                                                                                                                    
                                                                                                                                
SENATOR RALPH SEEKINS, sponsor, reviewed the proposed changes.                                                                  
                                                                                                                                
Section 2  is the  same as  the original  version and  restates a                                                               
truism that exists.                                                                                                             
                                                                                                                                
Section 3 specifically names the open meetings guidelines.                                                                      
                                                                                                                                
Section 4  follows the commonsense  guideline of not  loading the                                                               
Select  Committee  on  Legislative  Ethics with  people  who  are                                                               
involved in government.                                                                                                         
                                                                                                                                
Section 5 is unchanged from the original version.                                                                               
                                                                                                                                
CHAIR THERRIAULT moved  version F as the  working document. There                                                               
was no objection.                                                                                                               
                                                                                                                                
SENATOR THOMAS WAGONER  read Section 4(c) and  asked about people                                                               
who are members of no political party.                                                                                          
                                                                                                                                
SENATOR  SEEKINS questioned  whether  non-party isn't  in fact  a                                                               
political party.  That point might  need to be addressed  at some                                                               
point, he said.                                                                                                                 
                                                                                                                                
SENATOR WAGONER said  he didn't believe that  NP [nonpartisan] is                                                               
recognized as  a political party  in Alaska  yet a lot  of people                                                               
are registered that way.                                                                                                        
                                                                                                                                
SENATOR  SEEKINS opined  that as  currently written  all of  them                                                               
could technically be nonparty.                                                                                                  
                                                                                                                                
SENATOR WAGONER suggested that it be addressed.                                                                                 
                                                                                                                                
SENATOR  SEEKINS clarified  that the  change in  Section 5  is to                                                               
allow   an  alternate   member  to   attend  all   committee  and                                                               
subcommittee meetings and hearings rather than just hearings.                                                                   
                                                                                                                                
SENATOR  ELTON raised  the  point  that there  is  a bright  line                                                               
prohibiting  Senate  members  from going  to  House  subcommittee                                                               
meetings and vice versa. If  Section 5 were interpreted strictly,                                                               
an alternate legislator could go to either.                                                                                     
                                                                                                                                
CHAIR THERRIAULT  pointed out  the next  line says  the alternate                                                               
may attend to the same extent as the regular member.                                                                            
                                                                                                                                
SENATOR  SEEKINS said  it was  deliberately crafted  so that  the                                                               
alternate gets no more than the regular legislative member.                                                                     
                                                                                                                                
SENATOR ELTON agreed.                                                                                                           
                                                                                                                                
SENATOR SEEKINS said Section 6  relates to requesting an opinion.                                                               
It clarifies  that everyone has  the same opportunity  to protect                                                               
his or her reputation.                                                                                                          
                                                                                                                                
SENATOR ELTON  informed the  committee that  when the  review was                                                               
complete he  would motion to  strike the new language  in Section                                                               
6. He  noted that advisory  opinions are scrubbed  of identifying                                                             
characteristics  and  they  provide  information  that  might  be                                                               
helpful  in  guiding  behavior.  The  addition  of  the  proposed                                                               
language would constrain access to advisory opinions.                                                                           
                                                                                                                                
9:26:23 PM                                                                                                                    
                                                                                                                                
SENATOR SEEKINS disagreed.                                                                                                      
                                                                                                                                
SENATOR ELTON read the proposed  language and made the point that                                                               
the requester could say they  didn't want the advisory opinion to                                                               
be released.                                                                                                                    
                                                                                                                                
CHAIR THERRIAULT asked Ms. Anderson to come forward.                                                                            
                                                                                                                                
9:27:10 PM                                                                                                                    
                                                                                                                                
JOYCE  ANDERSON, Administrator,  Select Committee  on Legislative                                                               
Ethics, read AS 24.60.150(a)(2).                                                                                                
                                                                                                                                
SENATOR SEEKINS asserted that the  proposed language in Section 6                                                               
doesn't disallow sanitized versions.                                                                                            
                                                                                                                                
CHAIR THERRIAULT reread  the provision and said  it's a statutory                                                               
duty to the committee.                                                                                                          
                                                                                                                                
