Legislature(1993 - 1994)
04/15/1993 01:15 PM House ETH
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
REVISED
THE SELECT COMMITTEE ON LEGISLATIVE ETHICS
April 15, 1993
1:15 p.m.
MEMBERS PRESENT
Joseph Donahue
Ed Granger
Margie MacNeille
Shirley McCoy
Edith Vorderstrasse
Senator Jay Kerttula
Senator Drue Pearce
Representative Jerry Mackie
Representative Brian Porter
ALSO PRESENT
Terry Cramer, Legislative Legal Counsel
Legal Services Division
Legislative Affairs Agency
Eric Musser, Legislative Assistant
to Representative Brian Porter
Pam Stoops, Director, Administrative Services
Legislative Affairs Agency
CALL TO ORDER
The meeting of the Select Committee on Legislative Ethics
was called to order at 1:15 p.m. by Terry Cramer, Legal
Counsel, Legislative Affairs Agency. Ms. Cramer states she
was present at the request of the members of the committee
to serve as a temporary chair until a temporary chair was
selected from the public members. The roll was taken and
Ms. Cramer stated there was full attendance.
MEMBERS' TERMS
Mr. Granger asked that the committee consider the election
of a permanent chair immediately in light of the other
demands on members of the committee. Ms. MacNeille stated
that the public members' terms needed to be established
first since one person would have a one-year term and the
chair's term was a two-year seat. Ms. Cramer noted that by
statute it was the subcommittee chairs who act as the full
committee chairs, and until the subcommittees met, there
couldn't be a full committee chair under the statute.
Representative Porter suggested that the same person be the
chair from both subcommittees.
The committee drew lots and the following terms were set:
Joseph Donahue and Edith Vorderstrasse, 3 year terms; Ed
Granger and Margie MacNeille, 2 year terms; and Shirley
McCoy, 1 year term.
ELECTION OF THE CHAIR AND VICE CHAIRS
Mr. Granger moved that the Senate subcommittee chair be Mr.
Donahue and asked unanimous consent. There was no objection
and Mr. Donahue was elected as the Senate subcommittee
chair. Ms. Cramer stated that the Senate chairs the
committee in odd years. Mr. Donahue then began to chair the
meeting.
Representative Porter moved and asked unanimous consent that
Mr. Donahue be nominated for the chair of the House
subcommittee. There was no objection and Mr. Donahue was
elected chair of the House subcommittee.
The nominations were opened for the vice chair of the Senate
subcommittee. Senator Kerttula moved and asked unanimous
consent that Mr. Granger be nominated. There was no
objection and Mr. Granger was elected vice chair of the
Senate subcommittee.
Representative Mackie moved that Ms. MacNeille be nominated
as vice chair of the House subcommittee and asked unanimous
consent. There was no objection and Ms. MacNeille was
elected vice chair of the House subcommittee.
ADOPTION OF THE AGENDA
Senator Kerttula asked that the item of administrative
procedures be added to the agenda. It was added as item No.
11.
Mr. Granger asked that an item be added to the agenda for
public comment. This was added as item No. 12.
Representative Porter indicated that he would be absent from
the meeting for a period of time and asked that the item of
staffing not be considered until he was present. Item 7 was
moved to some time later in the meeting, at the chair's
discretion, when all were present.
Ms. MacNeille moved and asked unanimous consent that the
agenda be adopted as modified. There was no objection and
the agenda as modified was adopted.
APPROVAL OF MINUTES OF MEETING OF MARCH 25, 1993
Ms. MacNeille moved the approval of the minutes. There was
no objection and the motion was approved.
COMMITTEE BUDGET
Eric Musser, Legislative Aide to Representative Brian
Porter, explained the two draft budgets. The two versions
of the budgets were based on different levels of staff
services and office locations, and the number of meetings
and their locations. Draft 1 was based on all meetings
being in Juneau and staff being in Juneau. Draft 2 was
based on an Anchorage location. Senator Kerttula noted that
during session it would be necessary to hold the meetings in
Juneau.
Representative Mackie suggested that the budget be reviewed
component by component rather than adopting one or the
other.
The first component to be considered was personal services.
After some discussion, Representative Mackie moved that the
committee hire a permanent part-time employee at a range 19
to be located in Anchorage during the interim and in Juneau
during the session. He later amended his motion to move
that the committee budget for a range 19 permanent part-time
employee and asked unanimous consent. There was no
objection and the motion was adopted.
