Legislature(2005 - 2006)Anch LIO Conf Rm
11/15/2005 10:00 AM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| Discussion of Ethics Legislation Including Sb 187, Sb 186, Sb 127, and Hb 194 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
Anchorage, Alaska
November 15, 2005
10:14 a.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson
Representative John Coghill
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
Representative Nancy Dahlstrom
Representative Pete Kott
COMMITTEE CALENDAR
DISCUSSION OF ETHICS LEGISLATION INCLUDING SB 187, SB 186,
SB 127, AND HB 194
- HEARD
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
REPRESENTATIVE PEGGY WILSON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Provided comments during discussion of
ethics legislation.
JOYCE ANDERSON, Ethics Committee Administrator
Select Committee on Legislative Ethics
Alaska State Legislature
Anchorage, Alaska
POSITION STATEMENT: Provided comments and responded to
questions during discussion of ethics legislation.
ACTION NARRATIVE
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 10:14:17 AM. Representatives
McGuire, Anderson, Coghill, and Gara were present at the call to
order. Representative Gruenberg arrived as the meeting was in
progress.
^DISCUSSION OF ETHICS LEGISLATION INCLUDING SB 187, SB 186,
SB 127, AND HB 194
10:15:11 AM
CHAIR McGUIRE relayed that the committee would be conducting a
work session to formulate ideas about an ethics bill that could
be used as a vehicle during the upcoming session, and
characterized the senate bills as having set the stage for
discussion during the interim. She indicated that it is
important to let the public know that the issue of ethics is
important to the legislature, particularly in light of the
"Gregg Renkes situation."
REPRESENTATIVE GARA said:
My personal view on the ethics situation is that this
all came out of the "Gregg Renkes affair": ... he
owned ... $100,000 worth of KFx stock and the question
was whether or not he should have been negotiating a
deal that involved KFx. And what came out of it were
two opinions, one from Tom Daniel for the "ethics
board," one from Bob Bundy for the governor. Both of
them said ... the one thing that "we" think "you" need
to change is to explain to people what is a
"significant interest" ... and therefore you have to
disqualify yourself from action on a matter, and
what's ... an "insignificant interest" and
[therefore]... you don't have to disqualify yourself.
And [so] ... the question was whether ... Gregg
Renkes's stock ownership was considered significant or
not, and the law was not particularly clear.
So Senator French and I have filed [legislation] - he
has a Senate companion bill [SB 127], mine is HB 194.
We said, let's just deal with that one shortcoming in
the law - let's not address these other issues about
open meetings and closed meetings and ... penalties on
people who file ethics complaints - ... let's just
deal with the one issue that I think we all probably
agree ... needs to be addressed. And so what other
states do is ... they draw a bright line, generally:
it's an insignificant interest if it's, let's say,
less than $5,000, or let's say, less than $10,000.
And there can be good debate about which one of those
numbers we should pick, but I think we should just
deal with that issue.
REPRESENTATIVE GARA opined that they should clarify the issue of
ownership and institute a [bright line]. Using as a
hypothetical example proposed minimum wage legislation, he
indicated that the law ought to be clear that although a person
who has an interest in a business and therefore has a general
interest in such legislation could work on that legislation,
he/she should not be working on a contract involving his/her
business.
CHAIR McGUIRE relayed that she's spent time during the interim
discussing this issue with constituents. She added:
We have a citizen-based legislature, we want
legislators to work - at least that has been the
desire of the public so far - and yet, inevitably,
conflicts can arise when you do work outside the
legislature with the things you do inside. And I
think it's worthy of discussion - how you handle those
conflicts. The way it works now, a member will state
that conflict in a committee or on the floor and then
ask to be recused from voting, and the response is
always, "No, we object to that and we'd like you to
vote." I wonder if there is more that could or should
be done in that area.
