Legislature(1997 - 1998)
01/31/1997 06:03 PM House RLS
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE RULES STANDING COMMITTEE
January 31, 1997
6:03 p.m.
MEMBERS PRESENT
Representative Pete Kott, Chairman
Representative Gail Phillips
Representative Al Vezey
Representative Kim Elton
Representative Brian Porter
Representative Bill Williams
Representative Irene Nicholia
MEMBERS ABSENT
All members present
OTHER HOUSE MEMBERS PRESENT
Representative Jerry Sanders
Representative Joe Green
Representative John Cowdery
COMMITTEE CALENDAR
Continuation of January 29, 1997, meeting:
Select Committee on Legislation Ethics
Decision H 96-02
WITNESS REGISTER
PATRICK M. RODEY, Attorney
733 West Fourth Avenue, Suite 206
Anchorage, Alaska 99501
Telephone: (907) 279-8657
POSITION STATEMENT: Presented historical background on
drafting of the Alaska ethics statutes
ACTION NARRATIVE
TAPE 97-5, SIDE A
Number 016
CHAIRMAN PETE KOTT called the House Rules Standing Committee
meeting back to order at 6:03 p.m. All members were present.
CHAIRMAN PETE KOTT: Are we ready? Okay. We'll call the House
Rules Committee to order at 6:03 p.m. on Friday, the last day of
January. It's the 31st for those who are keeping track. We will
continue the hearing on the ethics charges against Representative
Sanders and it is my intent this evening to call one final witness
at which point we will then enter into debate concerning what we
have heard over the last three days. Based on the hearing this
evening and the discussion between the committee members I will
then direct my staff to construct comments on a draft proposal that
will be before the committee during the next stage. It's - it's my
intent to have something hard copy for you to look at based on the
discussions that occur this evening, so that at that point then we
can recommend to the House, based on what we have before us, our
particular matter. Representative Nicholia.
Number 132
REPRESENTATIVE IRENE NICHOLIA: Now is this, the proposal that
you're talking about, is this a proposal that is gonna to come in
front of us, that if we -- if it's a proposal that fits this
hearing and that will be the proposal that will go to the floor.
Is that what you're saying?
CHAIRMAN KOTT: That's correct. Again, based on -- when we entered
the discussion on this matter, I'll again direct my staff to
reconstruct the major issues that were identified during the
discussion. They'll be listed and at that point you'll have those
draft recommendations, or issues, or ideas before you, at which
point then we will go through em on an individual basis and come up
with a consensus on what should be then provided to the full House.
At this point, we don't have anything before us and at some point
we'll have to have a draft proposal as per the - the statute.
Representative Elton.
Number 216
REPRESENTATIVE KIM ELTON: Thanks Mr. Chair. I mean I -- we
probably will need to get into debate and if you would prefer
having this debate at some other point I'd - I mean I'd appreciate
that and I wouldn't object, but - but I guess my understanding is
that what we have before us in this committee is H96-02.
CHAIRMAN KOTT: That's correct.
REPRESENTATIVE ELTON: And at some point we're going to have to
dispose of - of that if you want to get a new draft or a new
proposal. Is that correct?
CHAIRMAN KOTT: I think we will still have H96-02 before us during
the next hearing, but we will also have a summary of the dialogue
that took place this evening so that you will be able to read and
understand the issues as well as some of the comments regarding
this particular case. At that point, then as a committee, we're
gonna have to develop a consensus on our findings and any
recommendations. It's like any committee process, you're going to
have to have something before us in the form of a hard copy before
we can really look at it and understand it. I would feel very
uncomfortable drawing a conclusion in my recommendations and
forwarding that to the full House without at least bringing in a
consensus among the committee members. In order to do that, we're
gonna to have to have a hard copy and, again, I will reconstruct
all the issues and we'll just go through em one by one because I'm
sure everyone has several comments.
Number 342
REPRESENTATIVE ELTON: Probably, I - I don't -- I think I need to
see by example, so I'll just wait. I appreciate your trying to
clear this up for me, Mr. Chair, and I'll wait till we get to that
point.
REPRESENTATIVE KOTT: Okay, thank you. During -- when this matter
was referred to House Rules, I received a call from Mr. Rodey, that
was last weekend, who indicated that perhaps he could share or shed
some light on some of the issues that we were facing. I told him
at that point in time that I would consider it. Based on the
testimony that we've heard with some of the issues, especially some
of the definitions that may be forthcoming, I saw that perhaps it
would be an opportunity - an opportunity to hear from him based on
his background in legislative ethics. I believe he was involved,
at least in some respects, to the drafting of the current ethics
code. I called him last night and he flew down this morning for
this particular hearing and that's the reason why I've invited him
down here to share some information or shed some light on the
matter. So at this time I would like to call Mr. Rodey to the
stand and if you would repeat after me as we have done with all
previous witnesses. Raise your right hand please, "Do you solemnly
swear to tell the whole truth, tell the truth, the whole truth,
nothing but the truth, about the information you're about to give
the committee so help you God."
PATRICK M. RODEY, ATTORNEY: I do.
CHAIRMAN KOTT: Thank you. Please state your name and affiliation
for the record and also would you comment briefly on your - your
background or experience.
Number 478
MR. RODEY: Yes, (indisc.) please the chair, my name is Patrick
Rodey, I'm an attorney, I have served 18 years in the state Senate,
all of those on the Judiciary Committee. I have been involved in
the drafting of all of the ethics laws that we have passed since
the first one in the 1978, I believe it was and was involved in the
drafting of the statute that you have before you today in my last
year in the Senate. I am a Democrat and served as a Democratic
senator for those 18 years and also served on the Ethics Committee
that was previously the Legislative Ethics Committee before it was
changed by the legislation which you have before you. Let me
comment briefly on the legislation that you have before you. There
was a great deal of difficulty in arriving at a final version.