MS. ANDERSON offered the opinion  that the proposed language is a                                                               
bit confusing if you don't  read the other section. She suggested                                                               
changing the language  so it doesn't look as  though the advisory                                                               
opinion remains confidential and isn't published.                                                                               
                                                                                                                              
CHAIR THERRIAULT asked if making  reference to AS 24.60.150(a)(2)                                                               
would suffice.                                                                                                                  
                                                                                                                                
SENATOR  SEEKINS argued  that there's  a  difference between  the                                                               
sections. The  proposed language  says the information  about the                                                               
opinion  is  confidential while  the  other  section talks  about                                                               
publishing  semi-annual  summaries   of  decisions  and  advisory                                                               
opinions with  sufficient deletions  in the summaries  to prevent                                                               
disclosure of a person's identity.                                                                                              
                                                                                                                                
CHAIR  THERRIAULT asked  Senator Elton  if his  concern would  be                                                               
alleviated if it was made  clear that AS 24.60.150(a)(2) remained                                                               
operative and that the sanitized versions are still published.                                                                  
                                                                                                                                
SENATOR ELTON  replied the language  in the other  section speaks                                                               
only  to summaries  and not  to  opinions. It's  always been  the                                                               
committee's  practice  to  release  a  sanitized  opinion  not  a                                                               
summary of the opinion. The documents aren't one and the same.                                                                  
                                                                                                                                
MS.  ANDERSON agreed  with Senator  Elton; public  decisions that                                                               
are issued  are not summarized.  He's also correct  that advisory                                                               
opinions  are sanitized  of information  when drafted.  Summaries                                                               
have never been published; it's  the public decision and advisory                                                               
opinion itself that is published.                                                                                               
                                                                                                                                
SENATOR  SEEKINS  maintained  that   an  opinion  that  has  been                                                               
sanitized is  a summary of  the opinion. Nonetheless, he  said he                                                               
was willing  to look at the  issue to make sure  that a sanitized                                                               
version of an opinion isn't precluded.                                                                                          
                                                                                                                                
Sections  7 through  14  are to  ensure  that confidentiality  is                                                               
maintained  until a  finding of  probable cause.  A finding  that                                                               
only recommends corrective action shouldn't be made public.                                                                     
                                                                                                                                
MS.  ANDERSON  explained  that since  the  ethics  committee  was                                                               
established  in 1992,  57 complaints  have  been filed.  Probable                                                               
cause  was  found in  10  cases;  a  mix  of probable  cause  and                                                               
dismissed allegations  was found  in 6 cases;  and 41  cases were                                                               
dismissed entirely.                                                                                                             
                                                                                                                                
When  probable  cause  was  established,  corrective  action  was                                                               
recommended. That  included: writing a  letter of apology  to the                                                               
House or Senate, developing office  policy regarding use of staff                                                               
time,  attending  training  sessions, removing  private  business                                                               
from legislative setting.                                                                                                       
                                                                                                                                
Since 1992  there have  been three public  hearings and  just one                                                               
complaint has resulted  in the imposition of  sanctions. She said                                                               
that under the  proposed policy only 4 decisions  would have been                                                               
issued from 1992  to the present. All others would  not have been                                                               
issued.                                                                                                                         
                                                                                                                                
SENATOR SEEKINS asked if that was out of 10.                                                                                    
                                                                                                                                
MS.  ANDERSON  clarified that  there  were  16 decisions  issued.                                                               
Decisions were  also issued for  those that didn't  have probable                                                               
cause because  current statute says  the cases are public  if the                                                               
complaint goes to  an investigative stage. If  not, the complaint                                                               
is completely dismissed.                                                                                                        
                                                                                                                                
MS  ANDERSON  said  she  would   comment  further  following  the                                                               
presentation.                                                                                                                   
                                                                                                                                
9:37:17 PM                                                                                                                    
                                                                                                                                
SENATOR SEEKINS read  AS 24.60.150(a)(2) and said  that's how the                                                               
information comes down.                                                                                                         
                                                                                                                                