10:21:33 AM
REPRESENTATIVE GARA acknowledged that perhaps the legislature
could create a bill that deals with both executive [branch]
ethics and legislative ethics, and said he agrees with Chair
McGuire's comments that legislators need to have work outside of
the legislature. However, the public begins asking questions
regarding ethics when legislators do consulting work for
businesses that have interest in legislation. He suggested that
the committee consider developing legislation that requires
legislators to disclose, in detail, what they do for a
particular business, rather than simply restricting what kind of
work legislators can engage in outside of his/her legislative
duties. He indicated that some language regarding the
legislative ethics issue has already been crafted, and opined
that legislators ought to be required to simply state, on an
hour-by-hour basis - what they do [as consultants]; such
disclosure would let the public know whether legislators are
doing work unrelated to their legislative duties.
REPRESENTATIVE GARA, in response to questions, said he would
leave it up to the committee to decide whether it wanted to
create a separate bill specifically to address that issue. He
offered his understanding that currently, if [a legislator] has
a consulting contract, the law requires the legislator to list
the amounts he/she is paid by the companies he/she provides
services to but is not required to detail what those services
consisted of. He suggested that a timesheet format could be
instituted to address this situation, and that such would add a
lot of integrity to the system. He indicated that he could
support something like that.
REPRESENTATIVE ANDERSON said, "Sure."
CHAIR McGUIRE surmised that some methodology could be devised to
show a reasonable member of the public what a legislator is
getting paid to do as a consultant. She expressed a desire to
address both legislative ethics and executive branch ethics, and
to do so via the institution of a bright line. A person could
have the best of intentions, but without a concrete bright line,
he/she could still be guilty of an ethics violation.
Furthermore, with a bright line in place, disclosure and
transparency would be more meaningful to the public.
10:26:41 AM
REPRESENTATIVE COGHILL acknowledged that transparency is a good
thing, but cautioned against establishing too high a standard of
accountability because doing so could create a burden. A person
might do something that the public does not approve of without
that action being unethical. For example, with regard to a
contract, a person might take an action that is self serving but
not unethical, action that is merely the result of bad judgment.
Via a transparent methodology, the public would be able to
consider the question of whether a person's actions were
desirable. He cautioned against robbing the citizens of Alaska
of their ability to make judgments regarding a person's actions.
REPRESENTATIVE COGHILL remarked that a person needs to be held
accountable for underhanded actions, but opined that having to
account for one's actions on an hourly basis could be
tremendously burdensome. He cautioned against simply assuming
that all of a person's actions are the result of bad judgment,
and said he is reluctant to put a dollar figure on [what would
constitute a significant interest], particularly since a
particular action could be unethical even though it only has an
impact on one's insignificant interests. He also pointed out
that a "blind trust" could involve $100 million, for example -
certainly a significant interest - and that there might be ways
to manipulate a blind trust containing that much money without
such manipulation being considered unethical. He concluded by
expressing a reluctance to put a dollar figure on "unethical."
REPRESENTATIVE ANDERSON complimented Representative Gara for
being responsive and proactive [on the issue of executive branch
ethics], and surmised that the public wants further definitions
and delineations with regard to what would constitute a
conflict. He suggested that public officials do have
apprehension regarding potential conflicts, proper disclosure,
and suspected impropriety. He opined that there should be both
accountability and fairness, and said he hopes [the committee
can create legislation] that will provide "a bright line test"
for legislators, candidates, and others, so that the public
won't be faced with the same situation as occurred regarding
Gregg Renkes.
10:35:39 AM
REPRESENTATIVE PEGGY WILSON, Alaska State Legislature, suggested
that a timesheet methodology could be very time consuming and
may not actually tell the public anything. She indicated that
the law should be clarified so that members of the public will
be able to decide for themselves whether someone has behaved in
an unethical fashion.
CHAIR McGUIRE said she would have staff work with Legislative
Legal and Research Services to research the issue of what is
done in other states that have citizen legislatures and develop
for the committee a matrix of what other states allow and
require with regard to potential conflicts of interest. She
relayed, for example, that she'd heard that in one state, a
[legislator] could actually abstain from voting.