Difficulty didn't involve a section of the statute cited by the
Ethics Committee in the - in the present case before you, but the
statute was put together piece mealed -- the -- a brief look at the
bill, the number of places that the bill went and the things that
were involved in the drafting of the bill leads you to the
conclusion that it was a - a piece of legislation that no one knew
quite what to do with. It was a product of the Special Committee
on Legislative Ethics that was chaired by Senator Collins. I spent
a lot of time working with Senator Collins on this and the - the
basic problem with the statute and I'm the first to admit as I did
then that it was put together piece meal. As a consequence, there
are a number of deficiencies in it, some of those which will affect
the case before you. For example, the question of the use of
office accounts was - was not...
CHAIRMAN KOTT: Excuse me, Representative Elton.
Number 643
REPRESENTATIVE ELTON: A point of information. I don't know where
we're going here and I'm - I'm - I'm not sure I necessarily want to
know where we're going, but are there going to be other witnesses?
A couple of questions maybe so we can establish the bonafidies (ph)
here and I - I guess I was under the impression that Senator Rodey
left the legislature prior to this 1992 statute and so I'm confused
here as to timing, when you say that you participated in the
drafting of all the legislative....
Number 680
MR. RODEY: I left, I left in `92, the statute was draft in `92 and
was -- became effective in `93.
REPRESENTATIVE ELTON: Mr. Chair, I may be confused. I thought
that this statute was - was drafted and sponsored by Representative
David Finkelstein and - and I'm confused on timing a little bit
here.
CHAIRMAN KOTT: I believe that bill that Representative Finkelstein
drafted was the - the second bill, was a revision of the
existing...
REPRESENTATIVE ELTON: Okay, well...
CHAIRMAN KOTT: ...that I think includes the same, primarily the
same language.
Number 728
REPRESENTATIVE ELTON: Mr. Chair, if you will indulge me again, I
guess I'd request a ruling from the Chair. I mean I'm not sure
that what we're embarking on here is even properly before the
committee. I mean we announced a public -- a series of public
hearings. You've gone into recess instead of adjourning this, but
- but what we announced to the public that we would be hearing is
H96-02. I have a real concern that what we're doing is we're now
complete -- we're broadening this whole exercise here into
something that was not publicly noticed and that is not properly
before this committee. This committee should be dealing with H96-
02, not - not with finding out what the problem with the statutes
is.
REPRESENTATIVE KOTT: I agree with ya and I believe that Mr. Rodey,
at least in my discussion with him, will offer some insight on some
of the issues that are questionable in H96-02, primarily in the
definitional areas regarding for instance, not what is
nongovernmental versus governmental. I mean that I think is one of
the main issues that came up over and over. We addressed it with
the Ethics Committee, we addressed it with Representative Sanders
and no one has seemed to come to grips with what does it really
mean or what should it mean and I think at this point that perhaps
Mr. Rodey can at least give us some background because I've looked
through various aspects of law and I have looked at the ethics
bills in the past and no where have I found the word
nongovernmental mentioned, so I think it's important that if he has
that information that it would benefit the committee. That's the
sole purpose here, we're not expanding the scope in any way by
inviting another witness in as I mentioned at the very beginning of
the proceedings. Mr. Rodey please do stick to the - the
definitional areas that would be of assistance.
Number 865
MR. RODEY: The questions that have been raised are one of - of -
office, office accounts in the existing statute that was - was --
it was not dealt with, you know, sufficiently. It was, for
whatever reason as it went through the process, not - not set - set
forth in the separate fashion that it should have been. And the
concern was in other areas and there was just the general
assumption that the office accounts were taken -- used by the
members for the purposes of their legislative duties. Secondly,
the term "governmental purpose" was for the first time used,
previously legislative purpose or some synonym to that and I did do
a quick computer search and there is no governmental purpose that
has shown - ever shown up previously and that was one of the - one
of the concerns. The word - the word "nominal" is a drafting
phrase by the - the drafters. I know that's a question that the
committee is concerned about. And the discussion there was
centered around a floor where diminimous (ph) matters, that is,
using the legal phrase diminimous lacks the -- the law does not
take trifles, those things that are very, you know, very minor
would not be an item that someone could either use or would be much
like APOC, the cause for taking up a great deal of the committee's
time. The - the - the mailing list language in the - in the bill,
and I don't recall at this time where the exact origin of that, but
it's - it's unworkable language and the...
REPRESENTATIVE BRIAN PORTER: Which - which language did you
mention?
MR. RODEY: The - the mailing list language. The - the
governmental - the governmental mailing list language because -- in
the statute.
REPRESENTATIVE PORTER: Mass mailing?
MR. RODEY: You know it talks about governmental mailing -
governmental mailing list.
REPRESENTATIVE PORTER: Do you got a reference?
MR. RODEY: Under Standards of Conduct, it talks about the use of
mailing lists, computer data or other information in Section
24.60.030 of mailing lists lawfully obtained from a government
agency and available to the general public for nongovernmental
purposes. The - the fact of the matter is that most mailing lists,
if not all, or the vast majority are from private sources and that
wasn't - that wasn't dealt with. A small portion come from, for
example, even the governmental sources come from private
enterprises that are involved in this, for example, the computer
companies that sell lists of people who have hunting and fishing
licenses et cetera. And that, you know, in retrospect, that was
was not - not addressed in the fashion that it should have. The --
there were - there were some questions raised that weren't dealt
with at the time the procedure was established for the - the new
Ethics Committee, previously had been strictly Legislative Ethics
Committee, the constitutional question of the requirement that a
person be require to do certain things or there would be a penalty
when charges brought against them has some constitutional problems.
The...
Number 1139
CHAIRMAN KOTT: Was that - was that issue addressed in the findings
or -- of the Ethics Committee that we are referring to there? Can
you reference...
MR. RODEY: The question was - was discussed at one point and,
however, it went through so many different committees and processes
and amendments that, again, putting together a bill in a piece meal
fashion does not provide for a very tight and coherent piece of
legislation and that - that is certainly one of the problems of the
-- the final decisions were made as, in many cases, at the end of
the session and the - the procedures that should have been outlined
to provide the Ethics Committee with more guidance and the
individual subject at Ethics Committee were - were not - were not
addressed and that was - that was something that was a concern in
the Senate Judiciary Committee and was as many things happen not in
my opinion done as carefully as it should with the rights and
responsibilities spelled out as clearly as they should. Through
the Chair, I'd be happy to answer any questions. I think I've
dealt with the gravamen of the issues and the case before you and,
through the chair to Mr. Elton, I -- it's not my intent to give the
discourse on the entire bill, but deal only with those points in
contention.