The next budget item to be considered was office location
and meeting locations. Senator Kerttula moved that the
office be established in Anchorage, and to the maximum
extent possible, the meetings of the committee be held in
Juneau during the legislative session and asked for
unanimous consent. There was objection. Ms. McCoy was
concerned that the best qualified person may not be in
Anchorage. The motion passed with the 6-2 vote as follows:
Mackie, Porter, Pearce, MacNeille, Donahue and Granger
voting in favor and McCoy and Vorderstrasse voting against.
Senator Pearce asked where the meetings had been held during
the interim in the past. Ms. MacNeille indicated that if
there were not confidential matters the meetings were, for
the most part, held by teleconference. Senator Pearce then
moved that for planning purposes the committee plan to hold
the interim meetings in Anchorage. There was no objection
and the motion was adopted.
Representative Mackie moved that the committee budget for 8
meetings, 4 meetings in Juneau at a cost of $39,534.08 and 4
meetings in Anchorage at a cost of $17,634.08, for a total
of $57,168.16 for committee travel. There was no objection
and the motion was adopted.
Senators Kerttula and Pearce returned to the Senate Floor.
The next budget item to be addressed was staff travel. Ms.
McCoy suggested that since some of the meetings were to be
conducted by teleconference there may be sufficient money
already budgeted for the staff travel. Representative
Mackie moved that the committee budget $1,776 for staff
travel and $880 for per diem for 4 trips to Juneau for a
total of $2,656. There was no objection and the motion was
adopted.
Eric Musser asked that the committee allow LAA to double
check the accuracy of the numbers since the per diem rates
change depending on the time of year and length of travel.
Representative Mackie indicated that was his reason for
including the number of days or number of trips, then the
dollar amount could be adjusted based on the committee's
intent.
Representative Mackie noted that in the motion on public
members' travel, public members' per diem had not been
addressed. Representative Mackie moved that the committee
approve per diem for non-Juneau members for 4 meetings, 2
days per meeting, which was 8 days of per diem for 4 members
at a cost of $14,096. There was no objection and the motion
passed.
Representative Mackie moved that the committee approve per
diem for the 3 non-Anchorage members for 4 meetings, 2 days
per meeting, for a cost of $10,572. There was no objection
and the motion was approved.
The chair noted that in order for the committee to take
action it was necessary to have two legislative members
present and there were not two present for the previous
motions regarding the travel and per diem budget items. Pam
Stoops, Director of Administrative Services for Legislative
Affairs Agency, suggested that a total figure for personal
services and travel and per diem would be all that was
necessary for budgeting purposes. Ms. MacNeille suggested
that the committee take a recess and have LAA prepare a
budget along the lines discussed. Representative Mackie
summarized the committee's wishes for travel and per diem
for 4 meetings in Juneau and 4 meetings in Anchorage and
intent to hire one range 19 permanent part-time person to be
located in Anchorage on a year-round basis.
The committee then took a recess.
When the meeting reconvened Representative Porter had
rejoined the committee.
The chair noted that the previous motions for the travel and
per diem were to be disregarded. Representative Mackie
moved that the personal services budget line item be $48,000
for one permanent part-time range 19 employee. This would
be for a person to be employed for 3/4 time. Representative
Porter indicated that he had a preference for not hiring
staff at all. The motion was approved with a qualified non-
objection by Representative Porter.
Representative Mackie moved that the committee approve a
figure of $33,000 for travel and per diem. This was for 4
meetings in Juneau during the session and 4 meetings in
Anchorage for the committee members. There were no
objections and the motion passed with unanimous consent.
Representative Mackie then moved that the committee budget
for a 500 square foot office to be located in Anchorage at a
cost of $10,000. Representative Porter noted that Appendix
A, page 10, of the Standards of Conduct Handbook, indicated
that Legislative Council was responsible for providing
office space, equipment and additional staff support and
wanted to support the idea of using already existing space
and staff. Mr. Granger concurred. Representative Porter
indicated that he would support putting the budget together
with the understanding that it did not mean he supported
expending the funds for any of the items within the budget.
The motion passed by a vote of 6 to 1 with Mackie, Porter,
MacNeille, McCoy, Donahue and Vorderstrasse voting for the
motion and Mr. Granger voting against the motion.
Representative Mackie moved that the committee budget $1,000
for supplies. There was no objection and the motion was
approved.
Ms. MacNeille moved that under professional services
contractual funds, the committee budget $60,000 for
legal/investigative services. Mr. Granger inquired about
the $68,000 currently in the committee's budget. Pam Stoops
indicated that money was for this year's expenses; however,
what was left, after whatever cost the committee incurs
through June 30 of this year, would be carried forward into
the next fiscal year and would be available to the
committee. Mr. Granger indicated he hoped that the
committee would consider contracting its legal services with
the Department of Law. There was no objection and the
motion was approved.
