Legislature(2017 - 2018)
11/01/2018 11:00 AM House ETH
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* first hearing in first committee of referral
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ALASKA STATE LEGISLATURE
SELECT COMMITTEE ON LEGISLATIVE ETHICS
NOVEMBER 1, 2018
HOUSE SUBCOMMITTEE
1. Call the Meeting to Order
Chair Dennis "Skip" Cook called the meeting to order at
11:42 a.m.
Roll Call
Dennis "Skip" Cook
Joyce Anderson
Deb Fancher
Lee Holmes
Conner Thomas
Representative Chris Tuck
Others
Jerry Anderson
Jacqui Yeagle
2. Approval of Agenda
Conner Thomas made a motion to approve the agenda. No
objections. The agenda was approved.
3. Public Comment
No public comment.
4. Public Hearing Related to Complaint 17-03 Continued
Chair Dennis "Skip" Cook noted that on July 17 [2018],
committee reached a decision in the matter, it was
published, and the decision was adopted. At the request of
the subject of the complaint and in accordance with the
rules of the committee, the House Subcommittee would now
put that decision on record.
Chair Cook announced that with the exception of
Representative Colleen Sullivan Leonard, who provided a
sealed envelope that indicated how she voted on the matter
and how she would vote if she were voting today.
Chair Cook called for a roll call vote on that decision.
Tim Petumenos asked to address the subcommittee. Petumenos
asked if the committee members were aware of motions filed
in July of this year.
Chair Cook responded affirmatively.
Tim Petumenos requested the committee address the motion
regarding ex parte contact, which are expressly prohibited
by rule of the committee, between members of the committee
and the prosecuting attorney. Petumenos stated that he
believed those communications could have the potential of
vitiating the entire July 17 hearing, that was held under
Article 1, Section 7 of the Alaska Constitution.
Tim Petumenos stated that he had attempted to learn the
substance of those communications. Petumenos added that the
prosecuting attorney, Kevin Fitzgerald, had responded that
he [Fitzgerald] was invoking attorney-client privilege
about the communications that had occurred. Petumenos added
that the only proper response to the question would have
been that there were no communications.
Petumenos strongly encouraged the committee to take the
matter under consideration and make sure that you know the
facts regarding any ex parte communications. Petumenos
contends that Representative Eastman has a right to know
the substance of the communications.
Chair Cook stated that the committee was taking the motions
in order. The committee would take a vote, which would take
care of one of the motions [to take the vote publicly], and
then address the matter of the motion regarding the alleged
communications.
Tim Petumenos asserted that the committee had it out of
order; the hearing may not have been constitutionally
engaged, and members of the committee may not wish to
proceed with a constitutionally defective hearing.
Petumenos added that before voting on the matter, the
committee may wish to caucus with regard to whether or not
there should be actions taken before someone is subjected
to an adverse vote if the matter is problematic. Petumenos
added that if the committee does go into executive session,
he reminded the committee that Administrator Jerry Anderson
is a material witness and should not participate in the
executive session.
Chair Cook explained the executive session was included on
the agenda as a possibility, the committee had not planned
to undertake the motion in executive session. The plan was
to conduct a vote as it would have been conducted in the
public hearing and then take up the other motion.
Tim Petumenos stated that it is Representative Eastman's
request that this matter be handled before the vote is
taken because it is a serious challenge to the fairness of
the proceedings.
Chair Cook replied that he was amenable to adjusting the
order in which the motions were addressed. Cook noted that
there is one person who voted that is not in attendance.
Cook added that the rules require the committee to reflect
the vote on the public record.
Tim Petumenos replied that the vote is not final until this
hearing, so the committee can [consider] any material
information that it has before the vote. Petumenos added
that it would be appropriate to discuss in executive
session any concerns that individual committee members
might have.
Tim Petumenos reminded the committee that Representative
Eastman contends that the committee had recommended
punishment before the hearing took place, an action he
believes is in violation of the process. If there was
serious ex parte communication during the hearing, it is a
constitutional problem.
Chair Cook directed the committee to take up the matter of
ex parte communications. Cook stated that as far as he was
able to determine, there were no substantive ex parte
communications made by staff or the committee to counsel.
Chair Cook asked Tim Petumenos if he examples that suggest
otherwise that the committee would be happy to hear them.
Tim Petumenos said he asked for Mr. Fitzgerald's notes. Mr.
Fitzgerald had replied that the communications he has he
regards as privileged. Petumenos asked how he would be able
to give you examples if he is unable to learn what was
said.
Chair Cook said he would speak to the two communications
that he had with counsel.
Conner Thomas asked what advice had been given to the
committee by the committee's attorney.
Chair Cook said that he understood the attorney to say if
there were no substantive communications, that should be
made a matter of record. Cook added that he does not mind
disclosing the nature of his communications with counsel
during the hearing.
Chair Cook said that he had had two non-substantive
communications with counsel during the hearing.
Chair Cook asked Conner Thomas if he was suggesting that
the committee confer with counsel or if he had any
objection to Cook stating on the record the content of the
communications he had had with counsel.
Conner Thomas replied no, had no objection.
Chair Cook outlined his communications with counsel. Cook
stated that he had communicated with counsel that the
committee was ready to proceed when there was a question
about whether the hearing would go forward. Cook said he
had also had a communication with counsel just before the
attorneys left the room to confer. Cook said, at the
committee's request, he asked counsel whether a particular
document would be put into evidence and asked counsel to
address the question during the conversation between the
attorneys.
Chair Cook asked Jerry to account for his communications
with counsel.
Jerry Anderson stated that he had one communication with
committee members after he was contacted to make comment on
an administrative order by a member of the media. This
administrative order was entered by the hearing officer and
subsequently released to the media by Representative
Eastman. Because it was potentially dispositive, it was
important that the committee be made aware of the situation
in case they were contacted by the media.
Jerry Anderson then proceeded to read the text of the email
he sent to committee members on June 20, 2018.
Tim Petumenos asked what contact Jerry Anderson had had
with Kevin Fitzgerald.
Chair Cook asked Jerry Anderson if had had any substantive
communications with Mr. Fitzgerald.
Jerry Anderson replied that he had had discussed with Mr.
Fitzgerald about the unavailability of a witness and how
they would address that issue. Jerry Anderson stated he did
not view that communication as substantive.
Chair Cook clarified that he wanted to know if Jerry
Anderson had had substantive communication with Mr.
Fitzgerald.
Jerry Anderson explained there had been procedural
communications but no substantive communications with
counsel.
Chair Cook noted that none of the communications were
substantive. Cook asked the committee if they were ready to
vote on the matter.
Jerry Anderson noted for the record that the committee
would vote on whether to adopt the July 17, 2018 decision.
Jerry Anderson conducted a roll call vote.
Roll Call Vote:
Conner Thomas Y
Joyce Anderson Y
Deb Fancher N
Lee Holmes Y
Rep Chris Tuck Y
Skip Cook Y
Rep Colleen Sullivan Leonard Y (as read by Chair Cook)
Jerry Anderson stated that the committee had adopted the
decision 6-1.
Chair Cook announced that the decision was confirmed.
Chair Cook entertained a motion to adjourn the House
Subcommittee meeting.
Conner Thomas moved to adjourn the subcommittee meeting.
No objection.
Chair Cook adjourned the meeting.
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