JOYCE ANDERSON, Ethics Committee Administrator, Select Committee
on Legislative Ethics, Alaska State Legislature, spoke next in
response to comments. [Her initial comments were
indiscernible.] She said the Select Committee on Legislative
Ethics had requested a legal opinion from Brent R. Cole -
outside legal counsel for the Select Committee on Legislative
Ethics - on the section of [SB 187] that pertained to uniform
rules. The committee has been able to research up to Section 7
of the bill, and has come up with some suggestions and points to
research further, particularly for the section pertaining to
advisory opinions because it is a little bit unclear with regard
to what the process is after discussion by the Select Committee
on Legislative Ethics.
MS. ANDERSON relayed that the Select Committee on Legislative
Ethics is not in favor of the proposed $5,000 [civil penalty] in
Section 3 of SB 187. Currently, because of a recent change, the
Select Committee on Legislative Ethics is required to dismiss a
complaint if it is made public; she said that the Select
Committee on Legislative Ethics feels that this requirement has
probably helped the process because now the public is aware of
the fact that the committee is required to dismiss complaints
that have been made public. However, this requirement, should
the Select Committee on Legislative Ethics have to act on it,
won't preclude either the committee itself or another individual
from filing the complaint.
MS. ANDERSON mentioned that member's packets should contain a
sectional analysis of SB 187 that she prepared, and that this
analysis includes additional comments by Legislative Legal and
Research Services.
10:42:54 AM
REPRESENTATIVE GRUENBERG - member, Select Committee on
Legislative Ethics - asked Ms. Anderson to comment on issues
that have captured the attention of the Select Committee on
Legislative Ethics. He posited that in addition to being a
growing and changing subject, the issue of ethics is of great
and constant interest to the public. Furthermore, the issue of
ethics is one that public officials in all branches of
government face at all times and is one that must be constantly
changed in order to address a changing array of factual data.
REPRESENTATIVE GRUENBERG suggested that it is time to address
the subject of ethics, both for the legislature and for the
executive branch. He indicated that some consideration has been
given to the concept of establishing an ethics training program
for the legislature, though any such a program may not be ready
to institute until 2007. He relayed that the Select Committee
on Legislative Ethics is putting together legislation to address
technical problems and language that has caused the committee
some concern; for example, the phrase, "matters of legislative
concern" is one that is used with regard to whether a legislator
is allowed accept certain dollar amounts or certain types of
gifts, but the phrase is currently undefined.
MS. ANDERSON indicated that the term "legislative purpose" also
raises the same type of concerns.
REPRESENTATIVE GRUENBERG said that other issues of concern
pertain to disclosures, particularly regarding stocks and stock
options.
MS. ANDERSON confirmed that the Select Committee on Legislative
Ethics is having a bill drafted that is intended to address
issues that the committee has concern about. In addition to the
aforementioned, for example, the legislation being drafted
proposes to deal with issues such as: including in the
legislative ethics code the complaint process pertaining to the
Office of Victims' Rights (OVR); adding language pertaining to
the disclosures included in the [legislative] journal; changing
the terms of office for public members of the Select Committee
on Legislative Ethics so that only two positions come open at
one time; and addressing other more technical points that have
been overlooked over the course of time.
10:49:24 AM
REPRESENTATIVE GRUENBERG noted that there is the legislative
ethics Act, the executive branch ethics Act, and the financial
disclosure Act under the Alaska Public Offices Commission
(APOC). He suggested that the all of the committees and
agencies working on the issues of ethics - the House Judiciary
Standing Committee, the House State Affairs Standing Committee,
the Select Committee on Legislative Ethics, and the Alaska
Public Offices Commission - should try to consider all of the
proposed bills together and hold hearings on them so that all of
the issues that have arisen could be addressed.
CHAIR McGUIRE remarked that it may be appropriate for all of the
committees dealing with the issue of ethics to meet jointly,
that having inconsistency between the aforementioned three acts
could be a recipe for disaster, and that her understanding is
that very few states have a legislatively created ethics
committee.
MS. ANDERSON clarified that the State of Washington has recently
set up its ethics committee similar to Alaska and may have
actually modeled the legislation that governs that committee on
Alaska's statutory language; one other state may also have a
similar ethics committee consisting of both public and
legislative members. In response to a comment, she said that
the Select Committee on Legislative Ethics may have some further
suggestions forthcoming with regard to issues it would like to
see addressed in proposed combined ethics legislation. She
mentioned that in her part-time position as Ethics Committee
Administrator, she sometimes feels overwhelmed and overworked;
therefore, it would be nice to have a contract person on call to
help her with her duties.
