Legislature(1997 - 1998)
02/10/1997 05:03 PM House FSH
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE SPECIAL COMMITTEE ON FISHERIES
February 10, 1997
5:03 p.m.
MEMBERS PRESENT
Representative Alan Austerman, Chairman
Representative Ivan Ivan
Representative Scott Ogan
Representative Mark Hodgins
MEMBERS ABSENT
Representative Gene Kubina
COMMITTEE CALENDAR
*HOUSE BILL NO. 27
"An Act relating to participation in matters before the Board of
Fisheries by members of the board; and providing for an effective
date."
- HEARD AND HELD
HOUSE BILL NO. 73
"An Act extending the termination dates of the salmon marketing
programs of the Alaska Seafood Marketing Institute and the salmon
marketing assessment; and providing for an effective date."
- BILL POSTPONED
(* First public hearing)
PREVIOUS ACTION
BILL: HB 27
SHORT TITLE: BOARD OF FISH VOTING ETHICS
SPONSOR(S): REPRESENTATIVE(S) AUSTERMAN
JRN-DATE JRN-PG ACTION
01/13/97 34 (H) PREFILE RELEASED 1/3/97
01/13/97 34 (H) READ THE FIRST TIME - REFERRAL(S)
01/13/97 34 (H) FSH, RESOURCES
02/10/97 (H) FSH AT 5:00 PM CAPITOL 124
BILL: HB 73
SHORT TITLE: SALMON MARKETING ASSESSMENT & ASMI
SPONSOR(S): REPRESENTATIVE(S) HUDSON,Grussendorf,Elton
JRN-DATE JRN-PG ACTION
01/15/97 72 (H) READ THE FIRST TIME - REFERRAL(S)
01/15/97 72 (H) FSH, FINANCE
01/16/97 92 (H) L&C REFERRAL ADDED
01/21/97 113 (H) COSPONSOR(S): ELTON
02/10/97 (H) FSH AT 5:00 PM CAPITOL 124
WITNESS REGISTER
STEVEN DAUGHERTY, Assistant Attorney General
Natural Resources Section
Civil Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811
Telephone: (907) 465-3600
POSITION STATEMENT: Testified on HB 27
NEIL SLOTNICK, Assistant Attorney General
Commercial Section
Civil Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811
Telephone: (907) 465-3600
POSITION STATEMENT: Testified on HB 27
NICK SZABO, former member and chairman
Board of Fisheries
P.O. Box 1633
Kodiak, Alaska 99615
Telephone: (907) 486-3853
POSITION STATEMENT: Testified on HB 27
LARRY ENGEL, Chairman
Board of Fisheries
P.O. Box 197
Palmer, Anchorage 99645
Telephone: (907) 745-4132
POSITION STATEMENT: Testified in HB 27
BRUCE SCHACTLER
P.O. Box 2254
Kodiak, Alaska 99615
Telephone: (907) 486-4686
POSITION STATEMENT: Testified on HB 27
DUNCAN FIELDS
P.O.Box 25
Kodiak, Alaska 99615
Telephone: (907) 486-6383
POSITION STATEMENT: Testified on HB 27
ACTION NARRATIVE
TAPE 97-2, SIDE A
Number 001
CHAIRMAN ALAN AUSTERMAN called the House Special Committee on
Fisheries meeting to order at 5:03 p.m. Members present at the
call to order were Representatives Austerman, Ivan, Ogan and
Hodgins. Representative Kubina was absent.
HB 73 - SALMON MARKETING ASSESSMENT & ASMI
Number 023
CHAIRMAN AUSTERMAN stated that the sponsor of HB 73, "An Act
extending the termination dates of the salmon marketing programs of
the Alaska Seafood Marketing Institute and the salmon marketing
assessment; and providing for an effective date", has requested it
not be heard at this meeting.
HB 27 - BOARD OF FISH VOTING ETHICS
Number 075
CHAIRMAN AUSTERMAN stated the committee would hear HB 27, "An Act
relating to participation in matters before the Board of Fisheries
by members of the board; and providing for an effective date."