He asked  for an amendment to  delete lines 20-25 on  page 7. His                                                               
intention is to  pursue every complaint, but  to hold responsible                                                               
those people who break confidentiality.                                                                                         
                                                                                                                              
CHAIR   THERRIAULT  recapped   previous  discussion   about  what                                                               
currently happens  when someone  brings an  action to  generate a                                                               
headline. If  the person discloses  the action, the  complaint is                                                               
dismissed.                                                                                                                      
                                                                                                                                
SENATOR   SEEKINS  argued   that  the   complaint  isn't   really                                                               
dismissed.                                                                                                                      
                                                                                                                                
9:40:09 PM                                                                                                                    
                                                                                                                                
CHAIR THERRIAULT asked  for verification that if  the language is                                                               
stricken  then any  complaint, whether  it is  disclosed or  not,                                                               
goes forward and the discloser is punished.                                                                                     
                                                                                                                                
SENATOR   SEEKINS  said   yes;  the   penalty  is   for  breaking                                                               
confidentiality.                                                                                                                
                                                                                                                                
CHAIR THERRIAULT  asked about the  change in Section 15,  page 8,                                                               
line 27. The words "or obtained" were added.                                                                                    
                                                                                                                                
SENATOR SEEKINS  explained that  the addition  is to  broaden the                                                               
requirements.                                                                                                                   
                                                                                                                                
SENATOR ELTON  asked if there  is a difference  between documents                                                               
filed with the committee and documents filed by the committee.                                                                  
                                                                                                                                
SENATOR  SEEKINS  said  the  intent  is  to  include  information                                                               
obtained rather than just disclosed.                                                                                            
                                                                                                                                
SENATOR ELTON added, "Or filed."                                                                                                
                                                                                                                                
SENATOR SEEKINS  responded filed  doesn't cover it  because there                                                               
are  disclosure  processes. It's  a  term  of  art in  the  legal                                                               
profession, he said.                                                                                                            
                                                                                                                                
CHAIR THERRIAULT  provided an example and  suggested the addition                                                               
is more inclusive.                                                                                                              
                                                                                                                                
SENATOR  SEEKINS remarked  it's better  to be  redundant than  to                                                               
have a loophole.                                                                                                                
                                                                                                                                
SENATOR ELTON noted that subsection (s)  in Section 15 is new and                                                               
asked if  a person  who said  they intended  to file  a complaint                                                               
would be subject to the penalty.                                                                                                
                                                                                                                                
SENATOR  SEEKINS replied  as long  as  a person  didn't file  the                                                               
complaint they wouldn't be subject to the penalty.                                                                              
                                                                                                                                
SENATOR ELTON pointed out that it  says filing of or intention to                                                               
file. If a person disclosed an  intention to file a complaint and                                                               
hasn't  filed, he  asked if  that person  would be  subject to  a                                                               
class A misdemeanor.                                                                                                            
                                                                                                                                
SENATOR SEEKINS  said he didn't  believe it would  be interpreted                                                               
that  way.  The  intention  is  if  someone  intends  to  file  a                                                               
complaint  and subsequently  files  it. He  had  no problem  with                                                               
adding language about subsequently filing the complaint.                                                                        
                                                                                                                                
9:44:24 PM                                                                                                                    
                                                                                                                                
SENATOR ELTON said  that would clarify and narrow  the ability to                                                               
charge someone with  a class A misdemeanor.  I'm comfortable with                                                               
the  addition,  he said.  I'm  not  saying I'm  comfortable  with                                                               
Section 15.                                                                                                                     
                                                                                                                                
He   suggested  the   committee  consider   inserting  "that   is                                                               
subsequently filed" after the word "complaint" on line 17.                                                                      
                                                                                                                                
SENATOR SEEKINS said he had no objection.                                                                                       
                                                                                                                                
SENATOR ELTON moved the amendment.                                                                                              
                                                                                                                                
CHAIR THERRIAULT suggested  it be a conceptual  amendment to give                                                               
the drafter some latitude.                                                                                                      
                                                                                                                                
CHAIR THERRIAULT found no objection to conceptual Amendment 1.                                                                  
                                                                                                                                