Number 1234
CHAIRMAN KOTT: Well as you are probably aware of after spending so
much time in the legislature you find often times that legislation
is put together piece meal and, in many cases, it's done correctly
and appropriately without near the problems that there appears to
be with some of the language in this particular matter. Questions
for Mr. Rodey? Representative Elton.
REPRESENTATIVE ELTON: Thanks. Through the Chair, Mr. Rodey, you
indicated that you drafted the law that we're now -- that the
Ethics Committee is now...
MR. RODEY: I didn't draft it solely of course, I was one of those
persons that did work on the drafting and did meet with Senator
Collins over a period. Then, in addition to those meetings as the
Vice-Chairman of the Senate (indisc.--coughing) worked on it at
that juncture as well.
REPRESENTATIVE ELTON: Through the Chair, are you being paid for
your assistance to the committee now?
MR. RODEY: At this point, that question hasn't arisen.
Number 1311
REPRESENTATIVE ELTON: I guess the one question I've got, and we
can go back to other members, but it seems to me that the evolution
of the ethics statute, the evolution has always been to add more
public members. The first - the first Ethics Committee had one
public member, the second generation had an equal number of
legislators and (indisc.) the last generation - generation that
we're discussing now has more public members than legislators. Can
you tell us why that evolution has occurred?
MR. RODEY: I don't think that it would be appropriate to - to - to
comment on it other than to state that certainly there's been
increasing concern with -- by the legislature with, you know, it's
own conduct and there has been attempts and very approaches have
been looked at and discarded. That has been - been one approach,
you know, that has been considered. There....
REPRESENTATIVE ELTON: Thanks Mr. Chair.
Number 1379
CHAIRMAN KOTT: Just for the record, House Bill 4, which I believe
was Representative Finkelstein's bill, was rolled in to Senate Bill
185. Further questions for Mr. Rodey? Speaker Phillips.
REPRESENTATIVE GAIL PHILLIPS: Thank you Mr. Chairman. Mr. Rodey,
in looking at the term "governmental purposes" the -- and looking
at this particular case, the Ethics Committee came up with the
language "legislative purposes," they didn't use the word
"governmental purposes" which is in the statute. Did you (indisc.-
-coughing) in your -- in the time that you debated this in Senate
Judiciary Committee did you look at the difference between
legislative purposes, nongovernmental purposes, governmental
purposes, public purposes. Did you look or have a discourse on
that whole issue and keeping in mind again that the statute before
us only refers to nongovernmental purposes. It does not refer to
legislative purposes.
Number 1432
MR. RODEY: No, there was not in the Senate extensive - extensive
discussions on that. It was - it was felt that the parameters were
well established, in fact the work draft copy by the - by the
Senate Special Committee on Ethics stated it fairly clearly and it
said, and I'll quote, "This section does not prohibit customary
constituent contacts by a legislator including newsletters or other
constituent correspondence that expresses - expressed the
legislator's opinions or views on issue before the legislature or
that describing the legislator's votes, legislative proposals or
other legislative actions." That was the version that the Senate
dealt with. We felt comfortable that that was clear enough to
provide some guidance, sufficient guidance to the legislator and to
the Ethics Committee. And the final draft did not - did not end up
that way and as a consequence the difficultly of the insertion of
a new phrase that had never before been in ethics legislation was
inserted in, which gives rise to the problem that the Speaker
refers to. And I quite frankly can't tell you, and I don't know
how many can, what - what the difference is and the - the - the
problem is that you're running very close to a constitutional
problem of being void for vagueness. And the section that I just
read you is much clearer than the final statute I believe.
CHAIRMAN KOTT: Representative Vezey.
Number 1534
REPRESENTATIVE AL VEZEY: Thank you Mr. Chairman. Mr. Rodey, just
-- I'm probably straying just a little bit, but getting back to the
Constitution, Article 2, Section 12, I think that says that each
house shall be the judge of its own members. As an attorney,
didn't working on a bill that would set standards for conduct
within the legislature and would be, I suppose interpreting the
Constitution, did not that trouble you?
MR. RODEY: Yes. I expressed my concerns and it was -- wouldn't -
wouldn't have been the first time that the expression of my
concerns was not the order of the day and....
REPRESENTATIVE VEZEY: I've had that experience once or twice.
If I -- you know I have trouble -- and I appreciate your comments
and I did follow this legislation and it was kind of interesting to
hear your perspective versus what I was able to read in various
publications, et cetera, but is it appropriate that the Seventeenth
Legislature would stand in judgment of the conduct of a member of
the Twentieth Legislature?
MR. RODEY: No legislature can bind another legislature and
certainly that the Twentieth is not - is not bound by previous
action of the legislature. Unfortunately, when matters are
incorporated in the statutes that sometimes happens to be the case
and you have a conflict between the - the law and especially in
this case when you're dealing with an internal matter that the
supreme court has (indisc.) said is the province of this house and
that is in effect what is happening.
Number 1642
REPRESENTATIVE VEZEY: If you'll indulge me Mr. Chairman, that's
kind of where I am really at is that we're dealing with a statute,
but is it fair to call it a law. The court admits it has no
jurisdiction over the conduct of the legislature. The
Administration does not -- the Executive Branch does not administer
this. What we have is a - is a rule of the legislature put into
statute. Does that prohibit a future legislature from changing it
and does, from a constitutional viewpoint, does it require the
governor to endorse a rule change of the legislature?
MR. RODEY: I believe it's -- you've expressed the obligation that
the people of Alaska place upon you and that is to correct those
things in the statutes and elsewhere that you believe are incorrect
or inappropriate and, in fact, that - that is - that's the way our
country has, you know, has prospered is by correcting past mistakes
and by having successive legislatures and congresses, you know,
look at bills and this was - was a new approach and I don't think
any member of the Seventeen Legislature would - would say that it
is a fine polished product. And having been involved and part of
being aware of some of the flaws, my only comment is that I regret
that it falls upon you to correct some of the work that has been
done in the past that appears to be flawed.