He explained HB 27 to be the liberalizing of the conflict of
interest for the Board of Fisheries. He stated that presently the
Attorney General, makes a ruling as to whether there is a
substantial conflict interest and then the chairman of the Board of
Fisheries makes a ruling as to whether that person should be
conflicted out.
Number 128
CHAIRMAN AUSTERMAN stated the way HB 27 is written is that a board
member has to declare a conflict of interest to the rest of the
board and then a majority vote from the board determines whether
that person has a conflict of interest and cannot participate. He
stated that when the bill was introduced last year, it stated that
the person had to declare a conflict of interest but had to vote
and there was no way for a member to be conflicted out. He stated
that the reason for the requirement to vote, was because of the
perceived problem with the board functioning, due to the ability to
conflict more than three people off the board and of the potential
of allowing the vote to be persuaded, depending on who the user
group was.
Number 274
STEVEN DAUGHERTY, Assistant Attorney General, Natural Resources
Section, Civil Division, Department of Law, stated that in a
February 28, 1996 letter he is cited as supporting a 20 percent
limit on the level of interest, which is not his position. He
stated that he may of said it may simplify things if there was a
cut off of someone's income but the Department of law has not
advocated such a percentage.
Number 393
CHAIRMAN AUSTERMAN said he would make a note of it to correct the
record.
Number 401
MR. DAUGHERTY stated the Board of Fisheries current procedures on
conflict of interest is; the chair reviews all the proposals, each
member, at the beginning of each meeting, discloses all of their
financial or business interests in any fisheries organization, the
chair makes a ruling as to whether a member is conflicted out, any
member can object to the ruling and if a member does so, the entire
board votes on whether or not the member has a conflict.
Number 456
MR. DAUGHERTY stated that there has never been a situation when the
board has not been able to have a quorum, because of members being
conflicted out. He stated that there was a fear that this would
occur in the False Pass Area M Fishery, there were four members
with a financial interest in the fishery, however, the chairman
ruled that only two members had a significant financial interest in
the fishery. He stated that the problems the public has seen with
the board, stems from the fear that the board would not be able to
act because of the conflict of interest rules, however, that has
not happened thus far.
Number 573
MR. DAUGHERTY stated that there are some situations that are in
favor of exempting the board from the Ethics Act. He stated that
it is time consuming to look at each of the proposals and determine
what the effects are. He stated that sometimes it is difficult for
board members to exclude another board member from a proposal,
particularly when those board members have the most expertise on a
fishery. He stated that with the current act there is a method to
include the conflicted out person. Mr. Daugherty stated that if
the person is conflicted out from the beginning, they can then
submit public testimony, as any member of the public, can on the
issue. He stated that if the conflict is not found out in the
beginning of the meeting, this could not occur.
Number 723
MR. DAUGHERTY stated that are reasons for leaving the Ethics Act as
it is presently. He stated that other boards will see the Board of
Fisheries being exempted and may want to follow suit. He stated
that it may cause a reduction in public confidence with the
impartiality of Board of Fisheries' decisions. He stated that the
North Pacific Management Council is currently looking at the state
of Alaska's ethics rules as a possibility for changing its rules.
He stated that they have exempted their board members, all they
have to do is declare their conflict of interest and then they are
able to vote. He stated the public perceived this to be people
voting to put money in their own pockets.
Number 773
MR. DAUGHERTY stated that in the deliberation process, the Board of
Fisheries' member has the last chance to change the boards mind on
what action the is board is going to take, the public does not have
the chance to counter information presented after the public
testimony is heard, giving an unfair advantage to one user group.
He stated that the Board of Fisheries is made up of seven people
which is not enough to represent the viewpoints of every user group
across the state.
Number 885
CHAIRMAN AUSTERMAN asked when the Attorney General's Office gets
involved in making a ruling on the conflict of interest.
Number 898
MR. DAUGHERTY replied that the Attorney General's Office pursuant
to the statute is required to respond to written requests from the
chairman for advice on an issue. He stated that the Department of
Law has not issued any opinions to the Board of Fisheries in the
past two years.
Number 939
CHAIRMAN AUSTERMAN asked if the conflict of interests are strictly
financial conflicts.
