Legislature(2023 - 2024)
02/16/2024 10:30 AM House ETH
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| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SELECT COMMITTEE ON LEGISLATIVE ETHICS
FEBRUARY 16, 2024
10:30 AM
HOUSE SUBCOMMITTEE MEETING
11:22:35 AM
1. CALL THE MEETING TO ORDER
Chair Deb Fancher called together the House Subcommittee
meeting at 11:22 AM on February 16, 2024. She directed
Tamara Maddox to conduct roll call.
Roll Call
Representative Sara Hannan
Skip Cook
Conner Thomas
Chair Deb Fancher
Representative DeLena Johnson
Quorum present.
Others
Tamara Maddox
Jacqui Yeagle
2. APPROVAL OF AGENDA
Chair Deb Fancher entertained a motion to approve the
agenda.
Motion made by Representative DeLena Johnson. There was no
discussion and no objections. The agenda was approved.
11:23:21 AM
3. PUBLIC COMMENT
Chair Deb Fancher opened the floor to public comment with a
reminder that public comment was limited to three minutes.
Tom Hoffer, attorney for Representative David Eastman noted
one committee member appeared to be attending the meeting
telephonically. Committee Rule 6 [Rules of Procedure
Section 6 Teleconference] requires that members of the
committee participate in person and Representative David
Eastman did not waive the in-person requirement.
Chair Deb Fancher verified one committee member was
traveling and was not in attendance telephonically, and
there was a quorum in the room.
Tom Hoffer asked if he would be limited to the three-minute
limit on public comment.
Chair Deb Fancher replied yes, during public comment he
would be limited to three minutes, but would have a second
opportunity later in the meeting to address the committee.
Tom Hoffer stated he did not want to be limited to the
three-minute comment allowed in the public comment period.
He delayed commenting until he would have more time.
Patrick Martin of Wasilla said he was troubled by
complaints [H 22-01 and H 22-02] initiated by
Representative McCabe in 2022. He [Mr. Martin] reported he
visited the capitol on April 14 and 15, [2022] to
distribute petitions. On April 20, [2022] Representative
McCabe made a floor speech denigrating him, Alaska Right to
Life, and thousands of members, going so far as to call all
of them corrupt and perverse. On April 25, [2022], The
sequence of events in the text of the complaint shows the
retaliatory nature of the complaint and what appears to be
the weaponization of the Ethics Committee and the laws the
committee should be enforcing. The complaint states it is
unknown if he [Mr. Martin] was allowed [by the
representatives] to use computers or phones. Mr. McCabe was
not in a Capitol either of the two days that he [Mr.
Martin] visited, which in his opinion throws that complaint
into even greater question.
Patrick Martin said the complaint process took 18 months
and the investigation was fumbled over and over to the
point that Senator Wilson actually called for the
termination of Representatives Eastman and Kurka's staff.
Mr. Eastman and Mr. Kurka, of course, had to spend a lot of
time and personal money on the completely frivolous and
retaliatory complaints, with no recourse for Mr. Eastman or
Mr. Kurka. There's no mechanism for them to have their
legal expenses covered. It seems the Ethics Committee is
absolutely committed to ensure that Mr. Eastman and Mr.
Kurka bear the full financial weight of Mr. McCabe's
completely fraudulent and frivolous complaint. He [Mr.
Martin] thinks it is just an absolute abuse of justice. The
Ethics Committee needs be more transparent to the public
and show exactly what is happening to legislators like Mr.
Eastman and Mr. Kurka with complaints like what Mr. McCabe
brought against them. It's absolutely shameful.
Representative DeLena Johnson asked how Patrick Martin
knows the specific names he used in his statement.
Patrick Martin responded only two offices treated him
poorly when he visited the capitol. Senator Shelley Hughes'
office called Capitol Security on him twice and alleged
that he was carrying a firearm in the capitol, a completely
frivolous accusation. He [Patrick Martin] named Senator
Hughes and Representative McCabe on social media as the
likely accusers. Senator Hughes was quick to say, no, it
wasn't me and it wasn't my office. Then, during the
investigative interview, he mentioned multiple times his
stance that Mr. McCabe was the complainant and the
investigator confirmed that was the case. The investigator
reminded him that under ethics rules he's bound to maintain
the confidentiality of Mr. McCabe, and he asserted the
committee has no authority over him.