MS. ANDERSON noted that one of the changes proposed via SB 187
pertains to the complaint process and confidentiality issues
raised during the handling of complaints, and said that those
sections of statute need clarification and/or a change in order.
She also offered her belief that the advisory opinion section
[of current statute and SB 187] needs clarification with regard
to the fact that even if confidentiality is not waived by the
person requesting the opinion, the opinion is eventually made
public but is cleansed of any identifying information; advisory
opinions are used as precedence and so must eventually be made
public.
CHAIR McGUIRE read a portion of proposed new language from
Section 6 of SB 187: "The opinion may not be released unless
all persons who are required to be provided with the opinion
consent in writing to the release of the opinion."
10:56:50 AM
MS. ANDERSON said she is not sure why that language is in the
bill, particularly since an advisory opinion is generally
requested by the person who is contemplating taking a specific
action, and thus would not concern any other person. She
pointed out that advisory opinions are formal and binding, and
can be used as precedent, whereas informal advice from the
Select Committee on Legislative Ethics cannot be used as such.
REPRESENTATIVE GARA said that Section 6 of SB 187 troubles him
because it proposes to expand the number of people who can keep
a complaint confidential.
MS. ANDERSON clarified, however, that Section 6 pertains to
advisory opinions, not complaints. In response to a further
question, she explained that the only one who can request an
advisory opinion is someone who is contemplating taking certain
actions; advisory opinion requests are not accepted from a
person who wants an opinion regarding actions another person is
taking or is contemplating taking. She said that in her
experience she has never encountered an advisory opinion request
that pertained to more than one individual - that individual
being the requestor. So, again, she is not sure why that
language is being included in the bill.
CHAIR McGUIRE surmised that releasing advisory opinions to the
public provides for consistency.
MS. ANDERSON characterized advisory opinions as educational
tools.
REPRESENTATIVE GRUENBERG asked whether the executive branch
currently has an ethics committee.
MS. ANDERSON said she didn't know.
REPRESENTATIVE GRUENBERG suggested that perhaps the House
Judiciary Standing Committee should consider establishing a
standing executive branch ethics committee that would be
adequately staffed and funded and contain public members.
11:06:19 AM
[Representative Wilson made comments that were indiscernible.]
REPRESENTATIVE GRUENBERG provided information regarding the
Commission on Judicial Conduct (CJC).
REPRESENTATIVE WILSON suggested that perhaps such a committee as
Representative Gruenberg is suggesting could simply share the
Select Committee on Legislative Ethics' staff.
REPRESENTATIVE GRUENBERG opined that the staff should not be
shared because the legislature and the executive branch each
have their own type of ethics issues that arise.
REPRESENTATIVE COGHILL noted that doing so could also raise a
separation of powers issue. He suggested that before attempting
to establish such a committee for the executive branch, it might
be good for the House Judiciary Standing Committee to learn what
the personnel board already does as a matter of practice.
CHAIR McGUIRE said she would follow up on that point.
REPRESENTATIVE GARA indicated that he would prefer not to pursue
the changes proposed via SB 187 and would instead prefer to
pursue changes that would address the issues arising from the
"Gregg Renkes matter" and do so quickly. He said he worries
that addressing several subjects will delay the process of
establishing a solution to the "Gregg Renkes issue." He offered
his understanding that currently, ownership of stock or of a
business that one's working on a matter of is only unethical if
one intends to benefit oneself or a friend though not if the
amount owned is insignificant. He opined that there should be
some dollar amount that defines what's considered insignificant.
REPRESENTATIVE GARA then referred to a proposed amendment, which
he said would pertain to legislative ethics [original
punctuation provided]:
Insert a new section in AS 24.60 to read:
Any person subject to this chapter who has a
consulting contract must detail what substantive work
the person is doing for the contract. These reports
should detail in increments no greater than one hour
what work was done on what specific issue. These
reports should be filed with Legislative Ethics every
30 days for the duration of the contract."