REPRESENTATIVE VEZEY: Well thank you. I appreciate your comments.
I was really just curious what your thoughts were.
CHAIRMAN KOTT: We did stray a little bit, far off course.
Number 1744
REPRESENTATIVE ELTON: To follow up on Representative Vezey's
question, which I find it an intriguing question. Is it your
testimony that the Seventeenth Legislature is binding the Twentieth
Legislature when this body has the ability to accept or reject any
sanction recommended by the Ethics Committee.
MR. RODEY: No sir, I would - would never make that assertion. My
reference was only to the fact that by enacting a statute the - a
previous legislature does in a fashion of course influence conduct.
REPRESENTATIVE ELTON: So, let me make sure I'm - I'm especially
clear on this point because I think it's a very important point.
You're not saying that there is a possible constitutional conflict
because this legislature, this body, in this house of this
legislature is bound by the Seventeenth Legislature's enactment of
this ethics statute?
MR. RODEY: I do not believe there is, no.
REPRESENTATIVE ELTON: Thank you.
CHAIRMAN KOTT: Further questions for Mr. Rodey? Speaker Phillips.
Number 1790
REPRESENTATIVE PHILLIPS: Thank you Mr. Chairman. Mr. Rodey, I
want to get back to your statements on the issue of mailing list
and that subject specifically. Now you're saying that the word --
that there is no language in the statutes or definition in the
statutes for the phrase "mailing list." That is not something that
can be classified as a government entity, a nongovernment entity.
Can you get into a little more discussion on that please?
MR. RODEY: I'm at a loss to - to determine precisely when that
phrase was - was inserted and I will - I will be able to tell you
once the archives provide the committee reports. Hopefully, it was
in all probability the product of a conceptual amendment that was
then drafted by Legislative Council and it was -- there's many
(indisc.) in that, which does happen because everyone in this
committee knows that the way mailing lists are handled is not the
way it's set out in the statute. That the (indisc.--coughing)
statute really does - does not provide a correct statement of the
facts and doesn't provide proper guidance for a legislator or for
the public.
REPRESENTATIVE PHILLIPS: Thank you.
CHAIRMAN KOTT: Further questions? Representative Elton.
Number 1867
REPRESENTATIVE ELTON: Thanks Mr. Chair, and through the Chair, Mr.
Rodey, I -- while we have you here I think maybe we should take
advantage of your expertise and I don't have the statutes in front
of me, but I'd like to refer to you AS 24.60.030, subparagraph (b),
which talks about proscribed political activities. Perhaps you
could discuss the legislative history on - on what the Seventeenth
legislature made may have meant of subparagraph.
CHAIRMAN KOTT: Representative Elton would you cite the a...
REPRESENTATIVE ELTON: 24.60.030, and I think it -- I don't have it
in front of me, but I think it's subparagraph (b).
MR. RODEY: ...b, there, you're talking about the - the exception
where it says "this paragraph does not prohibit" and then goes on
to...
REPRESENTATIVE ELTON: No. I'm talking about -- I'm talking about
the subparagraph that - that - that - that - that says the
legislative staff are not allowed to engage in political activities
and legislators are - are not allowed to require their staff....
REPRESENTATIVE BRIAN PORTER: Yeah, it's the -- do you want me to
read it?
REPRESENTATIVE ELTON: That would be helpful to me.
REPRESENTATIVE PORTER: "A legislative employee may not on
government time assist in political party or candidate activities,
campaigning, or fund raising. A legislator may not require an
employee to perform an act in violation of this subsection."
Number 1936
REPRESENTATIVE ELTON: The question again, through the chair, was
perhaps you could clarify what the legislative history of that
section was.
REPRESENTATIVE PHILLIPS: Mr. Chairman, before Mr. Rodey answers
that I would like to raise a point of order on that in that just
for the record Representative Elton, that has nothing to do with
the - with the - the - the issue before us which is the case
against Representative Sanders. I'm not going to - to disallow it,
whatsoever, but this is the second time your comments have been
brought up that are not in reference to the case in front of us,
just as a matter of point of record.
REPRESENTATIVE ELTON: If I could speak to the point of order. I
mean I think when we try to define "nongovernment" and "political,"
we need to - we need to take a look at other portions of the
statute that use similar language, but I appreciate your not
pursuing it Speaker Phillips.
Number 1974
MR. RODEY: Very briefly, the - the discussion of Senate Judiciary
was the members - the members were aware of what improper conduct
was and they were - were also aware that a very small item would
occur, many times by accident, in fact most times by accident, some
postage or some - some use that is diminimous and the - the
(indisc.--coughing) was to define the difference between an ethical
violation of substance and one that - that was, you know, a very
very minor violation and one that, you know, had no - no great
impact to it and that -- and I read you the - the language that was
in the Senate bill and that - that was the Senate's - the Senate's
approach which I think fairly, you know, fairly states the - the
difference, what a legislator can do. It sets forth how they can
contact their constituents and it leaves nothing to guess work.
REPRESENTATIVE ELTON: Thank you Mr. Chairman.
Number 2044
CHAIRMAN KOTT: Further questions for Mr. Rodey. Seeing none,
thank you very much for your testimony.
MR. RODEY: Thank you Mr. Chairman.
CHAIRMAN KOTT: Representative Porter.
Number 2053
REPRESENTATIVE PORTER: Is this the portion, Mr. Chairman, that you
would us to kind of to give our individual thoughts about where we
are and what we're faced with or....
CHAIRMAN KOTT: I think at this point, that's where we're - where
we are at in the process. We have no one else to come before this
committee to offer anything else. It is up to the committee now to
look at the last night's testimony and come up with a conclusion of
findings, statement of fact and recommendations. So we will now
open the committee up for testimony regarding the ethics charges
96-02. Representative Porter.