Ms. McCoy moved that the committee approve $5,000 for phone
and postage. There was no objection and the motion was
adopted.
Representative Mackie summarized the budget as follows:
personal services, $48,000; travel and per diem, $33,000;
office supplies, $1,000; and $5,000 for phones and postage;
contractual, $10,000 for office space and $60,000 for legal
and investigative; for a total budget of $157,000.
Pam Stoops indicated that there was an encumbrance called
the House Ethics Equipment Encumbrance, in the amount of
$9,936, which will lapse on July 3 unless the committee
directs her to request this encumbrance to be re-
established. This money can only be spent on equipment.
She also noted that there was no excess furniture in
Anchorage; however, there may be some equipment available in
Juneau. Representative Mackie moved that the committee
request Legislative Council to get the equipment for the
committee's office and not budget for it. There was no
objection and the motion was adopted.
REVIEW AND/OR APPROVAL OF ADVISORY OPINIONS
Ms. MacNeille asked to be excused during the discussion of
the advisory opinion concerning her.
The chair asked for clarification of whether advisory
opinions should be considered in public. Terry Cramer,
Legal Counsel for Legislative Affairs Legal Services, said
that in the usual circumstance, the committee's discussion
of advisory opinions would be a confidential discussion. In
the three advisory opinions before the committee at this
meeting, the requesters had asked that the discussion be
public. She also noted that Ms. MacNeille was disqualified
from participation in the discussion of the advisory opinion
concerning her.
Representative Mackie asked if Ms. Cramer would review the
requests and advise the committee on the opinions. At this
time, Ms. MacNeille excused herself from the meeting for the
discussion of the opinion concerning her.
ADVISORY OPINION 93-1
Ms. Cramer stated that the first advisory opinion concern a
possible conflict for Ms. MacNeille. There were two draft
opinions. In both cases the statement of the facts were the
same, but because there were differing decisions that had
been made in the past on the question of state contracts and
leases, she had prepared two different responses. She noted
that it is the facts that committee gets in a request that
are acted on and there were three different questions asked
by this request.
Ms. Cramer summarized the factual part of the request
submitted by Ms. MacNeille. The question arises because Ms.
MacNeille's husband is a lawyer in a law firm that does work
for the state. There are three kinds of circumstances under
which the law firm does work. The first is for contracts
with the University of Alaska, entered into under the
University's separate procurement code, which are
competitive bids. In the second set of contracts, on two
occasions, her husband has been retained under a process
that did not have a competitive bid. In the third set, her
husband's law firm has a contract with a second law firm,
and the second law firm has a contract with the state to do
legal work litigating with certain oil producers and the
contract entered into by the second law firm was not done on
a competitive bid basis. Ms. MacNeille's husband's law firm
is not a party in any way to that contract.
The part of the ethics code that applies is the state
contracts and leases, which states that a legislator or
legislative employee may not be a party to a state contract
unless it meets one of three criteria. Ms. MacNeille's
husband is considered an immediate family member and is
covered under this section.
Ms. Cramer stated that past advisory opinions issued in
previous years are useful to this committee to the extent
that the provisions of the law have carried through.
Ms. Cramer discussed the three kinds of contracts covered:
(1) contract let through competitive sealed bidding; (2) the
total annual amount of the contract or lease is $1,000; or
(3) is a standardized contract or lease that is developed
under publicly established guidelines and is generally
available to the public at large, members of a profession,
occupation or group. In the competitive let contracts, Ms.
MacNeille's husband's contracts did not meet the criterion
for competitively sealed bids. It is not the second type
since the amount is over $1,000. In the third type,
standardized contracts, the type of contracts Ms.
MacNeille's husband's law firm entered into would satisfy
the requirements of being a standardized contract developed
under publicly established guidelines generally available to
the public at large, members of a profession, occupation or
group. Version B of the opinion finds that the language
does not extend to this kind of contract, and that the 1984
opinion from the committee which suggests that it did,
overturns the opinion.
Ms. Cramer stated that her reason for two directions on that
question is that in 1991 there was a comment in an opinion
about how to interpret the third kind of exception.
Representative Mackie asked if Version A of the draft
advisory opinion says that it was not a violation of section
3 because of the standardized contract which is available to
members of that occupation, so that wouldn't prohibit her
from serving on the Ethics Committee; and if Version B
states that the contract does not qualify as a standardized
contract and therefore the ethics law would be violated if
her husband had an interest in that kind of contract. Ms.
Cramer indicated that was correct.