11:13:22 AM
REPRESENTATIVE GARA suggested that they should address
situations in which legislators consult for a company that has
interest in legislation before the legislature. This issue
could be addressed in a couple of ways, he remarked, one way
being to simply say a legislator can't accept a contract
consulting job regarding legislative issues, and the other way
being to simply require the legislator to disclose, in detail,
exactly what he/she is being paid for. He offered his
understanding that individuals who do consulting work on a
contract basis have to provide the companies/entities they work
for with detailed hourly billing anyway, and therefore requiring
legislators who do contract consulting to provide details about
what they're doing to earn their consulting fees won't create a
further burden. He reiterated that he wants to address the
issue of disclosure.
REPRESENTATIVE GARA referred to SB 187, and said that he didn't
think that people should be penalized for filing an ethics
complaint or speaking to one's spouse or neighbor about that
ethics complaint. He said he also didn't think that legislators
should be exempt from the provisions of the open meetings rules
and the ethics rules just because those rules might end up being
in conflict with any forthcoming Uniform Rules. He concluded by
saying that he thinks the committee should keep any forthcoming
committee bill on ethics focused on the issues of what
constitutes an ethics violation, what constitutes an
insignificant interest, and simplifying the [disclosure] filing
process.
CHAIR McGUIRE indicated that the committee and committee staff
would work during the remainder of the interim to come up with a
couple of committee substitute (CS) alternatives that will
address both the issues of executive branch ethics and
legislative branch ethics. She mentioned that she has asked for
information from the National Conference of State Legislatures
(NCSL) on these issues. She opined that ensuring that the
process is transparent to the public, and that lawmakers
understand what the rules and boundaries are, are important
issues. She asked members to provide committee staff with
suggestions for language, so that these issues can be addressed
at the beginning of session.
11:23:07 AM
REPRESENTATIVE GRUENBERG, in response to comments, noted that
the executive ethics Act contains a provision regarding "blind
trusts."
REPRESENTATIVE GARA, also in response to comments, recalled that
the House State Affairs Standing Committee, in discussing HB
194, expressed a preference for a $10,000 threshold, and offered
his understanding that the way a "blind trust" works is that
simply putting one's investments in a blind trust doesn't
alleviate potential conflict of interest issues, since not
knowing exactly how much one has invested in a particular
company or enterprise doesn't change the fact that one has an
interest in that company or enterprise.
CHAIR McGUIRE posed the questions of how they could determine
whether someone takes an action or doesn't take an action with
the intention of financially benefiting himself/herself or
another person, and of how a public official could invest in
certain stocks without being in fear of the consequences of
benefiting from that investment.
REPRESENTATIVE GARA opined that it should be permissible to
invest in a mutual fund and not directly into specific stocks,
but acknowledged that it might not be possible to pass a law
saying what stocks a public official can own.
REPRESENTATIVE COGHILL said such a law would trouble him
greatly, and reiterated his earlier comments regarding
transparency, disclosure, specific dollar amounts, and
accountability. He added that one should not be able to file a
false report of an ethics violation without being held
accountable, but opined that the language in SB 187 regarding
this type of potential slander is in the wrong place.
MS. ANDERSON remarked that statute already says it's a crime to
make a false accusation to the Select Committee on Legislative
Ethics.
CHAIR McGUIRE asked Ms. Anderson to provide the committee with
information regarding all the recourses - both criminal and
civil - one can take if he/she feels that someone has abused the
process.
MS. ANDERSON, in response to a question, acknowledged that much
of the recourse available is civil.
REPRESENTATIVE COGHILL pointed out that the conduct in a civil
matter and the conduct in a criminal matter are different.
11:33:47 AM
CHAIR McGUIRE suggested that perhaps they should authorize the
Select Committee on Legislative Ethics to exact a fine if it
feels that a complaint has been filed fraudulently or with
malice, and it would then be up to the Select Committee on
Legislative Ethics to decide whether its processes were being
used merely as a political tool/weapon.