20:28
Representative Sara Hannan asked if public comment was
limited to remarks about current agenda items.
Chair Deb Fancher replied no, during the public comment
period, the public may speak to the committee about topics
not related to the current agenda items.
Vince Guerra expressed support for Representative David
Eastman and commented that Representative Eastman helps his
constituents get help from government. His constituents
appreciate it and they are not happy about the use of
lawfare against him. The committee has stripped him of his
committee chairmanship or committee seats and stripped him
of his staff. Now he has to do twice as much work with
hardly any help. The committee is trying to prevent him
from defending himself by putting arbitrary amounts on the
amount of money he can raise [for legal fees]. Mr. Guerra
is disgusted with the whole process and he hopes the
committee will let Representative David Eastman get back to
work representing us in Wasilla. Mr. Guerra reported he has
had many different legislative representatives in the
different areas in which he has lived, and Representative
David Eastman is one of the best representative he has ever
had. Representative David Eastman is one of the good guys.
Representative McCabe stated he was representing himself as
a member of the public, and not necessarily as any part of
this proceeding. Representative McCabe read from Section
24.60.170 [Proceedings before the committee; limitations.]
Section (c):
When the committee receives a complaint under (a) of
this section, it may assign the complaint to a staff
person. The staff person shall conduct a preliminary
examination of the complaint and advise the committee
whether the allegations of the complaint if true,
constitute a violation of this chapter and whether
there is credible information to indicate that a
further investigation and proceeding is warranted.
Representative McCabe noted that further down in the
paragraph, it says:
If the committee determines that the allegations, if
proven, would not give rise to a violation, that the
complaint is frivolous on its face, that there is
insufficient credible information that can be
uncovered to warrant further investigation by the
committee, or that the committee's lack of
jurisdiction is apparent on the face of the complaint,
the committee shall dismiss the complaint and shall
notify the complainant.
Representative McCabe read from section (d), which says
If the committee determines that some or all of the
allegations of a complaint, if proven, constitute a
violation of this chapter, or if the committee has
initiated the complaint, the committee shall
investigate the complaint on a confidential basis.
Representative McCabe continued: [Before] beginning an
investigation of a complaint, the committee shall adopt a
resolution defining the scope of the investigation. A copy
of this resolution shall be provided to the complainant and
the subject of the complaint. As part of its investigation,
the committee shall afford the subject of the complaint an
opportunity to explain the conduct alleged to be a
violation of this chapter.
Representative McCabe read from section (f), which says
If the committee determines after investigation that
there is not probable cause to believe that the
subject of the complaint has violated this chapter,
the committee shall dismiss the complaint. The
committee may also dismiss portions of the complaint
if it finds no probable cause to believe that the
subject of the complaint has violated this chapter as
alleged in those portions. The committee shall issue a
decision explaining its dismissal. Committee
deliberations, and vote on the dismissal, order, and
decision are not open to the public or to the subject
of the complaint. A copy of the dismissal order and
decision shall be sent to the complainant and to the
subject of the complaint.
11:38:40 AM
4. COMMENT BY SUBJECT OF COMPLAINTS
Chair Deb Fancher announced the committee would deliberate
on Complaints H 23-01 and H 23-02. The subject of both
complaints is Representative David Eastman. H 23-01 alleges
the representative violated AS 24.60.030 by using
government assets, specifically his legislative social
media page, to solicit money for the private benefit of
another. H 23-02 alleges the representative violated AS
24.60.031 by soliciting campaign contributions during
session and AS 24.60.080 by receiving gifts of $250 or
more. Representative Eastman waived confidentiality in both
complaints. The committee affords the subject of the
complaint an opportunity to explain the conduct alleged to
be a violation of this chapter. Chair Deb Fancher asked
Representative Eastman if wanted to speak to the
complaints.
Representative David Eastman replied he would let his
attorney speak.
