03/14/2007 08:30 AM House FISHERIES
| Audio | Topic |
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| Start | |
| HB15 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 15 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE SPECIAL COMMITTEE ON FISHERIES
March 14, 2007
8:56 a.m.
MEMBERS PRESENT
Representative Paul Seaton, Chair
Representative Kyle Johansen
Representative Craig Johnson
Representative Gabrielle LeDoux
Representative Peggy Wilson
Representative Bryce Edgmon
MEMBERS ABSENT
Representative Lindsey Holmes
COMMITTEE CALENDAR
HOUSE BILL NO. 15
"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
PREVIOUS COMMITTEE ACTION
BILL: HB 15
SHORT TITLE: BOARD OF FISHERIES CONFLICTS OF INTEREST
SPONSOR(s): REPRESENTATIVE(s) SEATON
01/16/07 (H) PREFILE RELEASED 1/5/07
01/16/07 (H) READ THE FIRST TIME - REFERRALS
01/16/07 (H) FSH, RES
03/14/07 (H) FSH AT 8:30 AM BARNES 124
WITNESS REGISTER
REPRESENTATIVE PAUL SEATON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: As prime sponsor of HB 15, introduced the
bill and responded to questions.
STEVEN DAUGHERTY, Assistant Attorney General
Natural Resources Section
Civil Division (Anchorage)
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Responded to questions regarding HB 15.
ROBERT HEYANO
Dillingham, Alaska
POSITION STATEMENT: Testified in support of HB 15.
ROBIN SAMUELSEN
Dillingham, Alaska
POSITION STATEMENT: Testified on HB 15.
PAUL SHADURA, Executive Director
Kenai Peninsula Fisherman's Association
Soldotna, Alaska
POSITION STATEMENT: Testified in support of HB 15.
JERRY MCCUNE, Lobbyist
United Fisherman of Alaska
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 15.
BYRON CHARLES
(No address provided)
POSITION STATEMENT: Testified with concerns on HB 15.
ACTION NARRATIVE
CHAIR PAUL SEATON called the House Special Committee on
Fisheries meeting to order at 8:54:39 AM. Representatives
LeDoux, Wilson, Johnson, and Edgmon were present at the call to
order. Representative Johansen arrived as the meeting was in
progress.
HB 15-BOARD OF FISHERIES CONFLICTS OF INTEREST
8:55:05 AM
CHAIR SEATON announced that the only order of business would be
HOUSE BILL NO. 15, "An Act relating to participation in matters
before the Board of Fisheries by members of the board; and
providing for an effective date."
8:55:17 AM
REPRESENTATIVE WILSON moved that the committee adopt CSHB 15,
Version 25-LS0114\C, Kane, 3/13/07, as the working document.
There being no objection, Version C was before the committee.
[Chair Seaton passed the gavel to Representative Wilson.]
The committee took an at-ease from 8:56 a.m. to 8:57 a.m.
8:57:08 AM
CHAIR SEATON, speaking as the prime sponsor, explained that HB
15 seeks to allow better participation and voting by those on
the Board of Fisheries (BOF) who are knowledgeable about the
subjects [before BOF]. Currently, those who know the most about
a fishery have to declare a conflict and recuse themselves from
the discussion and voting. This legislation specifies that
those participating on the BOF who are participants in a fishery
will declare the conflict but be allowed to participate in the
deliberations and vote. However, those with a financial
conflict such as board members with a paid financial interest as
a consultant, lobbyist, or executive director [of an
organization] wouldn't be able to deliberate or vote. He
highlighted that under Version C everyone will have to declare
all their conflicts of interest, as is the case currently. He
noted that Version C also adds a requirement for a report, which
he suggested the committee may want to review because it may
generate a fiscal note. In conclusion, Chair Seaton reiterated
that the purpose of HB 15 is to allow the most qualified people
to participate on the board without having to conflict out
regarding issues of prime concern.
9:00:21 AM
REPRESENTATIVE LEDOUX inquired as to why it's acceptable for
someone to vote on an issue if they stand to make substantial
money [from a particular decision] as opposed to an executive
director of a fisheries organization who's making $75,000.
CHAIR SEATON opined that there is an inherent moral/ethical
conflict if, for instance, a charter boat fisherman is taking
action that could reward him in terms of income. However,
there's no moral conflict for someone who is paid for doing a
job.
9:03:03 AM
REPRESENTATIVE LEDOUX opined that it seems that the sponsor is
saying that a lobbyist may vote for something on behalf of a
client and may not feel guilty about it. However, an individual
may vote for an issue from which he/she may benefit and feel
guilty about it.