REPRESENTATIVE PORTER: Well I don't mind being the fool that
rushes in. It would appear to me that there are two general issues
in front of the committee. Obviously what's in front of the
committee is our acceptance, rejectance (ph) or modification of the
sanctions which requires, I think, to look back at the charges and
so we have, I guess, in front of us a requirement to give our
assessment of the charges, the merits of the charges and then
probably the next one in my mind is the cooperation issue of
Representative Sanders with the Ethics Committee. And quite
frankly, these two things present to me, having some familiarity
with the statute, having been on the committee for two years, a bit
of a dilemma. I guess the oversimplification of my position on
this is that I can understand having been in their shoes the
progression of logic as opposed to case law that lead to the
decision that these charges have merit and that the interpretations
that they furnish in their opinion are a natural, logical
interpretation of the statute. Unfortunately, I disagree with
every one of them. Had I been on the committee, I would have
argued vehemently against each and every one of the positions that
they took on interpreting those statutes. On the other hand, we
have the statutory requirement, and I think it was mentioned during
testimony either yesterday or the day before that isn't it unusual
to be considering a, in this case, legislator's cooperation with
the process when the normal kind of litigation experiences that,
that's the way it works to be extraporous (ph) and delaying and
those kinds of things. It does if you're in a court of law,
especially in a criminal case. Obviously, the court cannot
consider the cooperation of a defendant. It isn't within his
requirement to have to cooperate, but in our situation the statute
that we are faced with specifically directs the Ethics Committee
and I think then by implication to us to consider the cooperation
of employees and anyone charged under this specific piece of
legislation. And in that case then having listened to
Representative Sanders, I sincerely wished that he would have put
his concerns in front of that committee because I think it would
have mitigated completely, if for not completely, perhaps, but
mitigated substantially the ultimate decisions and recommendations
of the committee. So while I understand how the Representative
facing the facts that he explained to us from his perception of
those facts, having a concern as I can't agree with the committee's
opinion of their interpretation of the statute, I can't agree with
his logic and inferring from those facts that he was up against a
stacked deck. So I guess I could speak more to those issues and
explain, if anybody is interested, why I don't think these charges
amount to what they have concluded. But that's basically where I'm
at and if anybody can help me with it, I'd be happy.
Number 2264
CHAIRMAN KOTT: I think you basically have started the process
rolling in addressing some of the issues that have been brought up
over the last couple of days regarding the charges, the alleged
charges. Certainly, I think the main core of much the discussion
that has taken over the last 48 hours or so was whether or not this
mailing was for a governmental or nongovernmental purpose. I think
that maybe a good point to essentially start and I think that's the
direction you were perhaps heading. Representative Vezey.
REPRESENTATIVE VEZEY: Thank you Mr. Chairman. I will repeat a lot
of things that Representative Porter said. I would just say that
I really concur with - with his summary. I - I think that the
Ethics Committee used reasoning and good logic to come up with a
logical conclusion based on the information before them. I think
it's very regrettable that we have not given them better guidelines
that would enable them to have gotten to a similar point without
spending $24,000. I think they exercised much too much due
process. I disagree with their - their conclusions for numerous
reasons, I think I stated most of them yesterday and Representative
Porter stated them very well a few minutes ago. But I do think
that it's not actually before us, but I do think that
Representative Sanders was very much amiss, remiss in not
cooperating, maybe not fully, but to a much greater extent than he
did with the committee. It -- had more information been brought
before the committee, it's very likely we would not be here today.
TAPE 97-5, SIDE B
Number 006
REPRESENTATIVE PHILLIPS: Thank you, Mr. Chairman. I'm going to
pass something out to everybody that I think kind of gets to the
crux of what we are dealing with here, and this is the definition
of what is governmental and nongovernmental. And this is a copy of
House Bill 298, dated 4/24/91, in which a group of legislators
authored an act establishing a president - presidential primary
polling election.
Number 028
CHAIRMAN KOTT: And for the record, would you label this Exhibit F.
Number 032
REPRESENTATIVE PHILLIPS: Be glad to provide a copy for you guys.
But in getting to the definition of whether or not a thank you
letter for somebody (indisc.) - a thank you letter to constituents
that have presided in and taken part of a presidential poll being
not a government issue, and yet a legislative bill introduced in
1991, which was very clearly a governmental issue, very, very
clearly. If you will look at the sponsorship of this bill, it was
sponsored by Republicans and Democrats both. They felt a
presidential primary poll election was a very proper governmental
thing to do. And I think that begs the whole question of what
we're dealing with today. This group of legislators felt very
strongly, and I am proud to say I am one of the sponsors of this
piece, with my fellow Democrat people that also sponsored it.
Representative Ulmer at the time, our lieutenant governor, was the
chief sponsor of this bill, thinking that this was a very - very
definitely something that the legislature could do. So I think
when we look at -- was this issue wrong? The issue of thanking
constituents for taking part in a presidential primary poll? I
don't know. I certainly didn't think it was wrong when my name
went on as a cosponsor on this bill.
CHAIRMAN KOTT: Representative Elton?
Number 090
REPRESENTATIVE ELTON: Thanks, Mr. Chair. It's sometimes
difficult, I think, to reconstruct arguments that we think may have
happened behind closed doors. And - and - and I don't purport to
do this. I think it's also sometimes difficult if we look back and
think about all the dumb things we've done and I mean, what happens
to us when we do something dumb? And - and - and I think there's
an element of dumbness here and please, it's not -- I'm not
speaking about one of us. I mean I think I'm speaking about
probably a body of 60 in which we've all done something dumb. I
want to begin by saying that I think that the difference, perhaps,
in my mind, that between - between this and - and a letter that
thanks participants in a Republican straw poll, is I would - I
would define legislation that is put before either body that
creates a presidential primary an issue of legislative business.
And - and I guess that -- and I feel awkward trying to make an
argument for another body, for the Legislative Ethics Committee.
But I think that the argument that they may have made is that this
was before the body, was being debated in committees of the body,
and got to the floor of the body, and that makes it an issue of
public interest and public importance. I think what the committee
found in the instance that's before us is that there was a
political activity that happened outside the body and - and that a
- an issue that - that they -- I -- they may have even used this
term of kind of party-building, and - and - and I think there is a
difference between government (indisc. -- coughing) issues. I
don't think, for example, that I would classify a political
convention nor a - a straw poll as a governmental function, clearly
a - a - a party function. I think perhaps one of the other things
that may have been argued by the committee is - is that a
mitigating circumstance would have been if - if this were a normal
practice that you also sent letters of congratulations and support
and thanks to people who participated in the primary, either as
Republicans or Democrats or undecideds or undeclareds or Greens or
- or whatever. But -- and - and - and clearly, I think the
committee may have considered it a mitigating factor if - if that
kind of activity had happened before. I mean, I think the issue
that was before the committee - and - and a difficult issue for the
committee to decide - was: Did - did this happen in something that
was exclusively a party and is this the only thing that happened?