Tom Hoffer said AS 24.60.170 sets out a procedure governing
how complaints are to be addressed and whether
investigation is warranted. He asserted the procedures had
not been followed. There is no allegation in the complaint
of a violation of AS 24.60.080. That is problematic for a
number of reasons, most importantly due process concerns,
and of which the ultimate effect is significant prejudice
not only to Representative Eastman but to Alaskans in
general. As noted, Representative Eastman waived
confidentiality in these proceedings. Section [AS
24.60.170(l)] talks about confidentiality and reads in
part:
Proceedings of the committee relating to complaints
before are confidential until the committee determines
that there is probable cause to believe a violation of
this chapter has occurred.
Tom Hoffer said the section includes a provision the
confidentiality provisions of this subsection may be waived
by the subject of the complaint. Representative Eastman has
expressly waived the confidentiality protections. There are
due process concerns here that flow both from AS 24.60.170,
as well as the United States and Alaska constitutions. One
should expect investigations under AS 24.60.170 should
follow the framework set forth by statute, the statute that
governs the committee's work. AS 24.60.170(b) affords the
subject of a complaint, in this case Representative
Eastman, to ask the complainant to testify at any stage of
the proceeding as to the complainant's belief that the
subject of the complaint has violated this chapter.
Tom Hoffer contended that the committee should know through
correspondence, that Representative Eastman invoked the
right of confrontation. It's not only a right afforded to
Representative Eastman by statute; it is much more
fundamental than that. It goes to the heart of American
jurisprudence. By law the person who made these two
complaints must come forward and testify. And that is what
Representative Eastman has asked. He has asserted his
rights under the governing statutes, and he is asking for
that to happen today in a public setting. This is
incredibly important, not only so that the committee and
Representative Eastman can gauge the demeanor and the
character of the complainant, which is vital any time
you're taking someone's testimony, and it can't be
adequately done outside of an in-person type setting.
More importantly, Tom Hoffer said, it allows the public to
gauge the allegations that are made. Anyone can make
allegations. Whether it be a formal court proceeding, a
legislative proceeding such as this, an administrative
proceeding, or quasi-judicial proceedings, they are all
founded on the ability to have public input and in a public
[setting]. Why is confrontation so important? It is the
rule of law, and it is important to a free society to
adhere to the principles that guide us, and that includes
AS 24.60.170, as well as the Alaska and U.S. constitutions.
It's even more important when you have situations where
someone hides behind procedures instead of coming out to
light. That allows someone to have significant power, and
that power is ripe for abuse unless it is made public.
Tom Hoffer added: The whole idea behind public proceedings
is to avoid things being done in secret. Those were fears
of our forefathers and the fears today of many people.
Government has historically been cautioned to be done in
the public eye. He asserted the subject of a complaint
should know what they are accused of doing; especially in
this case because the complaints at issue do not reference
the allegations the committee added as of three weeks ago.
There are procedures in AS 24.60.170 allowing the committee
to initiate investigations and complaints, but
[undecipherable[ has not been made clear to Representative
David Eastman or himself [Hoffer]. That deprives
Representative Eastman of due process, which at a minimum,
requires notice and opportunity to be heard. That notice
should include [a description] of what you are being
accused.
Tom Hoffer said the committee did not disclose the purpose
of today's meeting until Wednesday, which was problematic
for preparation and a meaningful opportunity to be heard.
The waiver of confidentiality provisions and due process
concerns really work hand in hand. The waiver of
confidentiality should have facilitated provision of
information. At some point, the decision is made,
presumably, information is considered, documents, reports
of some sort, testimony perhaps. All of those things, when
confidentiality is waived, should have been provided to
Representative Eastman, yet it's not taken place. The
waiver of confidentiality should have facilitated the
provision of important information that Representative
Eastman could use to allow him to evaluate the allegations
and prepare to respond appropriately. A subject needs to
know what it is they are being [unintelligible].