CHAIR SEATON remarked that it's an interesting situation when a
lobbyist is paid to be present and do his/her job for which
there should be no conflict or guilt. However, if an individual
would be voting on a matter that would influence the industry in
which he/she participates, there's an inherent moral conflict.
REPRESENTATIVE LEDOUX, referring to the North Pacific Fisheries
Management Council (NPFMC), remarked that she hasn't observed
any better public decisions from those who are voting based on
the benefit to their financial interests as opposed to an
individual voting on behalf of a client's financial interests.
9:05:18 AM
REPRESENTATIVE JOHNSON turned attention to the sponsor
statement, which relates that individual board members were
required to recuse themselves 10 percent of the time during.
Considering the lengthy board cycle, he asked if that should be
taken as significant.
CHAIR SEATON opined that it's a significant amount of time to
recuse some of the most knowledgeable people on what are
sometimes very controversial issues. He noted that the board
believes it's a significant amount of time as well. He directed
attention to testimony from Art Johnson [given during the April
13, 2005, House Special Committee on Fisheries on House Bill
241] in the packet, which read:
What's also problematic ... is the potential for
losing a board member due to a conflict of interest.
We're a seven-member board, and regardless of how many
board members are present and participating. So
whether there [are] absences and/or conflicts, we
always still have to have four votes to carry any
motion. And so especially if it's compounded with an
absence by another board member, a lot of times it
becomes very difficult for us to take regulatory
action.
CHAIR SEATON indicated that the committee packet should also
include testimony from another previous board member, who also
found it difficult for the board to move forward on issues when
there are recusals. The aforementioned was especially the case
when the issue involved a fishery that had more than one board
member having a conflict.
REPRESENTATIVE EDGMON provided an example of recusal by a board
member, whose family member was a fisherman.
REPRESENTATIVE WILSON emphasized that recusing those people with
the most expertise on an issue can be detrimental to the
discussion.
REPRESENTATIVE LEDOUX opined that it's a conundrum because a
board could consist of people with no interest in or information
on the issues before it or it can consist of people with a
financial interest in the issues who then vote on that basis.
She questioned which is worse.
9:10:02 AM
CHAIR SEATON pointed out that the sunset date in the legislation
was chosen to allow for review after the completion of a full
board cycle in a region of the state.
9:10:40 AM
REPRESENTATIVE JOHNSON expressed concern that the sunset will
set up a situation in which those more qualified members who
were participating and didn't have to recuse themselves could be
lost when it sunsets.
CHAIR SEATON referred to it is a balancing act. This is a
significant change and the legislature should review it, he
opined. He pointed out that the legislature could change it at
any time.
9:12:19 AM
REPRESENTATIVE JOHNSON, speaking as a member of the House State
Affairs Standing Committee, related that he and its members have
spent many hours crafting an ethics package, which specifically
attempts to build transparency into government. Therefore, he
said he is reluctant to move in a direction counter to that
philosophy.
9:14:50 AM
REPRESENTATIVE WILSON asked whether under this legislation,
board members would still be required to disclose [any potential
conflicts of interest].
CHAIR SEATON explained that Version C requires that board
members continue to report all the disclosures and declarations
they are currently required to report. The only difference is
that the chairman will determine if someone is conflicted out
per the specifications of the legislation. He opined that the
BOF's process is very transparent and there's no intention with
HB 15 to make the process less transparent. In further response
to Representative Wilson, Chair Seaton reviewed the new
subsection that would allow the participation of a member of the
BOF if that member or his/her immediate family member had a
permit or license issued under AS 16.50, sport fishing and crew
members' license, AS 16.40.270, sport guided charter licenses,
and AS 16.43, Commercial Fisheries Entry Commission (CFEC).
9:17:41 AM
REPRESENTATIVE EDGMON, referring to Section 3 of Version C,
pointed out that AS 39.52.120(f) doesn't already exist.
9:18:21 AM
STEVEN DAUGHERTY, Assistant Attorney General, Natural Resources
Section, Civil Division (Anchorage), Department of Law,
specified that subsection (f), the sunset provision, is a new
provision that's added in Section 2.
CHAIR SEATON interjected that when the sunset date is reached,
this new exemption section would be repealed in 2011 and return
to the requirements of current law.
[Representative Wilson returned the gavel to Chair Seaton.]