He  noted  that the  repealers  were  dropped from  the  original                                                               
version.                                                                                                                        
                                                                                                                                
SENATOR SEEKINS agreed saying they shouldn't have been there.                                                                   
                                                                                                                                
9:46:02 PM                                                                                                                    
                                                                                                                                
SENATOR ELTON directed  attention to Section 10 and  asked if his                                                               
interpretation  was correct  that under  this provision  he would                                                               
never know  that his staff  member committed an  ethics violation                                                               
if  he or  she completed  the recommended  corrective action.  An                                                               
ethics violation  is something  that is  fairly important  for an                                                               
employer to know, he asserted.                                                                                                  
                                                                                                                                
SENATOR  SEEKINS said  it's correct  that  the employer  wouldn't                                                               
know unless the employee chose to disclose the violation.                                                                       
                                                                                                                                
SENATOR ELTON argued  that the employing entity should  know if a                                                               
violation occurred and was confirmed by the ethics committee.                                                                   
                                                                                                                                
SENATOR  SEEKINS suggested  that any  of the  legislators present                                                               
would know  about a staff  member's ethics violation  long before                                                               
the matter was resolved.                                                                                                        
                                                                                                                                
SENATOR ELTON responded  if that's true then  someone committed a                                                               
class A misdemeanor by leaking the information.                                                                                 
                                                                                                                                
SENATOR SEEKINS  pointed out that  the person who is  charged has                                                               
the right  to disclose the information  at any time to  anyone so                                                               
he didn't see how that could happen.                                                                                            
                                                                                                                                
SENATOR  ELTON replied  he could  see  how it  could happen  very                                                               
easily. The  person who was  charged might not want  the employer                                                               
to  know about  the violation,  but someone  who was  interviewed                                                               
might.                                                                                                                          
                                                                                                                                
SENATOR  SEEKINS  said  the  employer   would  have  a  difficult                                                               
decision  if  someone  other  than  the  violator  disclosed  the                                                               
information.                                                                                                                    
                                                                                                                                
CHAIR THERRIAULT made the point  that under the grand jury system                                                               
an employer doesn't  have a right to know about  any charges that                                                               
were dismissed. As  a legislator, should I have a  higher duty of                                                               
a  right to  know about  an  allegation brought  against a  staff                                                               
member than a private business employer, he asked.                                                                              
                                                                                                                                
SENATOR ELTON  said, absolutely, it's different.  The Legislative                                                               
Ethics Law governs the behavior  of legislators and staff and I'd                                                               
want  to know  if a  staff member  of mine  violated the  law and                                                               
agreed to  the corrective  action. That  violation occurred  in a                                                               
public trust  that we  both swore  to uphold.  Legislators cannot                                                               
divorce  themselves  from what  their  staff  members do  in  the                                                               
office. Their actions  reflect back on the  legislators who hired                                                               
them.                                                                                                                           
                                                                                                                                
Using the  example of a criminal  complaint that went to  a grand                                                               
jury and  was dismissed isn't  the same  issue, he said.  In this                                                               
instance the person  could be guilty and you  still wouldn't know                                                               
unless  the employee  tells  you about  it. "We  have  a duty  as                                                               
legislators to make sure our staff follows the law," he said.                                                                   
                                                                                                                                
CHAIR  THERRIAULT raised  a question  about a  private employer's                                                               
right to know an employee's business.                                                                                           
                                                                                                                                
SENATOR SEEKINS  announced that he  wanted to correct  the record                                                               
because his employees haven't taken an oath of office.                                                                          
                                                                                                                                
It's  a  delicate  balance,  he said.  If  the  ethics  committee                                                               
requires a corrective  action, should that be a  matter of public                                                               
record or should there be  a level of confidentiality? That's the                                                               
decision  that  has  to  be   made,  but  employees  working  for                                                               
legislators don't  have a greater  responsibility than  any other                                                               
employee  working  anywhere  else  in the  state  of  Alaska,  he                                                               
asserted.                                                                                                                       
                                                                                                                                
SENATOR HUGGINS asked Ms. Anderson to comment on her experience.                                                                
                                                                                                                                