Representative Porter asked Ms. Cramer to summarize the
justification for both versions. Ms. Cramer stated that
Version A would allow legislators and legislative employees
to enter into request for proposal style contracts under the
state procurement code or like the state procurement code.
There could be a serious financial drain on family members
of people associated with legislators or legislative
employees and by limiting it to procurement code processes
you are maintaining public control so that the process does
not go awry based on legislative influence.
Ms. Cramer noted that legally the committee did not have to
be consistent, but could base their decisions on the facts
of each situation. Representative Porter expressed his
concern about the ability to be inconsistent. Representative
Mackie stated that he felt it wasn't as much a case of being
inconsistent as evaluating each case individually.
Mr. Donahue asked if the time these contracts were entered
into had a bearing on the situation. Ms. Cramer indicated
the statute said that a member of the legislature or
legislative employee may not have an interest in state
contracts or leases, and that there was no delay in any of
the provisions of the ethics code. The recent change to
this section was to add that it now applies to immediate
family members.
Representative Porter asked if past ethics committees had
adopted a policy of stating that they will look at these
kinds of requests or allegations on an individual basis as
opposed to one policy that should be a blanket policy to
cover every consideration. Ms. Cramer indicated that often
they had been answering a specific inquiry; however, that
policy could be adopted by this committee whether it was
done in the past or not.
Mr. Granger asked if the committee had the letter at the
time of the confirmation hearings. Ms. Cramer stated that
they had not. Ms. McCoy stated that the mail had been held
sealed until there was an ethics committee.
Ms. Cramer stated that the committee could adopt conceptual
amendments and state the general direction of something the
committee wants to see added or deleted. She indicated that
she could circulate the revised draft and have the committee
adopt it on that basis or be held over for another meeting,
although by statute the committee has 30 days from the day
of a request to respond.
Mr. Donahue asked if the three types of contracts were being
treated the same. Ms. Cramer indicated they were not. The
second contract she didn't feel she had enough information
to reach a conclusion. The response to the second and third
types of contracts was the same in both versions of the
draft opinion.
Mr. Granger indicated that he had problems with the January
12th letter. His concern was that the members of this
committee had the highest requirement possible to ensure
there were no conflicts. He also felt that Ms. MacNeille
had a duty to bring this matter before the Judiciary
confirmation hearings and because of those things could not
support Version A. Representative Porter stated that his
recollection was that during the confirmation hearings Ms.
MacNeille did mention the potential conflict.
Representative Porter stated that he had asked for the
committee minutes to confirm whether this information had
been presented at the confirmation hearings. Mr. Granger
stated that there should be no taint of conflict with the
members of the Ethics Committee and he felt there was a
conflict in this case.
The committee took a brief at-ease to obtain the minutes of
the Joint Judiciary confirmation hearings regarding Ms.
MacNeille's testimony at those hearings.
Representative Porter read from the minutes of the Joint
Judiciary hearings on February 4, 1993, which indicated that
Ms. MacNeille did inform the committee that she had filed a
nonconfidential advisory opinion about that contractual
relationship, and she had proceeded to outline the facts of
the situation.
Representative Mackie moved that Version A draft advisory
opinion 93-1 dated April 9, 1993, be approved by the
committee. Ms. McCoy asked that the draft include some of
the reasoning regarding the limited precedent being set.
Representative Mackie accepted that as a friendly amendment.
Mr. Donahue asked if the question regarding the second
contract where there wasn't enough information was still
subject to an advisory opinion. Representative Mackie
stated that his intent was to inform Ms. MacNeille that the
ethics committee did not find a conflict in her sitting on
the committee due to the circumstances involving her
husband.
Mr. Donahue asked that the roll be called on this motion.
Mackie, Porter, McCoy, Donahue and Vorderstrasse voted in
favor; Granger voted against.
Ms. Cramer asked for clarification of the changes, which
were that the committee finds both the first and second type
of contract are permitted because there is relatively little
ability for a person in this situation to use legislative
influence and to narrow the interpretation of this advisory
opinion so that this is not to be used as a precedent for
other cases.
Ms. MacNeille rejoined the committee and was informed that
the committee did not consider her to have a conflict of
interest.
ADVISORY OPINION 93-2
The next advisory opinion concerned an employee of the
ombudsman who sold real estate in her off time. Her
question was that, as a real estate agent who represents the
seller, did she have a close economic association that she
needed to disclose when the person who bought the property
was a legislator. The draft opinion determines that she
does not have to disclose a close economic association
because her economic association was with the seller.
Representative Porter moved acceptance of draft advisory
opinion 93-2. This would mean that the employee did not
have a conflict of interest. There was no objection and the
motion was adopted.