9:19:26 AM
ROBERT HEYANO, clarified that although he is a member of the
Board of Fisheries, he is testifying on his own behalf in
support of HB 15. He related his belief that changing the
conflict of interest law would allow more participation from
those BOF members who are actively participating in the fishery
and have extended family members participating in the fishery as
well. Should HB 15 pass, he predicted that there will be more
interest from the public to serve on the BOF. Furthermore,
passage of this legislation will greatly enhance the concept of
a lay board by providing the board with the personal experience
and knowledge those board members have in relation to a
particular fishery issue. Drawing upon his membership on the
BOF, Mr. Heyano has a great impact on those BOF members who are
long-time Alaskans with extensive family history in the fishing
industry. He recalled that at the last board meeting he, as a
driftnet permit holder for Bristol Bay, was conflicted out on
approximately 30 percent of the Bristol Bay proposals. He noted
that there are 1,800 driftnet permit holders and he found it
difficult "to find where any of the proposals would actually
give me a financial benefit, being 1 of 1,800 drift permit
holders." Having the board members disclose potential conflicts
should alleviate concerns, he opined. He pointed out that there
is an extensive confirmation process for potential board
members, which should address unethical applicants.
9:23:18 AM
REPRESENTATIVE EDGMON requested that Mr. Heyano discuss how the
board process works better with members who have knowledge of a
certain area or fishery.
MR. HEYANO highlighted that the Cook Inlet fishery is very
complex, and therefore it was helpful to have members with
knowledge of that fishery. The existing conflict of interest
laws and the notion of a lay board consisting of members with
expertise of the issues before the board seem to be at odds.
9:25:29 AM
REPRESENTATIVE WILSON related her understanding that the [goal]
is to make the board well-rounded with members from the various
sectors of the fishing industry. However, when debate arises a
member with specific knowledge may be conflicted out.
MR. HEYANO noted his agreement, adding that the situation is
very frustrating. He related that he has not been able to
deliberate on the areas in which he had great expertise. Mr.
Heyano, speaking as a board member, opined that it's very
helpful for those lacking expertise in a certain area to have
members who do have that expertise.
9:27:20 AM
ROBIN SAMUELSEN, informed the committee that although he is a
past member of the Board of Fisheries and for nine years has sat
on NPFMC, he is testifying on his own behalf. He said that when
he was a BOF member the members didn't have to deal with the
conflict of interest statement imposed today. He related that
NPFMC has went through various iterations in order to make the
recusal as transparent as possible. He recounted his experience
on the BOF when an issue pertaining to crab resulted in the
member from Kodiak with crabbing knowledge to recuse himself
from the meeting. Mr. Samuelsen, as a non-crabber, had to seek
information from the public, which turned out to be false
information. The recused BOF member informed Mr. Samuelsen of
the erroneous information after the vote was taken. Mr.
Samuelsen opined that the best BOF members need to make the
decisions, which are those who participate in the fishery and
have knowledge of it. However, today those who are
knowledgeable have to recuse themselves and aren't allowed to
participate. He opined that the full board needs to vote on the
conflict of interests. He further opined that HB 15 enhances
the public process as it allows the best information to come
forward and allows the board to make well-rounded decisions.
CHAIR SEATON clarified that HB 15 doesn't mandate that all
members have to vote. However, it precludes a member from being
conflicted out due to a participatory interest. He posed a
situation in which a member is faced with a decision on a matter
that would benefit that member, and asked if Mr. Samuelsen felt
that the member would recuse himself/herself because of the
conflict.
MR. SAMUELSEN related that board members build trust with each
other and a member who lies to other members will quickly be
tainted and ostracized by the board. Depending upon the
severity of a conflict, an individual would recuse
himself/herself. He related that under the existing guidelines,
he would be conflicted out from "here to the Yukon River" due to
the participation of family members in the fishing industry.
Therefore, he opined that the existing guidelines are too
restrictive and the best decisions aren't coming from the BOF.
9:34:02 AM
PAUL SHADURA, Executive Director, Kenai Peninsula Fisherman's
Association, provided the following testimony:
We come before you, today, in total support for HB 15,
Board of Fisheries participation legislation to
improve the public process of the board. We find it
incredulous that it is acceptable to have active,
effected positions on position boards, teachers on
teacher's boards, beauticians on beautician's boards,
but here we have limitations on active commercial
fishermen on a fisheries board. AS 16.05.221
references qualifications for Board of Fisheries
members: knowledge and ability in the field of action
of the board. Doesn't this, by definition, mean that
the participants should have intimate knowledge of the
business beforehand. We have a graying of the fleet;
is this ... board's members relegated to those who no
longer have vested interest? Who do active, youthful
commercial fishermen relate concerns to? How can
vital revitalization concepts be given new insight.
Many of you may be aware of the current issue of the
firing of federal attorneys for political reasons.