MS. ANDERSON said a point she'd  like to make is that even though                                                               
there was corrective  action, the person was  found with probable                                                               
cause. That's similar  to a guilty verdict even  though there was                                                               
corrective action. Looking back to  1992 she didn't see any cases                                                               
that didn't  have corrective action  because what the  person was                                                               
doing  was violating  the ethics  code.  There was  a finding  of                                                               
probable cause in all instances.                                                                                                
                                                                                                                                
9:56:35 PM                                                                                                                    
                                                                                                                                
SENATOR ELTON said  if a court orders corrective  action there is                                                               
a  public record  and  that's the  way it  should  be near.  It's                                                               
ironic that  the proposal is  to go  beyond that. Not  only would                                                               
the matter be  private, the employer wouldn't  have any knowledge                                                               
of an  ethics violation.  As an  employer I'd want  to know  so I                                                               
could make  a judgment on whether  or not that's behavior  that I                                                               
want  to tolerate  or make  a corrective  action beyond  what the                                                               
ethics committee suggested, he said.                                                                                            
                                                                                                                                
SENATOR  SEEKINS disputed  the statement  that his  employees are                                                               
reflective of  him. "Their  actions may reflect  on me.  They may                                                               
affect my reputation by their  actions, but they certainly aren't                                                               
reflective of me," he said.                                                                                                     
                                                                                                                                
CHAIR THERRIAULT asked if that's the only impact of Section 10.                                                                 
                                                                                                                                
SENATOR  SEEKINS interjected  if the  legislature wanted  a minor                                                               
infraction that  has a  minor correction  to be  public knowledge                                                               
then he would go along. He said  he was just trying to err on the                                                               
side of privacy and not to make people criminals.                                                                               
                                                                                                                                
9:59:00 PM                                                                                                                    
                                                                                                                                
CHAIR THERRIAULT asked Ms. Anderson  to comment on his comparison                                                               
to  the grand  jury and  that if  charges were  brought then  the                                                               
matter would be public.                                                                                                         
                                                                                                                                
SENATOR  SEEKINS interjected  to say  that  he would  agree to  a                                                               
conceptual amendment  that says that the  line of confidentiality                                                               
ends at  probable cause  rather than at  the point  of corrective                                                               
action.                                                                                                                         
                                                                                                                                
9:59:43 PM                                                                                                                    
                                                                                                                                
CHAIR THERRIAULT asked if that  would be accomplished by deleting                                                               
Section 10.                                                                                                                     
                                                                                                                                
SENATOR ELTON noted the new language on lines 22 through 26.                                                                    
                                                                                                                                
MS. ANDERSON  read subsection (m)  and said that  perhaps Senator                                                               
Seekins didn't realize that was reinserted.                                                                                     
                                                                                                                                
SENATOR SEEKINS said  it was put back in because  it needed to be                                                               
modified  rather  than   deleted.  He  had  no   problem  with  a                                                               
conceptual amendment  so that once probable  cause is established                                                               
the matter would become public.                                                                                                 
                                                                                                                                
MS.   ANDERSON   stated  that   by   reinserting   (m)  that   is                                                               
accomplished.                                                                                                                   
                                                                                                                                
10:01:31 PM                                                                                                                   
                                                                                                                                
CHAIR THERRIAULT  noted that  Senator Seekins  suggested deleting                                                               
the language on page 7, lines 20-25.                                                                                            
                                                                                                                                
SENATOR SEEKINS agreed and said  his intent is to prosecute every                                                               
allegation of  a violation of  the ethics act to  a determination                                                               
of whether or not there was probable cause.                                                                                     
                                                                                                                                
CHAIR THERRIAULT  moved to  strike language on  page 7,  lines 20                                                               
through 25 as Amendment 2.                                                                                                      
                                                                                                                              
SENATOR  ELTON  questioned  whether  the net  effect  is  that  a                                                               
complaint  doesn't need  to be  dismissed  if confidentiality  is                                                               
broken.                                                                                                                         
                                                                                                                                
SENATOR SEEKINS said yes.                                                                                                       
                                                                                                                                