ADVISORY OPINION 93-3
The next advisory opinion concerned a legislator who had won
a prize as a result of a raffle held by Perseverance
Theater. The legislator wondered if she had an obligation
under the ethics law because of this. The draft advisory
opinion did not find that she had any obligation to disclose
under the legislative ethics code.
Mr. Granger asked that the committee approve draft advisory
opinion 93-3. There was no objection and the motion was
adopted.
DRAFT POLICY ON JURISDICTION AND CONFIDENTIALITY
Ms. MacNeille had drafted the policy which says if the
subject of the complaint is a member of the legislature at
the time the complaint is filed, then the complaint is
handled by the house in which the subject serves, even if
the act complained of happened while that person was serving
in the other house; if the subject of the complaint is a
former legislator, then the house in which the person served
at the time of the act is responsible; and if it refers to a
former legislator about acts that happened in both houses,
it is referred to the one in which he most recently served;
if it is an employee, it is referred to the house in which
the person is presently employed, regardless of where the
conduct might have occurred; referral is automatic so that
the complaint goes to the house with responsibility for its
handling.
Representative Porter moved the adoption of the policy as
drafted on shared jurisdiction. There was no objection and
the policy for shared jurisdiction was adopted.
DRAFT POLICY ON HANDLING OF CONFIDENTIAL DOCUMENTS
The next item was the draft policy dealing with the handling
of confidential documents and had been developed in the last
ethics committee. Several members expressed concern about
faxing confidential information and supported the proposed
policy. Ms. McCoy moved that the committee approve the
proposed policy for handling confidential documents. There
were no objections and the motion was adopted.
ROSTER OF MEMBERS
Corrections were made to the roster of members of the
committee.
ADMINISTRATIVE MATTERS
Mr. Granger asked how the committee was going to handle long
distance phone calls. Mr. Donahue expressed concern that
the members were a public body and should not be discussing
the issues except in meetings. Ms. Stoops explained that
the chair could authorize credit cards for all members,
reimbursement of calls to members could be made, or while
traveling reimbursement could be made of calls on the hotel
bills.
Ms. Cramer stated that out of meeting discussions should be
limited to administrative issues. Ms. Cramer indicated that
she was reviewing the handbook and would have a memo ready
in the future. Representative Mackie moved that the
committee adopt the third edition dated January 1993,
prepared by the former Select Committee on Legislative
Ethics as an "interim reference guide" for legislators and
legislative employees with the understanding that a new
guide will be forthcoming. Representative Porter asked for
unanimous consent. There was no objection and the motion
was adopted.
Eric Musser asked that the committee consider two items:
approval of payment of the advertising bill for the RFPs and
noted that in the code of conduct book, page A-7, April 15
is the day that the disclosure of gifts for the prior year
were due to the committee. Ms. McCoy moved that the
committee approve the payment of the bill to the Juneau
Empire for the advertising of the RFP at a cost of $213.14.
Representative Mackie asked that the motion include the
forthcoming bills from the other two newspapers in which the
RFP was advertised. Ms. McCoy noted that the motion was not
necessary as the chairman has authority to approve bills up
to $5,000. Ms. Stoops stated that the chair would have the
authority to approve TRs, travel, etc., up to $5,000.
Senator Kerttula rejoined the committee to inform them that
he and Senator Pearce would not be able to attend the rest
of the meeting.
RFPs FOR LEGAL/INVESTIGATIVE SERVICES
Ms. MacNeille asked that the committee go into executive
session for the purpose of discussing the RFPs for reasons
that may prejudice the persons, businesses or companies
involved.
The committee went into executive session.
When the committee returned from executive session, Mr.
Donahue appointed an ad hoc committee composed of Ms.
MacNeille, Ms. McCoy and Mr. Granger (chair) to review the
RFPs against the proposed criteria, to contact references,
and to report back to the committee. It was suggested that
a personal interview be conducted with the candidates by the
subcommittee. Mr. Donahue asked the subcommitttee to
consider in their evaluation how some of the advisory
opinions could be done in house and thus less would have to
be handled by the outside consultants.
COMMITTEE BUDGET
Mr. Donahue delegated to Representative Porter the
introduction of the committee's budget to the conference
committee.
NEXT MEETING
Mr. Donahue announced that the next meeting of the whole
would be on Thursday at 1 p.m., April 22, followed by a
meeting of the Senate ethics subcommittee. Possible items
for the next agenda included complaints, gifts, disclosure,
and the commendation of Judge Stewart.
The meeting was adjourned at 5:25 p.m.
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