This is perfectly within authority to the
administration, because these individuals serve at the
pleasure of the president. In Alaska, the attorney
general ... also serves at the pleasure of the
governor's office and is subject to the same political
prejudices. The attorney general's representative
sits on the Board of Fish and reviews and recommends
to the chair of the board an issue of conflict of
interest. Twenty years ago you would see many
exuberant commercial fishermen on the board and very
little challenges to their participation. Under the
last two administrations, there has been advice given
by the board's counsel that has systematically
rendered commercial fishing voices moot. A biased
opinion of ethics construction that has rendered the
board's current commercial fishing area expertise
useless. There is a conflict of interest here, it is
the interest of those that want to destabilize
commercial fishing in the state. A slippery bias that
may end in the collapse of our state's most
sustainable industry.
9:36:46 AM
JERRY MCCUNE, Representative, United Fisherman of Alaska, began
by stating support for HB 15. He said that there's no question
that a commercial fisherman serving on the BOF will be
conflicted out. However, a lodge owner or part owner in a lodge
that might have a direct conflict likely won't be conflicted
out, he opined. He provided an example in which a processor
processed sport caught personal use fish and sold those fish in
a particular magazine. In that instance, the conflict was
declared and deemed not to be a conflict of interest, and thus
the member could participate. Mr. McCune opined that the
[decisions related to conflicts of interest] have gone too far
on the commercial fishermen's side, but not far enough for the
lodge, charter, and other interests that could have a direct
benefit. However, per the statute the direct benefit has to be
proven, which is problematic. Mr. McCune related the desire to
have full disclosure on paper with the attorney general's office
and in the public. He expressed the need to move forward with
some form of HB 15 so that those with the expertise [in
fisheries] seek membership on the Board of Fisheries.
9:39:07 AM
REPRESENTATIVE LEDOUX noted her agreement with Mr. McCune that
the treatment of commercial fishermen versus lodge owners
doesn't sound fair. However, she suggested that perhaps the
solution may be to tighten [the conflict of interest
requirements] for the lodge owners rather than to loosen them
for the commercial fishermen.
9:40:04 AM
MR. MCCUNE pointed out that the direct conflict statute applies
closely to those with a permit or interest in a particular
fishery. He reiterated that it's difficult to prove that a
lodge owner may receive a direct benefit from a BOF decision.
He related that those with whom he has talked with want full
disclosure and the chair could determine that those with real
problems can deliberate, but not vote. He related his
understanding that the intent is to move in a direction so that
everyone can participate and the chair determines, under
disclosure rules, whether the member can vote or merely
deliberate on a particular issue.
9:41:48 AM
CHAIR SEATON indicated that part of the problem is that there is
the potential of conflicting out enough board members that no
decisions could be made.
MR. MCCUNE confirmed that [such a situation] happened once
before when there almost weren't enough members to make a
quorum. He added that a relative's involvement can cause a
member to be conflicted out. There have been situations in
which members have been sick and not in attendance and others
are conflicted out such that only four members were making
decisions on very important issues. The desire, he opined, is
for all members, if possible, to be part of the discussion and
making the decisions.
9:43:14 AM
REPRESENTATIVE JOHANSEN inquired as to how an average citizen
can discover information about members of the BOF.
MR. MCCUNE related his understanding that BOF members have to
disclose permits, licenses, and ownership [in the fishing
industry] with the attorney general's office and the public as
well as conflicts of interest that arise prior to the BOF
convening.
CHAIR SEATON reminded the committee that staff of the attorney
general's office is online and could answer that question.
9:44:19 AM
BYRON CHARLES, expressed concern that folks are focusing on the
quantity of fish rather than the quality of the fish being
taken.
CHAIR SEATON offered to provide Mr. Charles with information on
the matter.
9:46:54 AM
MR. DAUGHERTY, in response to Representative Johansen's earlier
question, explained that at each meeting each board member is
required to make an oral disclosure of any interest in the
fishery by the member or his/her family. All the board meetings
are recorded and available to the public. Additionally, an
Alaska Public Offices Commission (APOC) disclosure is required.
9:48:42 AM
REPRESENTATIVE JOHNSON asked if the statute relating to
disclosures refers to family or immediate family.
MR. DAUGHERTY clarified that the statute refers to immediate
family, which read: "the spouse of the person; another person
cohabitating with the person in a conjugal relationship that is
not a legal marriage; a child including a stepchild and adopted
child of the person; a parent, sibling, grandparent, aunt or
uncle of the person; and a parent or sibling of the person's
spouse."
9:50:24 AM
REPRESENTATIVE EDGMON requested further information on the level
of disclosure and the strength of conflict of interest of the
BOF in comparison to other lay boards.
MR. DAUGHERTY suggested that the ethics attorney at the
Department of Law could respond to that question, although he
noted that the same statute applies to all state boards and
commissions.
9:53:39 AM
CHAIR SEATON announced that the bill would be held, and
solicited further comments be sent to his office.
ADJOURNMENT
There being no further business before the committee, the House
Special Committee on fisheries meeting was adjourned at 9:53
a.m.
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