Number 945
MR. DAUGHERTY replied that there are both personal and financial
interests that a member can conflict out on. He stated that the
Department of Law has advised the chairman that a person who was a
member of an organization, that helped draft proposals and put them
before the board, would be conflicted out under the personal
interest provision of the Ethics Act. He stated that there are
situations where it has been advised that a personal interest is
not significant, such as if a person has a sport fishing license
and participates in the fishery, it is not seen as a significant
conflict of interest, because sport fishing is open to the general
public.
Number 1005
REPRESENTATIVE MARK HODGINS asked how the Board of Fisheries is set
up.
Number 1057
MR. DAUGHERTY stated that there are two board members that may be
appointed in the near future. He stated that the board is made up
of people with both sport and commercial fishing interests. Trefon
Angasan, drift net fisherman in Bristol Bay; Virgil Umphenour, fish
processor in the Yukon River; John White, set net fisherman; Larry
Engel, former fish and game biologist; Dan Coffey, recreational
fisherman, drafter of the F.I.S.H Initiative; Dick Bower,
University of Alaska Sea Grant Program and Grant Miller, commercial
fisherman in Sitka.
Number 1167
REPRESENTATIVE HODGINS asked which two board members are going to
be reappointed.
MR. DAUGHERTY, stated that the terms that expired were Larry Engel
and Dick Bower but he did not know anything about the appointment
schedule.
Number 1195
REPRESENTATIVE HODGINS asked that in the context that any one can
buy a fishing license, as with the sport fish license, how does the
Board decide whether the commercial fisherman have a conflict of
interest.
Number 1216
MR. DAUGHERTY stated that it is a financial interest since it is a
commercial fishing permit, and subject to limited entry. He stated
that in these cases board members are frequently conflicted out in
areas in which they fish. He stated that Trefon Angasan is
conflicted out of 50 percent of the Bristol Bay proposals, not only
because of his permit but because at least ten members of his
immediate family hold permits in that fishery. He stated that
Virgil Umphenour was conflicted out of 20 proposals regarding the
Yukon River. He stated that there was an instance when the Yukon
board members were not conflicted out on the False Pass Fishery
proposal, despite the fact that Yukon River chums are taken in the
False Pass Fishery because of little financial interest due to the
low value of the catch.
Number 1327
REPRESENTATIVE HODGINS asked if the commercial fisherman were
conflicted out more than the sport fisherman and if that has a
result on the Board of Fisheries.
Number 1353
MR. DAUGHERTY stated that generally the sport fisherman are not
conflicted out although Virgil Umphenour was also a member of the
Yukon River Drainage Fisheries Association and was conflicted out
due to his membership. He stated it is always possible to be
conflicted out, if one is a member of sport fishing organizations,
however most sport members quit any conflicting positions when they
join the board, to prevent being conflicted out.
Number 1407
CHAIRMAN AUSTERMAN asked if a sport fish member, would stand the
chance of being conflicted out quite frequently, concerning Cook
Inlet issues, if he ran a charter on the Kenai River.
Number 1426
MR. DAUGHERTY replied "Yes."
Number 1436
REPRESENTATIVE SCOTT OGAN stated that he would have to agree with
Mr. Daugherty on the perception problem of partiality. He stated
that in the past there was the perception that members of the Board
of Fisheries were looking out for their own interest, as a result
it would be somewhat advantageous to keep the Board of Fisheries
the way it is. He asked if currently the person that is conflicted
out can't deliberate.
Number 1486
MR. DAUGHERTY stated "That is correct."
Number 1491
REPRESENTATIVE OGAN stated that he wondered if it would be worth
considering having a person deliberate on an issue but not be able
to vote so at least that person can bring the perspective of that
particular fisheries to the board as an expert because they
participate in the fisheries.
Number 1529
MR. DAUGHERTY stated that would address some of the public concern
but the board member would still deliberate after the public has
already testified and that could result in the perception that
someone, with a conflict, who participated in deliberations was
guiding the board. He stated a conflicted board member could still
testify on an issue but they have to do it during the public
session.
Number 1574
REPRESENTATIVE IVAN IVAN asked wouldn't it be a conflict of
interest if Dan Coffey, who drafted the F.I.S.H. Initiative, is
asked to deliberate on a proposal that has the same purpose or
effects that were in the F.I.S.H Initiative.
