Legislature(1995 - 1996)
02/28/1995 04:30 PM House RLS
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
HOUSE RULES STANDING COMMITTEE
February 28, 1995
4:30 p.m.
MEMBERS PRESENT
Carl E. Moses, Chairman
Representative Con Bunde, Vice Chairman
Representative Al Vezey
Representative Bill Williams
Representative Jerry Mackie
Representative Gail Phillips
Representative Eileen MacLean
MEMBERS ABSENT
All members present
OTHER MEMBERS PRESENT
Representative Brian Porter
Representative David Finkelstein
COMMITTEE CALENDAR
To adopt the revised open meetings guidelines proposed by the
Select Committee on Legislative Ethics as published in the House
and Senate Joint Journal Supplement Number 9 on February 21, 1995.
WITNESS REGISTER
JOSEPH DONAHUE, Chairman
Select Committee on Legislative Ethics
P.O. Box 101468
Anchorage, Alaska 99510
POSITION STATEMENT: Answered questions regarding open meetings
guidelines
TERRY CRAMER, Attorney
Legislative Legal Services
Legislative Affairs Agency
130 Seward Street, Suite 409
Juneau, Alaska 99801-2105
POSITION STATEMENT: Answered questions regarding open meetings
guidelines
ACTION NARRATIVE
TAPE 95-3, SIDE A
Number 001
CHAIRMAN CARL E. MOSES called the House Rules Standing Committee to
order at 4:30 p.m. Members present at the call to order were
Representatives Moses, Bunde, Vezey, Mackie and MacLean.
Number 046
CHAIRMAN MOSES announced on the agenda is the proposed amendments
to the Open Meetings Act by the Select Committee on Legislative
Ethics. He informed the committee members earlier that afternoon
the Senate passed a committee substitute which has been distributed
to members. It affirms most, but not all, of the proposed
amendments. He announced that Joseph Donahue, Chairman, Select
Committee on Legislative Ethics, and Suzie Barnett, committee
staff, were listening via teleconference. Chairman Moses explained
committee members have received material from the Rules Committee
staff for review and said the topic is open for discussion.
Number 147
REPRESENTATIVE JERRY MACKIE said he had a problem with the
resolution that the Senate passed (SCR 8). The reason is because
he thought it was very clear in the statute, which was passed
relating to open meetings, that the Ethics Committee would submit
to the legislature, for approval or disapproval, a proposed set of
initial guidelines of which the Ethics Committee would use to
operate under. He explained there is nothing in the statute that
talks about whether or not the legislature can approve only parts
of the guidelines or disapprove some of them. Representative
Mackie stated, for the record, he has distributed to committee
members two legal opinions dated February 28. The first opinion
is addressed to himself and Representative Porter from Tam Cook,
Director, Legislative Legal Services, which describes what the
statute says and what the authority is that the Ethics Committee
has and some case history.
REPRESENTATIVE MACKIE explained the second legal opinion from Terry
Cramer, dated February 28, talks about three specific questions
which he had asked when he learned what the Senate action had done
to the guidelines. He noted he chaired the Ethics Subcommittee
that drafted the guidelines. When they were submitted, it was
brought to the subcommittee's attention that there were some
inadvertent errors or potential conflicts with the original version
that was drafted. Some were done by oversight, certainly not
intentionally. When the subcommittee realized that in consultation
with the Speaker and the Senate President, he requested that the
Ethics Committee revisit the issue and look at proposed changes in
order to clean up the language and to correct some of the
inadvertentness that had taken place. Representative Mackie
explained that was done as Chairman Donahue did call a special
Ethics Committee meeting and it was dealt with last week. Numerous
very constructive changes were made that were offered by the
chairman of the House Judiciary Committee. Those changes clarified
and corrected areas of concern that the committee had. Those were
adopted and public input was allowed. The corrections were
reviewed and then they were resubmitted. Representative Mackie
said it was his understanding that the Senate would act on it
February 27, and the House would act on March 1, which met the
statutory requirement that they be voted up or down within a 45 day
period of time. He said the House Speaker and the Senate President
have expedited those issues and brought them to the floor so that
the statutory requirement could be met.