Through a letter Tom Hoffer wrote to the committee about
two weeks ago, Representative Eastman asked about 10
questions, including the specific allegations related to
the alleged violation of a social media guideline; the
specific provisions of the guideline that he's alleged to
have violated; a complaint setting forth a violation that
is signed under oath and in writing, which is required by
AS 24.60.170(b); any resolutions authorizing the committee
to investigate an alleged violation of a social media
guideline; the name of the complainant who made the
allegation that Representative Eastman violated the social
media guidelines; the specific allegations related to his
alleged violation of AS 24.60.080; a complaint signed in
writing that he violated that provision; the name of the
complainant who made the allegation that he violated AS
24.60.080, and all other information or documents related
to such allegations. And yet nothing has been provided as
to those alleged allegations in violations that do not
appear in a complaint. In sum, that equates to a
deprivation of Representative Eastman's due process rights.
It not only prejudices him, but it also prejudices all
Alaskans.
11:51
AS 24.60.170 is designed to facilitate due process and that
includes the right to have the complainant provide
testimony. It's codified and should be allowed. The
practical consideration here in -- in closing, is that if
Representative Eastman violated provision of law, then he
needs to know what he's violated so he can consider his
response. Essentially, what is he accused of doing? The
request today is that the committee put that on record so
he can be informed about how to proceed. Will the committee
tell Representative Eastman what he's alleged to have done
and what law did he break? How did he break it? Those
should have been provided as part of a complaint, but they
were not. It's very difficult to expect Representative
Eastman to respond and afford him the due process
considerations that are codified in AS 24.60.170 as well as
those given to him by the constitutions of Alaska and
United States. And finally, is the committee going to
require the complainant to appear in a public setting and
provide testimony?
Representative Sara Hannan asked for clarification of the
additional complaint/s referred to in Tom Hoffers comment.
Chair Deb Fancher directed Tamara Maddox to respond to
Representative Sara Hannans question.
Tamara Maddox replied there is no additional complaint. She
said she believes Tom Hoffer is referring to an addition to
the scope of investigation. Representative David Eastman
was provided that information in June of last year. There
is no additional complaint and there are no additional
allegations.
Tamara Maddox added the recent letters to which Tom Hoffer
referred is the letter sent on January 22, 2024, informing
Tom Hoffer about this meeting and welcoming Representative
David Eastman to come and comment on the record as he had
requested multiple times.
Conner Thomas asked Tom Hoffer for confirmation that he
[Hoffer] understood the committee was still in the
investigation stage in the process as outlined in statute
[AS 24.60.170]. Conner Thomas also confirmed with Tom
Hoffer that he [Hoffer] was aware of a provision in that
section of statute that deals with a formal charge. Conner
Thomas then confirmed with Tom Hoffer that he [Hoffer] was
aware the provision includes a number of due process
procedures.
Tom Hoffer agreed there was some due process procedures
under the statute, but countered that due process applies
throughout the investigative stage.
Conner Thomas asked Tom Hoffer if Representative David
Eastman had received a copy of the complaints. Tom Hoffer
confirmed that Representative David Eastman had received
copies of the complaints.
Conner Thomas asked Tom Hoffer if the complaints did not
adequately explain the allegations. Tom Hoffer replied the
complaints referenced two allegations, but the committee
had added a third allegation that was not part of the
[original] complaints. The allegation added by the
committee was not adequately explained.
Conner Thomas confirmed with Tom Hoffer that he had
received a copy of the scope of investigation, and he
[Hopper] understood it.
Conner Thomas asked Tom Hoffer if Representative David
Eastman had refused to respond to a subpoena. Tom Hoffer
replied that the committee had sent an unlawful subpoena.
Conner Thomas asked Tom Hoffer to confirm that
Representative David Eastman had refused to sit for a
deposition based on a subpoena. Tom Hoffer replied he would
not agree with that statement because the subpoena was
unlawful.
Conner Thomas asked if Representative David Eastman had
refused to sit for a deposition even without a subpoena.
Tom Hoffer replied that was not true. Conner Thomas asked
Tom Hoffer if Representative David Eastman would sit for a
deposition. Tom Hoffer replied depositions are not lawful
and they are not authorized under statute. Representative
David Eastman is prepared to make a statement as is
afforded to him by statute, but the committee has not
offered that. Conner Thomas asked if Representative David
Eastman was willing to sit for an interview with the
investigator. Tom Hoffer replied he would not speak for
Representative David Eastman but he [Hoffer] imagines so.