Number 1665
MR. DAUGHERTY stated that Mr. Coffey was allowed to participate on
all Cook Inlet issues despite the F.I.S.H. Initiative, because it
did not relate to a particular fishery. He stated that it was not
calling for a certain amount of fish in a certain fishery and there
was not an objection from a board member to the chair's ruling that
there was not a significant conflict of interest.
Number 1637
REPRESENTATIVE IVAN asked if the question was put to the six board
members to decide if the chairman's ruling was going to be
followed.
Number 1665
MR. DAUGHERTY stated that the chairman makes the ruling and then
asks the board if there are any objections.
Number 1689
NEIL SLOTNICK, Assistant Attorney General, Commercial Section,
Civil Division, Department of Law, testified via teleconference
from Anchorage, that he was prepared to testify, if anyone would
like, on the subject of other boards' experience with the Ethics
Act.
CHAIRMAN AUSTERMAN stated that seeing no desires from the
committee, the committee was going to concentrate on the Board of
Fisheries.
Number 1689
NICK SZABO, former member and chairman, Board of Fisheries,
testified via teleconference from Kodiak, that he was chairman of
the board for five years. He stated that he preferred the original
bill compared to the drafted committee substitute. He stated the
drafted committee substitute does not change the current situation
much. He stated that any kind of abstention starts halting the
effectiveness of the board process. He stated that personal
interests can prove to be more of a conflict than the financial
interests. He stated that expectations from the user groups that
a person might be deemed to represent, can outweigh any financial
interest. He stated that the seven board members probably should
not be representing user groups because their purpose is to lend a
variety of expertise. He stated that people should not be thought
of as a certain type of fisherman or as from a certain area, but as
a person of expertise and knowledge. Mr. Szabo stated that if the
right people are picked then no one should be conflicted out. He
suggested that individual members should present personal findings
on the way they voted, so that it would not be assumed they voted
due to an association with a particular proposal. He stated that
he would rather stay with HB 27 than the drafted committee
substitute, because it allowed members to participate fully in the
deliberations and in the voting, but with justification for their
reasons of voting the way they did.
Number 1887
REPRESENTATIVE OGAN stated that the drafted committee substitute
had not been adopted so technically the committee is hearing the
original HB 27 and asked if Chairman Austerman wished to entertain
a motion to adopt the drafted committee substitute.
CHAIRMAN AUSTERMAN stated he did not.
Number 1933
CHAIRMAN AUSTERMAN asked Mr. Szabo if he ever ran into the problem
of board members conflicting out and not having a quorum, as that
perceived problem was the reason HB 27 was introduced.
Number 1950
MR. SZABO stated that when he was on the board, the conflict of
interest law was not interpreted as strictly as it is at present.
He stated that during his time as chairman, twenty years ago, no
one ever got conflicted out. He stated that people had to state
what their interests were but they were not allowed to abstain. He
stated that he heard what Mr. Daugherty said about always
maintaining a quorum, but he stated that the quorum in recent years
has been maintained because it has gotten very subjective, in that
if a member did have some interest they could vote. He stated,
"That is what the public is worried about, is that you may have
four or five board members out of seven who all have some interest
in the particular issue that the board is going to address, whether
it is personal or financial. Maybe two of the five get conflicted
out because they have what is viewed as perhaps significant
financial interests but yet the other three may have interests just
as compelling although not as financially significant such as peer
pressure from user groups." He stated barely maintaining a quorum
does not mean the system is working as well as it should be.
Number 2043
LARRY ENGEL, Chairman, Board of Fisheries, testified via
teleconference from Matsu, to answer any questions.
Number 2060
CHAIRMAN AUSTERMAN asked if he felt that legislation is still
needed.
Number 2068
MR. ENGEL stated that the Ethics Act as it pertains to the Board of
Fisheries had put an enormous stress on the system and the
chairman. He stated that a lot of time and testimony is spent
figuring out whether a person has a conflict of interest or not.
Mr. Engel stated that having five members able to vote results in
minority control, of the board and of the passage of the proposals.
He stated the focal points now of the board and of the public is
whether a person should or should not participate.