Number 374
REPRESENTATIVE MACKIE explained what the Senate did with the
resolution came as a complete surprise to him because his
understanding was exactly what the statute says, that the
legislature would either approve or disapprove guidelines that were
being proposed. If the legislature chose to reject them, then the
process is laid out in statute for that. They would have to go
back to the Ethics Committee and, within 60 days, the Ethics
Committee would resubmit to the legislature a new proposed set of
guidelines, hopefully correcting areas which were determined to be
not acceptable by the legislature. Representative Mackie pointed
out that nowhere in the statute does it talk about approving part
of them and disapproving part of them. The legal opinion from
Terry Cramer confirmed what his suspicions were. He said the first
question he asked was under AS 24.60.037, which sites SLA 94, "May
the legislature approve some but not all open meeting guidelines."
In the opinion of counsel, who is also counsel to the Ethics
Committee and has been since its inception, the legislation which
was passed last year, does not give the legislature that authority.
The question remains, "What happens next?" Representative Mackie
said his concern is what do we do and where do we go from here. He
said he wanted to point out page 1 of the memorandum from Terry
Cramer deals with that.
REPRESENTATIVE MACKIE explained the second question he asked was
what would be the effect if both the House and Senate adopt the
Senate version. Would any portion of the guidelines be effective
or would all of the guidelines be effective. Representative Mackie
said the opinion says it is up to the committee to interpret what
that means. In a sense, it gives broader authority to the Ethics
Committee to interpret those things rather than taking some
sections, which were identified in the "Further Resolved" clause,
away from the legislature their ability to consider and receive
complaints about those things. Representative Mackie said it is
obvious that what they intended to do isn't what the net result is
going to be. It gives the legislature the ability to consider
complaints without any guidelines to go by.
REPRESENTATIVE MACKIE said one thing which was clearly pointed out
to him was that guidelines actually are used to for the protection
of legislators so they know what they can and can't do. Without
this, essentially, the Ethics Committee can make determinations
based on their own judgement, based on any individual case. He
said he doesn't believe that was the intention. The reason for
guidelines is so there is a guide to go by. It is new to everyone.
Certainly, everybody involved has been working together
cooperatively to bring these things to a vote.
Number 418
REPRESENTATIVE MACKIE said the third question is, "What is the
effect of the first `Further Resolved' clause on the jurisdiction
of the Ethics Committee?" He explained nowhere was the Ethics
Committee trying to change any Uniform Rules. These guidelines
were brought forth, clearly, under the statutory authority that was
given to the Ethics Committee. Representative Mackie indicated Ms.
Cramer's definition of the "Further Resolved" clause is in her
memorandum.
REPRESENTATIVE MACKIE explained he has a problem, from a legal
standpoint, as to what this all means now that the Senate has done
this.
Number 634
REPRESENTATIVE PORTER said having been on the Ethics Committee for
the previous two years and was involved in this development
process, he concurs with Representative Mackie's conclusion as to
the law. The bottom line of what Representative Mackie is saying
is that if the House passes the resolution that the Senate passed,
we would be passing something that is improper. He said he doesn't
know that it is illegal, but it probably would result in a decision
that we have, in his estimation, totally rejected the guidelines
which he thinks should be interpreted by the Ethics Committee as a
requirement for them to revisit and resubmit the 60 day cycle, as
the statute requires. Representative Porter said it may be
appropriate to ask Chairman Donahue if that is his interpretation.