Did this, I mean, were letters of thank you written to Democrats
who voted in the primary? I - I'd - I would guess I would be
surprised. I certainly wouldn't have written letters of thanks to
Republicans who participated in the primary unless I was also
writing to... So I - I - I think - I think that is the issue that
was in front of the committee. I - I think another and more
difficult issue that's before this committee is - is - is the issue
of perception, that - I know that of us have struggled with, and -
and that is the perception -- I think the evolution of the Ethics
Committee process has been to include more public members. And -
and - and if - if we impose our judgment over the judgment of the
Ethics Committee -- I mean, we're not only back to pre-1992, when
there were an equal number of legislators and public members.
We're not only going back to 19 - pre-1986, in which there was one
public member and the rest were (indisc.--papers shuffling)
members. We're going back to pre-1983, when there were no public
members. And - and that's a perception that I - I think we
struggle with. And in the lack of clear and convincing evidence
that we found the judgment of the Ethics Committee flawed, I think
we really have no choice other than to sustain the judgment of the
Ethics Committee. And I know that's a difficult decision for all
of us. And I know that we don't have the luxury that the Ethics
Committee had in debating this in private behind closed doors and
taking votes. This is going to be a very difficult vote for all of
us. And unfortunately, it's a much more politicized vote than I
think it otherwise would have been. I want to speak just briefly,
then I'll - I'll close for now, to the other point that was made by
Representative Porter, who I (indisc. -- coughing) brings a lot to
this process because of his involvement with the Ethics Committee
previously, and that is the issue of cooperation. And I think two
decisions were made that - that - that made me uncomfortable as I
read the transcripts. And that - and - and - and the first
decision that made me uncomfortable is that we'd even gotten to
that point. I mean, I don't think any of us is happy about the
amount of money that has been spent on this. And so I'm
uncomfortable that we got to that point. I'm uncomfortable that -
that when the opportunity came, that - that both sides weren't
heard. And - and I think that gets to the element of cooperation.
And I think that if we do in fact find that the Ethics Committee
decision on - on the - on the guilt issue and the sanction issue
was fatally flawed, I think that we then need to go to the element
of cooperation, and I think that presents another difficult
decision for this body because - because clearly, I think, in
almost definition or - it would be hard to say that there wasn't a
very strong of uncooperation. And - and with that, then, I'll
close for now. I don't envy any of us for the decisions that we're
going to have to make. It's very difficult. I would just urge
caution if we overturn the decision of the public body.
CHAIRMAN KOTT: Speaker Phillips.
Number 388
REPRESENTATIVE PHILLIPS: Thank you Mr. Chairman. Representative
Elton, I have a question that I just want to clarify in my mind on
what you just said. Your statement is, if we propose our judgment
over the decision of the Ethics Committee, that this is wrong. In
a case -- it -- and that's what I understood you to say. My -- and
my question to you in a case of law, a person has a right of
appeal. Are you saying that because the decision by the Ethics
Committee, which is made up by a majority of members of the public
- once a decision is made by the Ethics Committee - that it -- the
person doesn't have a right of appeal, has no recourse of appeal
anymore? Because that's what I understand you to be saying.
Number 419
REPRESENTATIVE ELTON: I'll try to be brief. I think it's a fair
question, and I - and I hope if I left that impression, I - I
appreciate you giving me an opportunity to clear it up. I'm
clearly, no, I - I don't think that anybody envisioned in - in the
past that the House, itself, not be the final determinant of any
sanction that is recommended by the body. Clearly that's -- only
can be a decision that's made by, in this case, members of the
House. And - and - and as Representative Vezey pointed out, it's
a constitutional issue. I guess what makes me uncomfortable is
that in almost every administrative process that I'm familiar with,
and being a non-attorney, this -- my familiarity with the civil and
the criminal issues - generally, what happens under an appeal is
you hear it, and I'm probably not using the correct terminology
here, but on the record. New evidence is not allowed further on in
the appeal process, and the reason for that is obvious. I mean,
what - what -- if you have embarrassing evidence, you might not
want to use it at the first level of hearing if you can bring it in
at the second level of hearing if you need it. And so I guess that
is what bothers me the most, is that we're hearing new evidence,
which kind of goes against my grain.
Number 485
REPRESENTATIVE PHILLIPS. If I could just follow up. Your
statement was, if we propose our judgment over the decision of the
Ethics Committee, this is wrong. And I don't - I - I don't
understand what you just said. I understand the -- your inference
that because there was evidence presented to us that wasn't
presented to the Ethics Committee, that causes you a concern. I
understand that. But I don't understand why you would propose that
whatever judgment we make here, with the evidence that we have
presented to us, would be considered wrong.
Number 506
REPRESENTATIVE ELTON: Speaker Phillips, I - I'm - I apologize for
not being more clear and to your point. I'm not saying we can't
impose it. I'm not saying we shouldn't have the opportunity to
impose it. I'm just saying if we do, we are - are taking a - a
step that I'm very uncomfortable with.
CHAIRMAN KOTT: Representative Porter?
Number 522
REPRESENTATIVE PORTER: Thank you, Mr. Chairman. Recognizing that
we have had a better opportunity to examine all the facts than the
Ethics Committee, to me as you noted, is the -- the criminal case
where an actual sanction had been imposed, not recommended, the
appeal process does not properly allow new information. I don't
think that our process disallows new information. I think that
when we are asked to review their recommendations and make up our
own mind, we are not precluded from obtaining as much information
as we can have. But I think to the charges, I'm not -- I don't
think that I'm even utilizing anything that we learned from
Representative Sanders that admittedly was not in front of the
Ethics Committee. Going through the three charges, if I may, Mr.