Number 2153
CHAIRMAN AUSTERMAN stated that the drafted committee substitute
that he has not introduced yet, allows the entire board to a vote
on the whether a conflict of interest is present. He asked Mr.
Engel felt this would be a better process.
Number 2177
MR. ENGEL stated that it would take some of the pressure off of the
chairman but would really just be the some set up because anybody
could still object. He stated that he objected to language of
"must participate" and "required to participate." He stated that
currently if a member asks to be excused from a meeting it has
always been allowed.
Number 2231
REPRESENTATIVE HODGINS asked if the philosophy of the Board of
Fisheries voting goals are user orientated.
Number 2259
MR. ENGEL replied that it is not user orientated, although it can
occur. He stated that board members should be found based on their
interest in the fisheries, have good judgement and knowledge of the
fisheries and provide a diversity of interest.
Number 2294
REPRESENTATIVE HODGINS asked if Mr. Engel felt there was a need for
the conflict of interest if members are just concerned with the
resource.
Number 2300
MR. ENGEL replied that it is a lay board that functions because the
members participate in the various fisheries but this creates the
conflict of interest. He stated that some board members will ask
to be excused and others will not. He stated that he does think
changes need to be made but he does not know if HB 27 is the
answer.
Number 2373
CHAIRMAN AUSTERMAN asked if Mr. Engel would present his ideas for
a solution at a later date if HB 27 is not to be the answer.
Number 2394
REPRESENTATIVE HODGINS asked, "what specifically would be of a
benefit to the lay person with a specific knowledge, to help the
resources of the state of Alaska, without crossing over ethical
problems."
Number 2434
MR. ENGEL stated that he does not have an answer, but the board is
not functioning the way the public thinks it should be.
TAPE 97-2, SIDE B
Number 021
MR. ENGEL stated that at one time there were three board members
who had permits in the Bristol Bay Fishery as well as one crew
member in that fishery, that voted on a Bristol Bay issue, which
was then challenged in court. He stated that there is a problem in
the way we interpret the conflict of interest laws.
Number 051
CHAIRMAN AUSTERMAN asked who Mr. Engel was referring to when he
stated we have a problem in interpreting the conflict of interest
laws.
Number 062
MR. ENGEL stated that "we" includes everyone involved, the board,
the Attorney General's Office and the public.
Number 099
BRUCE SCHACTLER stated that he has spent many hours watching the
board decide who should be able to deliberate and then once decided
watching the process with a partial board. He stated that Alaska
needs the expertise of the lay board and that it is frustrating
when expert members are prevented from deliberating. He stated the
members were put on the board because of their expertise and it is
their expertise that is conflicting them out. He stated that the
people doing the deliberating are not getting the information they
need with the way the board is currently operating.
Number 215
REPRESENTATIVE OGAN stated that the Title 16 requirements state
that "The governor shall appoint each member on the basis of
interest in public affairs, good judgement, knowledge, and ability
in the field of action of the board." He stated that when he
served on the hunting guide board there were strict qualifications
and a cross section of references, a certain number of guides,
outfitters, transporters, and public members. He stated it was
designed so people with expertise could be represented but provided
a balance for decision making. He stated that a cross
representation of fisherman may be something to consider with the
Board of Fisheries. He stated that the governor could be biased
towards one group or another when he appoints members.
Number 304
CHAIRMAN AUSTERMAN said, "Whether we could come up the new method
of board appointments or not, is a issue that while it would have
some direct bearing on the conflict of interest, unless we actually
address the conflict of interest that same conflict of interest
would have the same effect on whatever board you'd have." He
stated that he does not necessarily want to discuss the way the
board should be composed at this meeting.
Number 346
REPRESENTATIVE OGAN stated, "I am probably out of order in bringing
it up because it is a different subject but I think it does relate
to the conflict of interest issue because if you had the board
designed so there was a wide interest represented, then require
everybody to vote...."
Number 370
CHAIRMAN AUSTERMAN stated that he would dedicate a future meeting
to the subject and hear proposals from the public and the
departments on a different methods for composing the Board of
Fisheries.
Number 400
REPRESENTATIVE IVAN asked Mr. Daugherty what fears he had on HB 27.