Number 709
JOE DONAHUE, Chairman, Select Committee on Legislative Ethics, said
he believes Representative Porter's question was if he had any
comments on what the Select Committee on Legislative Ethics would
do if the guidelines were passed the way they are, in terms of
interpreting it as either rejecting the entire set of guidelines or
rejecting parts of them. Mr. Donahue explained he doesn't feel at
liberty until he consults with the committee to project what they
might do. He said the two options, as he sees it, would be to
either determine that the resolution is, in effect, rejecting the
(indisc.) Committee would have to submit new ones or that it was
deleting basically the section on meetings not otherwise described,
and the definition of political (indisc.) such as a non legislative
organizations, that go between (indisc.) meetings and that the rest
of the guidelines would be in effect. Those issues would be open
to further interpretation if someone filed a complaint with the
committee. Mr. Donahue said those are the two options that he
sees. He noted he did get a copy of CSSCR 8(RLS) and he was
somewhat surprised with it.
Number 804
REPRESENTATIVE PORTER asked Mr. Donahue if he would consider
possibly one of the options being to ask the committee to redraft
either those that were not affirmed or all of them, and resubmit as
the statute calls for, under the 60 day clause.
MR. DONAHUE said, "Yes." One of the options would be to consider
the passing of the resolution the way it is and rejection of the
guidelines as they were submitted, thereby requiring the Ethics
Committee to resubmit them. He said with these eight areas that
are pointed out, these are the ones that the Ethics Committee would
try to clarify. Mr. Donahue said he believes that is an option.
The other option would be to take the sense of the resolution and
determine somehow or another that the legislature would have
adopted the guidelines without both parts. He said in terms of the
aspects dealing with not conflicting (indisc.) to the Uniform Rules
or dealing consistently with the presiding offices of authority, he
isn't sure what was on the minds of the Senate when they passed
those two parts so he doesn't know how to interpret that.
Number 882
REPRESENTATIVE MACKIE said it is the opinion of Legislative Legal
that these questions can only be answered by the Ethics Committee.
His point is that we're giving a very broad scope of authority to
interpret what is meant. It was supposed to be that we would
either approve or disapprove. Representative Mackie explained that
there is three things that could happen. One, the Ethics Committee
could decide parts of the guidelines that were approved will take
effect and that will constitute initial guidelines. If they reach
that decision, the committee would then be able to amend the
initial guidelines and do what ever they wanted with them. A
second possibility is that the committee would decide that failure
of the legislature accept the entire package is total rejection.
He said that would be the story and he isn't sure that they would
want to have their name on because there has been a lot of work
that has gone into the guidelines. He said there has been a lot of
cooperation in the House, especially from the Speaker and
Representative Porter. Representative Mackie explained the last
possibility is the committee could decide that the legislature
lacked the power to offer amendments and make changes to them.
Essentially, the Ethics Committee could say that the legislature
didn't have the ability to do that. He noted he isn't at liberty
to say what the Ethics Committee would decide.
Number 972
REPRESENTATIVE MACKIE referred to the issue of what to do with the
resolution and suggested the House amend the it removing those
stipulations inserted by the Senate and approve the open meetings
guidelines so that the monkey isn't on the House's back. He said
this is not a patrician talking, this is a House versus a Senate
issue obviously. Representative Mackie said he doesn't know that
the House wants to go on record rejecting the guidelines if that is
what the Ethics Committee or the what the courts finally decide
what the action was. He said he is pretty sure there isn't an
effort in the House to find a back doorway to reject the
guidelines. He said that is an appeal to committee members to
consider that as an option. We are put in this position and not by
our own choosing.
Number 1034
REPRESENTATIVE AL VEZEY explained he shares the same concerns that
the Senate expressed in the resolution. He said he doesn't believe
it is a proper way to express them, but noted he might be wrong.
Representative Vezey said his suggestion is that this be done very
clean and simply reject the guidelines and pass a resolution
addressing what the concerns with the guidelines are.
Number 1083
REPRESENTATIVE EILEEN MACLEAN asked Representative Mackie to
explain what the number three "Further Resolve" clause is on
jurisdiction of the Ethics Committee.