SENATOR ELTON  removed his  objection if it  was implied  that he                                                               
had one.                                                                                                                        
                                                                                                                                
CHAIR THERRIAULT found there was no objection to Amendment 2.                                                                   
                                                                                                                                
Finding  no further  questions or  suggested amendments  he asked                                                               
for the will of the committee.                                                                                                  
                                                                                                                                
SENATOR  WAGONER motioned  to report  CSSB 187(STA)  and attached                                                               
fiscal notes from committee with individual recommendations.                                                                    
                                                                                                                                
SENATOR ELTON objected  and stated that his  objection centers on                                                             
the class A misdemeanor penalty  for any sort of disclosure. That                                                               
sets  up a  situation  in which  I  couldn't tell  my  wife if  a                                                               
complaint is filed against me, he said.                                                                                         
                                                                                                                                
CHAIR THERRIAULT asked if his  concern relates to the severity of                                                               
the sanction or the fact that there's a sanction at all.                                                                        
                                                                                                                                
SENATOR ELTON  replied a sanction  was adopted just last  year to                                                               
address  this issue;  the sanction  was  dismissal. Although  the                                                               
complaint is  dismissed, the ethics  committee had the  option of                                                               
re-filing  the complaint.  Certainly if  the allegation  is of  a                                                               
serious  nature an  investigation should  go forward  because the                                                               
bad act of a complainant shouldn't allow somebody to skate.                                                                     
                                                                                                                                
Having served  on the ethics  committee he said he  believes that                                                               
some complaints have  been filed by bad  actors. However, because                                                               
the  press and  the committee  acted in  a responsible  manner in                                                               
those  cases,  neither  political careers  nor  reputations  were                                                               
damaged.                                                                                                                        
                                                                                                                                
Although  it's hard  to quantify  or prove,  the bill  provides a                                                               
disincentive to  filing a  complaint. For  instance a  person who                                                               
discusses  an  issue  with  someone   and  subsequently  files  a                                                               
complaint would find that they had broken the law.                                                                              
                                                                                                                                
SENATOR SEEKINS  responded, "This  same statute,  basically, came                                                               
from Oklahoma." This is a serious  matter and we need to do this,                                                               
he said.                                                                                                                        
                                                                                                                                
10:07:40 PM                                                                                                                   
                                                                                                                                
SENATOR ELTON  said a  person wouldn't know  that they  broke the                                                               
law  until they  file the  complaint  and are  told. Further,  he                                                               
said, it's not  fair to keep using the grand  jury example. There                                                               
are all sorts  of reasons that someone might end  up in court and                                                               
the  grand  jury  example  covers  just a  portion  of  the  fact                                                               
situations that someone with a legitimate complaint might face.                                                                 
                                                                                                                                
CHAIR  THERRIAULT pointed  out that  all other  matters would  be                                                               
civil.                                                                                                                          
                                                                                                                                
SENATOR ELTON responded  they're civil matters that  could cost a                                                               
lot more than $10,000.                                                                                                          
                                                                                                                                
CHAIR THERRIAULT  said if the  state is bringing the  charge then                                                               
it's through the grand jury process.                                                                                            
                                                                                                                                
SENATOR  ELTON replied  it might  not be  the state  bringing the                                                               
charge.  It could  be you  or me  or anybody.  It's not  just the                                                               
state that files complaints with the ethics committee.                                                                          
                                                                                                                                
SENATOR  SEEKINS  drew on  his  experience  from serving  on  the                                                               
Judiciary  Committee  and said  that  mensrea  is inferred  in  a                                                               
criminal complaint. A person has to have knowingly disclosed.                                                                   
                                                                                                                                
CHAIR THERRIAULT  called for a  roll call  vote on the  motion to                                                               
move  the bill  from committee.  The motion  passed 3  to 1  with                                                               
Senators Wagoner, Huggins, and Therriault  voting yea and Senator                                                               
Elton voting nay.                                                                                                               
                                                                                                                                
CSSB 187(STA) moved to the next committee of referral.                                                                          
                                                                                                                                

Document Name Date/Time Subjects