Number 424
MR. DAUGHERTY replied his worst fear was to have members required
to vote on an issue that they know nothing about because they
missed public testimony on the proposal. He stated that the Board
meets for about 60 days a year, considering 600 proposals in that
time, and members often miss part of a meeting due to other
responsibilities and occurrences. He stated that the current
board's practice is if a member misses the public testimony or the
deliberations on the an issue, they are not allowed to vote on that
issue.
Number 470
REPRESENTATIVE IVAN stated that the HB 27 would not conflict out
the members, they would be allowed to deliberate and hear the
public testimony and vote.
Number 486
MR. DAUGHERTY replied that HB 27 would require the members to vote
regardless if they had heard all the testimony or deliberations.
He stated that the conflict of interest issue is a public policy
question for the legislature to decide rather then a legal
question. He stated that the Department of Law's concern is the
public's perception and he thinks there should be a provision that
states, if a board member misses some of the deliberations, they
would not be allowed to vote on that issue.
Number 545
CHAIRMAN AUSTERMAN asked if the Department of Law sees a problem
with HB 27 creating a problem with other boards around the state.
Number 563
MR. DAUGHERTY stated it may result in a huge onslaught of other
boards and commissions requesting exemption from the Ethics Act.
He stated that the Ethics Act depends on board members to declare
their conflict to the board, and relies on being applied rigorously
by the chairman. He stated that HB 27 may cause a decreased
incentive for other boards to comply.
Number 607
CHAIRMAN AUSTERMAN asked if it was the Department of Law's position
that the existing structure of the Board of Fisheries be left the
way it is.
Number 613
MR. DAUGHERTY responded that at this point the Department of Law
believes the existing system is working and through wise
appointments, it can continue to function.
CHAIRMAN AUSTERMAN asked, "Even after Mr. Engel's statement, having
just served two years as a chairman, that there is still a
problem?"
Number 627
MR. DAUGHERTY replied, "Yes." He stated that he recognized it is
a burden on the chairman, although it is something that comes with
the position. He stated, "The option is to exempt them and you run
into the same type of public perception problems that the North
Pacific Fisheries Management Council faces, when it takes action.
At this point with the seven member board it seems like it needs to
be applied fairly rigorously or else if there is a total exemption
the same problems are going to be there as with the North Pacific
Fisheries Council."
Number 663
REPRESENTATIVE HODGINS asked if the Department of Law feels the
public interest is best served by a strong chairman instead if a
strong consensus of the board members, in conflict of interest
matters.
Number 680
MR. DAUGHERTY stated that he believed the board is best served by
having the chairman initially reviewing the proposal and making the
determination. He stated that many of the members would not be
prepared at the start of the meeting to do so because they usually
have not reviewed all the material prior to the meetings as the
chairman is required to do. He stated that most members would not
be able to make the decision until after the public testimony is
given and if the member is conflicted out after the public
testimony then they do not have the option to present their public
testimony to the board. He stated that the board is in a better
situation when members are conflicted out at the beginning of a
meeting.
Number 742
REPRESENTATIVE HODGINS stated he was trying to figure out if the
board is better off with a strong chairman or a consensus of the
members.
Number 777
DUNCAN FIELDS stated that he would encourage the committee to defer
to the chairmans' testimony that there is a problem that needs to
be solved. He stated that the conflict of interest has added a new
layer of process and time to the board meetings. He stated that
the first two days of a seven day meeting is spent resolving
conflict issues. He stated that the Board of Fisheries has a
different character as to its diverse group of members, in contrast
to other boards with a homogeneous group of members that could
apply the conflict of interest law evenly throughout the members.
He stated, "It is true that there has never been an instance where
conflicts have eliminated a quorum of the board, it is also true
and very important that when the board begins to function with six
or five or even four members, the public has the sense that they
are not getting a full hearing before the board." He stated that
the current conflict of interest law spawns litigation and costs
the state money.
CHAIRMAN AUSTERMAN stated that he did plan to move HB 27 at this
meeting, and it will be heard again at a later date.
ADJOURNMENT
Number 988
CHAIRMAN AUSTERMAN adjourned the House Special Fisheries Committee
meeting at 6:13 p.m.
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