Chairman, the first one - and I'll leave out the - what I would
assume not to be the relevant portions of the statute - but
Representative is charged with using public funds for a
nongovernmental purpose. The - the public funds were the funds
from his office account. Now, they have indicated that the use of
those funds would have been okay if he would have taken the office
account as income and paid taxes, as opposed to using the office
account as a draw down from LAA. So for a decision based on an IRS
concern, a personal concern, we have an ethics violation in one
case and a - and it wouldn't have been an ethics violation in
another. I just don't think that's appropriate interpretation, not
to mention the ambiguity of nongovernmental. We heard their logic
of how they got from nongovernmental to political party, but I
submit political party isn't in this section of the law. It is, as
a matter of fact, in the second charge and in the second portion of
the law that they reference. They did, by the way, in the first
charge, recognize that this letter was part of a mass mailing but
then didn't recognize the somewhat inconsistent provision that mass
mailings may not be made within 60 days, I think it was, of an
election, which somewhat presumes that, I guess, they can outside
of that envelope, but they're saying "except in this situation."
But in the - in the second charge, the - the statute that they're
utilizing there is the one that does preclude employees from
participating in - if I can find the specific reference, "The
purpose of political fund raising or campaigning." The -- they
found that there was not political fund raising involved, but there
was - was for the purpose of political campaigning. I guess to me
it's -- if this interpretation were to stand, it's my firm belief
that we could be logically accused of political campaigning with
virtually every letter we write. There was nothing in that letter
that said, "I'm running for office; vote for me." There wasn't a
campaign brochure. None of the kinds of things that I don't think
we'd be here debating if it was clearly a campaign related
publication. As a matter of fact, they're saying that's a -- the
staff to Representative Sanders that typed this participated in a -
- in an - a partisan political activity. I'm sorry. I can't - I
can't agree with that either. They wrote a letter about a partisan
political activity, but they didn't participate in it. The third
one was -- that was the third one, as a matter of fact, that I just
discussed. Yeah, their conclusion was that that was - in the third
(indisc.) second one - that it was for the purposes of political
campaigning, and that there was this peripheral campaign good will
based into that letter, that it wasn't fund raising but it was
campaign good will. And I -- you have to interpret statutes so as
to give them meaning, and the only meaning I can get out of that is
that everything that we do is for campaign good will. And I'm just
not ready to accept it.
CHAIRMAN KOTT: Representative Williams.
Number 758
REPRESENTATIVE BILL WILLIAMS: I was going to talk a little bit
about the - the committee process that we have here. I think that
it was brought -- we - we are going according to the - the law
today as far as we've brought it before the legislature. The
legislature told us to take this back to committee to find out --
get more information. So I think we are on the right track as far
as going against the -- if we couldn't have listened to
Representative Sanders and brought that information to us, I mean
that was the whole reason for having this - this meeting. So I
think that we are right in - in the process of it. I think the
lack of clear and convincing evidence throughout the whole process,
the - the law that is not clear and convincing. The timing of the
- of the meetings, this being a political year, had this been this
year, and as there was no election, we don't know the comments made
by the representative from Juneau, here, saying that we didn't know
how they - the Ethics Committee voted or felt or talked about
behind closed doors. I think we have a pretty good feeling about
what Representative Sanders felt during his campaign. And with
something like this over your head, so to speak, along with the
campaign, this is very difficult to think clearly. I think the
cooperation in this -- I agree that there was no cooperation, but
I think we should also find out what we are dealing with also. Is
it a political campaign that we're dealing with? Everybody here
that ran for office had some sort of feeling that a certain party
was campaigning against them. And they were going to make it a
little more difficult for them to get into office, however, it may
be. And I'm not going to say that anybody was doing that. I --
what I'm saying is that it was there. We played the "what if game"
yesterday. What if there was this undercurrent (indisc. -- papers
shuffling) of political pressure being put on the - on the
committee. What if it was done. I -- I'm not saying it was, but
we're also - we also don't know what the Ethics Committee was
doing. I -- but we have a very good feeling for what -- how Jerry
felt - Representative Sanders felt. So I think the cooperation is
there. There's a problem there that we have to deal with. I don't
think that the sanctions that they've brought, by the committee, is
correct. I think we have - and I'm not in a position right now to
say what we should be doing - maybe -- I - I don't know. I'm - I'm
not that far down the road yet. Thank you, Mr. Chairman.
Number 975
CHAIRMAN KOTT: Thank you, Representative Williams. I think
there's been quite a bit said already, based on government versus
nongovernmental issues. Certainly it is a problem, but since you
have at least opened up Pandora's Box and spoken, at least
indirectly, about the process, I do want to at least make one
comment at this point. You know - and it was brought out by
Representative Elton, I think, early on, and when he asked a
question of Mr. Rodey - and that it's -- that's the public
membership versus the legislative membership. I think that a lot
of this discussion, regardless of whether or not Representative
Sanders cooperated or pleaded the Fifth or whatever he might have
thought was necessary at the time, I think a lot of this would have
been prevented if we had good representation. I'm talking about
full representation by our two members that we have selected as
well. I think that's important. And we heard this from Susie --
Margie yesterday. She says she can't compel membership attendance,
but certainly the lack thereof does this body and the legislature
in general absolutely no good. And I think for future reference,
we should encourage every one of our members to ensure that they
make every attempt to attend these meetings, because I'm firmly a
believer now that, based on at least some of the comments that
seems to be circulating around the table, that this could have been
avoided at the very early stages just with the basic understanding
and helpful definition of some of the terms that have been
discussed here this evening. I'll reserve further comments.
Representative Nicholia.
Number 1080
REPRESENTATIVE NICHOLIA: I guess I -- you know, we've been talking
a lot about process here tonight. We've been talking about the
Ethics Committee process on ethics laws and one - one thing that we
should probably keep in mind for the future is that the person in
question, the one that's in front of the Ethics Committee, should
be there in person. That was probably another problem was that it
was on teleconference. And I don't think that - that the members
of the Ethics Committee on November 14th and 15th was biased. You
know, we do have three Republicans, two Democrats and one non-
partisan. Even though we did have among us a - a legislator
member, there was a Republican legislator there. And I - I don't
doubt for a moment that they knew what they -- that they knew -
they knew exactly what they were doing. They knew what they had in
front of them. They had their own interpretations of what they had
in front of them. And I think, with what they had to work with,
they did a - a good job. I wouldn't doubt what they were thinking
or how they interpreted the law. I think that - that we're putting
what they have done on trial here today and I don't think that's
right. I don't think that this is really the forum for that. I
think if we're going to talk about changes or problems that we have
with the law, that should be done in another forum. I think what
we should discuss today is whether we're going forward with the
sanctions or are we going to modify the sanctions? I think that's
where we should be. I don't think we should be discussing anything
but that. It seems to me that's what we're here for.