REPRESENTATIVE MACKIE said he would like to forward that question
to Ms. Cramer as she wrote the opinion.
Number 1111
TERRY CRAMER, Attorney, Legislative Legal Services, Legislative
Affairs Agency, referred to question number three of her memorandum
and said she isn't sure what the affect would be. She said it
would be an issue that would be subject to interpretation, by the
committee, if a question in the form of a complaint or otherwise
ever arose. You get a situation where both the Uniform Rules and
the guidelines could be addressing the same topic. It is possible
that what this means and what the committee (indisc.) it means is
that when an issue had been raised concerning compliance with both
the Uniform Rules and the open meeting guidelines on the floor of
the body, and there had been a ruling by the presiding officer that
the interpretation, as to the Uniform Rules, would bind how the
Ethics Committee should interpret the open meetings guidelines,
which otherwise are the responsibility of the Ethics Committee.
She said she doesn't believe that is said entirely clear and she
doesn't know if the committee would reach that understanding of it.
Ms. Cramer said she believes maybe that is what it means. She
stated she doesn't know for sure.
Number 1206
REPRESENTATIVE GAIL PHILLIPS said if the House didn't act on March
1, would it nullify any action that might be taken at a later point
in time. She asked if the legislation which states it must be
brought to the floor within 45 days, is a hard and fast directive
on the legislature or is it something that can be held until there
is time to analyze and do more study on the Senate changes.
MS. CRAMER explained there are no consequences stated in the
legislation for failing to comply. She said she would assume that
if the legislature subsequently acted to either vote them up or
down, the committee would honor that subsequent action.
REPRESENTATIVE PHILLIPS said if the bill is amended, the 45 day
deadline will be missed. If an amendment is added, and it goes
back to the other body, they would have to have a special meeting.
She said she wouldn't expect them to do that. It wouldn't go
through the final process in 45 days.
REPRESENTATIVE MACKIE said he doesn't consider this a majority or
minority issue, but considers this an issue of complying with the
statute and voting to either adopt or reject proposed guidelines
that the Ethics Committee, in conjunction and cooperation with the
legislators, put together. It is not an avenue to only reject or
approve part of them. That is not something which was allowed for.
From that nonpartisan approach, he is concerned that we are all
going to be painted with the same brush. Representative Mackie
said if it is brought to the floor, and there recommendations to
reject them and they are sent back to the Ethics Committee, it will
become a partisan issue. He said he cannot vote to reject, in its
entirety, the guidelines. Representative Mackie said he can vote
to amend the resolution back to original version to approve or not
approve and send it back to the Senate.
Number 1347
CHAIRMAN MOSES said technically, the statue is very clear that the
legislature has 45 days to act. If you interpret it to the letter
of the law, not acting within 45 days is actually a rejection.
Number 1363
REPRESENTATIVE CON BUNDE said there are times when we feel
compelled to do something even if it's wrong. He said this is an
issue of where he certainly wouldn't counsel that the legislature
to just pass it on to get it over with. No matter what is done,
the 45 day limit won't be met. He said he isn't sure that should
affect deliberations. Representative Bunde said if the House
amends the bill, it needs to go back to the other body and it
wouldn't make the 45 day limit. He said he thinks that accepting
is the same as rejecting because he doesn't believe the committee
would accept the this as it is written. Representative Bunde said
as he reads it, it is very clear that it is all or nothing. It is
a choice whether they reject a flawed proposal or amend it. In
either case, they won't meet the limitation.
Number 1425
REPRESENTATIVE MACKIE said the Senate will be meeting tomorrow
after the House meets. He asked if tomorrow is actually the 45th
day. REPRESENTATIVE PHILLIPS said it is the 45th day.