REPRESENTATIVE GARA offered his understanding that one of the
provisions in SB 187 would punish someone for saying something
true about somebody, and characterized this as very different
from punishing someone for saying something false; he surmised
that this difference is what is causing legislators and members
of the Select Committee on Legislative Ethics to question that
provision.
CHAIR McGUIRE concurred.
[Representative Wilson made comments that were indiscernible.]
REPRESENTATIVE GRUENBERG warned that providing the Select
Committee on Legislative Ethics, or a committee like it, with
the authority to exact a substantial fine from someone could
raise constitutional issues regarding free speech and the
delegation of powers. In cases involving ethics violations, he
remarked, the Select Committee on Legislative Ethics should
focus on the merits of the case and not on the possible
underlying motivation of the person filing the complaint.
11:40:07 AM
REPRESENTATIVE COGHILL pointed out, however, that there are
situations in which the intent of filing a complaint is to
injure someone's character, and again reiterated that those who
file complaints for that reason should be held accountable. He
said he is concerned about good due process, and about the right
to face one's accuser, adding that he would prefer to address
this issue from the perspective of ensuring good due process.
REPRESENTATIVE GRUENBERG noted that the right to face one's
accuser applies in situations involving crimes against a person
and prosecution by the state; however, in administrative
hearings involving legislative ethics violations, it is the
public that is allegedly wronged and so the person filing the
complaint is doing it on behalf of the public which in turn is
represented in the persona of Select Committee on Legislative
Ethics staff.
REPRESENTATIVE COGHILL indicated that he still has concerns that
an ethics violation charge could discredit a person to the point
that he/she isn't ever able to pursue a [political] career
again.
REPRESENTATIVE ANDERSON said he wants people to feel that they
can call attention to violations, but he also feels that the
current system has been abused.
CHAIR McGUIRE referred to SB 187, and said that it is a
fundamental right for a citizen to be able to speak freely and
question the actions of elected officials, and that such should
be the first principal that's recognized - the right of Alaskan
citizens to question, openly, their government and the people
who make up the government. However, there should also be some
thought and care given to those that are accused. One solution
that she and others have discussed, she relayed, is that of
requiring those that file ethics complaints to swear under
penalty of perjury that the facts they are presenting are true
to their knowledge. Such a requirement would make the average
citizen take a long hard look at his/her actions. Perhaps, too,
a person filing a complaint could be required to disclose
whether he/she is working on behalf of a political party. This
would be disclosure similar to what some have suggested that
legislators do with regard to investments or contract consulting
work; simply disclose all the details and let the public decide.
REPRESENTATIVE ANDERSON mentioned that newspapers disclose
affiliation information about a person submitting letters to the
editor.
CHAIR McGUIRE offered her belief that the sponsor of SB 187 was
merely concerned that one shouldn't be able to use the Select
Committee on Legislative Ethics and its process as political
weapons, and suggested that perhaps the sponsor simply went a
little bit too far. The question of how shall the legislature
address the issue of the Select Committee on Legislative Ethics
being used as a political weapon still remains.
11:51:41 AM
REPRESENTATIVE GRUENBERG asked Ms. Anderson whether ethics
complaints are filed under oath.
MS. ANDERSON said that complaint forms are signed under oath and
they contain a statement that the person signing the form
believes the facts to be true. With regard to Representative
Coghill's concern, she relayed that according to both statute
and an attorney general's opinion, the subject of a complaint
does have the option of questioning the complainant, though the
legal opinion does put restrictions on what questions can be
asked. For example, the questions must pertain to the issue of
whether the person believes the facts to be true and why he/she
believes them to be true, and cannot be questions pertaining to
the possible motivations for filing the complainant.
MS. ANDERSON then relayed that she would be providing the
committee with a copy of the complaint form. In response to
further comments and questions, she pointed out that the Select
Committee on Legislative Ethics is prohibited from accepting
complaints during a campaign period, which is defined as the 90
days before an election.
CHAIR McGUIRE noted that those running for office often start
making campaign-type decisions well before the official campaign
period begins.
REPRESENTATIVE GRUENBERG predicted that if the issue becomes one
of determining what a complainant's motivations are, it could
result in problems.
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 11:56 a.m.
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