Conner Thomas asked Tom Hoffer why Representative David
Eastman has not [spoken with the investigator]. Tom Hoffer
replied that his [Hoffer] understanding is the investigator
never followed up with Representative David Eastman.
Chair Deb Fancher asked Representative David Eastman if he
would like to make a statement.
Tom Hoffer interjected the complainant should speak first
and make the allegations.
Chair Deb Fancher replied that the complainants identity
would remain confidential until executive session; the
complainant was willing at that time to make a statement.
Tom Hoffer asked what provision of law provides for that
[plan]. Representative David Eastman waived
confidentiality; the proceedings should be public. Tom
Hoffer asked why the complainant is not required to
participate in a public hearing.
Chair Deb Fancher replied for their protection the
committee keeps the identity of complainants confidential.
50:56
Tom Hoffer replied he understood but he thinks that
[policy] needs to be looked at. Hoffer asked if executive
sessions are recorded and are transcriptions available for
Representative David Eastman to review.
Chair Deb Fancher replied that the deliberations would not
be recorded but that special provisions had been made to
record the complainants statement in executive session.
Tom Hoffer asserted he believed that action to be outside
Alaska law. Representative David Eastman's position is that
the complainant should be required to provide public
testimony to support of the complaint.
Chair Deb Fancher asked where in statute the identity of
the complainant needs to be public.
Tom Hoffer responded that AS 24.60.170 states that
proceedings of the committee related to complaints are
confidential unless the confidentiality provisions of the
subsection are waived by the subject of the complaint.
Tamara Maddox replied that AS 24.60.170 also says
proceedings of the committee relating to complaints before
it are confidential until the committee determines that
there is a probable cause to believe that a violation of
this chapter has occurred. And as member Thomas has already
advised, the committee is on the investigation portion of
this complaint. Representative David Eastman has insisted
he make his statements in public.
Tom Hoffer responded that later in AS 24.60.170(l) it says
the confidentiality provisions of this entire subsection
may be waived by the subject of the complaint - to include
the sentence referenced by Ms. Maddox. It's creative
reading, it's committee's practice, but it's unlawful.
Chair Deb Fancher asked Representative David Eastman if he
would like to make a statement.
Representative David Eastmans response was unintelligible.
Chair Deb Fancher asked Tom Hoffer if he would give
Representative David Eastman permission to comment.
Tom Hoffer replied yes, but the committee still needs to
decide if it will provide him the information about what he
is accused of and whether the committee will require the
complainant to testify in an open setting as the law
requires.
Chair Deb Fancher said to her knowledge the complaint has
not changed, and she begged Tom Hoffer to bring to her
attention what changed.
Tom Hoffer replied that neither H 23-01 nor H 23-02
contains a violation of AS 24.60.080. Representative David
Eastman needs to know of what he is accused.
56:44
Tamara Maddox replied that the scope of investigation in H
23-02 included AS 24.60.080 because Representative David
Eastman had filed related disclosures demonstrating a
violation of AS 24.60.080. Representative David Eastman was
informed at that time that he was in violation of that
section, he was provided copies of the disclosures, and he
was made aware the committee would be asking about those
disclosures. Tom Hoffer was provided a copy of the
disclosures.
Tom Hoffer submitted the committee exists to investigate
complaints, but the committee cannot enact scopes and
resolutions that go beyond the complaints and investigate
further. There has never been a complaint against
Representative David Eastman that alleges violation of AS
24.60.080.
Chair Deb Fancher repeated that the committee was in the
initial stages of the complaint, Representative David
Eastman has been invited to speak numerous times, the
committee hired an investigator who apparently could not
make contact. The conversation keeps covering ground using
different words, which is pointless. She again asked
Representative David Eastman if he wanted to speak to the
committee.
1:00
Representative David Eastman began by saying that AS
24.60.170(b) is where in the Ethics Act it addresses an
accuser coming forward and testifying publicly. That
section spells out for anyone considering filing an ethics
complaint, that they would be potentially required to come
forward and testify publicly. It says,
Upon receiving a complaint, the committee shall advise
the complainant that the committee or the subject of
the complaint may ask the complainant to testify at
any stage of the proceeding as to the complainant's
belief that the subject of the complaint has violated
this chapter.