Representative Mackie said if the House amended the resolution and
sent it back to the Senate, then they would have an option of
concurring with the amendments. If they did that, the 45 day rule
would be met. Representative Mackie said if the House amends the
bill and sends it back to Senate, the House would be meeting the
statutory requirements. The Senate may accept the House's
amendments or may they may not. If they don't accept the House's
amendments, then they are essentially rejected. The House has done
its job and complied with the statutory requirement. He suggested
that Representative Phillips may wish to consider this as an
option.
Number 1487
REPRESENTATIVE BUNDE said the point is well taken. He said he
wasn't assuming that this is probably the incentive to operate with
that kind of speed and dispatch, tho it is a possibility.
REPRESENTATIVE PORTER referred to where are we and where are we
going and said where we are is that there is no way that the House
of Representatives can, in a timely fashion, confirm the guidelines
so that they would go into effect. The Senate has already decided
that we can't do that because of whatever they did. It was not
acceptance of the guidelines. Representative Porter said given the
60 day requirement where the Ethics Committee has to try to produce
a recycled version, if the House Rules Committee and the House
passed a resolution which was in some way different, the result is
a requirement that a conference committee be appointed to try to
resolve whatever their position is so that the legislature could
affirmatively give something to the Ethics Committee to work with.
Number 1569
REPRESENTATIVE MACKIE explained the only reason there would need to
be a conference committee is if they failed to agree with the
House's amendments. If the House amends the bill, passes something
that affirms the guidelines and sends it back to the Senate, and if
the Senate chooses to not accept the House's version, that is their
problem. The House has done its job. Representative Mackie said
his main concern is that the House should do it right.
Number 1628
REPRESENTATIVE MACLEAN said she agrees with Representative Porter
and Representative Mackie and said the committee should follow
their recommendations and it should be nonpartisan.
Number 1649
REPRESENTATIVE FINKELSTEIN stated he also agrees with
Representative Porter and Representative Mackie. He said he didn't
believe members should be overly concerned with the 45 day deadline
as the action of the legislature which would matter would be an
action, based on Ms. Cramer's memorandum, is a resolution to
confirm the guidelines. No matter when that resolution was passed,
it would still be effected. Representative Finkelstein said
Representative Porter's point is very important in that if it comes
to a conference committee, that is the most appropriate thing as
there is confusion. He explained he believes there is confusion
within the Senate as he doesn't think they understand what the
guidelines do. Representative Finkelstein said he believes the
guidelines are extremely reasonable. Legislators were involved in
the drafting. He said the Senate also misunderstands that the
legislature has to approve, up or down, the whole batch instead of
what they have chosen. They also misunderstand the effect of their
resolution. If it was to be adopted and the provisions weren't
included in the guidelines, it would essentially would be non
sensible.
Number 1717
REPRESENTATIVE BUNDE moved to amend CSSCR 8(RLS), on page 1, line
11, replace the word "affirm" with "approve" and follow that word
with a period and delete the remaining language.
MS. CRAMER suggested the committee might want to consider amending
the title because it says "Approving in part..."
CHAIRMAN MOSES suggested going back to the original version.
MS. CRAMER said that result would be reached.
Number 1782
REPRESENTATIVE BUNDE withdrew his motion and moved that the House
Rules Committee adopt SCR 8, the original resolution.
CHAIRMAN MOSES asked if it was in lieu of the committee substitute.
REPRESENTATIVE BUNDE agreed.
REPRESENTATIVE MACKIE said if that happens, then the bill would
become a House Rules committee substitute. He said he is in favor
of the motion.
Number 1815
There being no discussion on the motion, CHAIRMAN MOSES asked for
a roll call vote. Representatives Moses, Bunde, Phillips,
Williams, Mackie and MacLean all voted in favor of the motion.
Representative Vezey voted against the motion. The committee
substitute was adopted.
Number 1873
There being no further business to come before the House Rules
Committee, CHAIRMAN MOSES adjourned the meeting at 5:10 p.m.
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