Representative David Eastman said he is asking the person
accusing me to come forward and testify specifically and
clearly about the accusation. That should happen before he,
as the defendant in this situation, makes any statements or
responds to the accusation. Then he will respond. It's not
fair to have me make my defense and then [the committee] go
into executive session and privately behind doors, for me
and my constituents, to hear the accusations from the
accuser.
Conner Thomas asked if Representative David Eastman was
saying he did not know of what he is accused.
Representative David Eastman said he asked for very
specific information about the allegations and he has
received very little response to those specific questions.
Conner Thomas asked if Representative David Eastman had
received the complaints.
Representative David Eastman said he received the
complaints from last year and he was prepared to talk with
the investigator about those complaints.
Conner Thomas noted he had not spoken to the investigator.
Representative David Eastman said when he asked what he was
to be interviewed about, the investigator said she would be
giving me a list of questions so my attorney could review
them before I went to the interview. Representative David
Eastman reported he never received those questions so he
was never invited to schedule the interview.
Conner Thomas asked Representative David Eastman if he was
unwilling to talk to the investigator without a previous
list of questions?
Representative David Eastman said no, that was not it at
all.
Conner Thomas asked if Representative David Eastman was
willing to schedule an interview right now.
Representative David Eastman replied that he would.
Conner Thomas asked if a date could be picked.
Representative David Eastman said he would be glad to talk
with the investigator about the complaints that have been
made against me. He is not prepared to talk to the
investigator about a complaint that's never been made.
Conner Thomas asked Representative David Eastman if he
[Eastman] was aware of complaints made against him.
Representative David Eastman replied that he was aware of
two complaints.
Conner Thomas asked when Representative David Eastman was
available for an interview.
Representative David Eastman responded he could be
available as early as the next week.
1:03:46
12:15:23 PM
5. MOTION TO GO INTO EXECUTIVE SESSION into Executive
Session
Chair Deb Fancher entertained a motion to go into EXECUTIVE
SESSION to discuss matters which by law must remain
confidential under AS 24.60.160, Uniform Rule 22(b)
regarding executive sessions, and Rules of Procedure
Section 5: Executive Sessions and discussion of matters,
the immediate knowledge of which would adversely affect the
finances of a governmental unit, and discussion of subjects
that tend to prejudice the reputation and character of a
person.
Chair Deb Fancher added that under the committee's rules of
procedure, section 5, executive session, attendance is
limited to members of the committee with the following
exceptions. The committee can request certain people to be
present in executive session, a witness, a person providing
clarifying information, the subject of the complaint is
included in the exceptions pursuant to the requirements and
stipulations outlined in the [committee rules of
procedure]. She asked that the following people go into
executive session: Tamara Maddox, Jacqui Yeagle Joyce
Anderson, Investigator Monique Rapuzzi, Brent Cole,
Representative Eastman, Mr. Hoffer, Representative
Eastman's attorney, our complainant, and Tom Lucas from
APOC (phonetic).
Conner Thomas so moved. There were no objections.
12:16:43 PM
6. EXECUTIVE SESSION
12:37:53 PM
7. PUBLIC SESSION
Chair Deb Fancher called the house subcommittee meeting
back to order on February 16, 2024, at 2:24 PM.
Conner Thomas moved to dismiss Complaint H 23-01. There
were no objections.
Chair Deb Fancher asked Tamara Maddox if the committee
needed to do a roll call vote.
Tamara Maddox replied it was not.
Joyce Anderson added the decision was by majority vote.
Representative Sara Hannan added without objection.
Chair Deb Fancher repeated [the decision was] approved by
majority vote without objection.
8. OTHER BUSINESS
Chair Deb Fancher entertained other business. Hearing none,
she announced next meeting date is undecided at this time.
9. ADJOURN
Chair Deb Fancher entertained a motion to adjourn the
meeting.
Skip Cook so moved.
Chair Deb Fancher asked if there were objections or other
discussion. There was none. She adjourned the meeting.
2:26:13 PM
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