Number 1170
CHAIRMAN KOTT: I agree with most of what you said. I disagree
that at this point we should be addressing the sanctions because we
haven't determined yet, at least as I'm hearing it, whether or not
a violation has occurred. And at that point, then, we should then
further our discussion on sanctions for either the violation or the
willing cooperation of the -- of Representative Sanders.
Number 1195
REPRESENTATIVE ELTON: I - I appreciate the comments that the chair
made previous to Representative Nicholia's and I - I - I can tell
you I think that I probably had to listen to them more closely than
others, and - and I can tell you that I did listen to them and I -
I'm not -- I can tell you after this process I'm not anxious to
attend those meetings, but I - I - I will - I will do it,
especially after your admonition. I also want to say something
about - and I'm tempted to say "my good friend Cynthia Toohey," but
unfortunately I only knew her for two years, and when I knew her,
I can tell you that she spent more time nipping at my heels and -
and telling me what I ought to be doing, and I didn't maybe spend
enough time listening to her, but I do want to address the question
of one member of the legislature being there rather than two, and
I think it is unfortunate that maybe two weren't there. The other
side of that coin is, I don't -- I hope -- nobody who is watching
this on Gavel-to-Gavel would ever understand that I wouldn't have
the complete confidence. If only one person is going to be there,
I'm glad it was Cynthia Toohey, because I don't think she would
have been railroaded, and I - and I don't want anybody that's
watching this process to think that she couldn't represent us any
differently than she treated me as a freshman in this body. I
mean, she was on me all the time. Sometimes I agreed with her and
sometimes I didn't, but I always knew exactly what she was thinking
and I have a feeling so did the committee.
Number 1285
CHAIRMAN KOTT: Yeah, and I'm not, certainly, suggesting that
Representative Toohey did not do a formidable job. I wasn't there.
I can't tell you, and I, you know, from my relationship with her in
the past, I think she'd probably -- she's pretty boisterous and
she's - she don't go out of her way too often not to make a point,
and she generally stays in front and leads the charge. And my only
thought - and certainly the other member that was not there on
behalf of this matter clearly had justifiable reasons - I don't
want anyone out there in TV land to think that he was just avoiding
it either, because he certainly had some other commitments. And
that's basically the process at some point we're going to have to
address. And we talked about making arrangements and fitting
schedules. But I think when we look at the scheduling of these
particular hearings, we need to ensure that all members are in
attendance, like we have done here this evening. I think this is
such an important issue, we have scheduled this in the evening so
that all of us could be here. I know the press hate me, but that's
the way it is.
REPRESENTATIVE PHILLIPS: Mr. Chairman?
CHAIRMAN KOTT: Representative Phillips.
Number 1355
REPRESENTATIVE PHILLIPS: On that point, and the comments made by
Representative Elton too, and your comments previously, I've been
thinking about that all night, on the - the issue of the
legislative representatives on this and the difficulty that the
committee ran into trying to get everybody's schedule, waiting for
our legislative schedule. And maybe as we look at revisions to the
law, we would consider the - the legislative representatives on
this committee being past legislators, not standing legislators.
That may be something we take into consideration as we go, you
know, as we look at the revisions that come up. Maybe we would not
have some of the problems we have.
REPRESENTATIVE ELTON: I - I would second that.
Number 1398
CHAIRMAN KOTT: Well, I don't - I don't think you'll find any -
anyone of us jumping out of our current position to act in that
behalf. Representative Porter.
Number 1400
REPRESENTATIVE PORTER: I don't think I'd want to retire. I might
get nailed with that job. I agree with Representative Nicholia
that - that - you know, we can talk about this a whole bunch, but
when push comes to shove, we're going to have to face the issue of:
Do we think that we're going to accept or reject or modify the
sanctions? And - and I guess speaking to that, I recognize we're
not going to try to outline any or make up our mind tonight whether
we're going to have none or some or all or whatever, but I guess
speaking to that, so that the document we have will have some
guidance at least from one member, I think it -- that the
violations fall into the allegations and then the cooperation, and
I just can't agree with their conclusion on the violations, so as
far as I'm concerned, I - I can't -- I wouldn't recommend sanctions
for those violations. To the - to the requirement of considering,
as the statute requires cooperation, I wouldn't think that I would
subscribe to the list that they have because, of course, those were
based on their opinion of the charges, but I think that there's an
issue of cooperation. I would probably consider mitigated
sanctions of some kind. But just to that point, I think -- I'll
say one thing and then I'll be quiet. I asked Representative
Sanders the last question last night at 9 or whenever the heck we
quit - or night before last, I guess it was - where he was from and
I did that for a reason. We used to have an informal policy in the
agency that I used to work for and with. When an officer made a
traffic stop, and I don't know if this is still going on or not,
we would periodically get with the driver's license from Illinois
or New York or something, a folded up piece of U.S. currency. And
if it was that this individual had just recently arrived from
Illinois or New York or several other communities, that person
thought that they were doing what normal process in traffic law
enforcement was. We gave those people a break. We politely gave
their money back, said, "This is not Chicago. As a matter of fact,
you've just committed a crime. Your name is going to go on a list,
and if you ever do it again, you're going to jail." And if anybody
with an Alaskan driver's license, that lived here, tried that, they
went to jail. I think Jerry's lived here long enough not to think
as poorly of the people involved and the facts that he was
presented with that his conclusion should have been tempered by the
length of time that he'd been in Alaska. But sometimes things that
you learn early are hard to get rid of. So I guess that's the
basis for my saying that I understand his position. I just don't
agree with it and don't think it would be our - in our best
interest to overlook it.
CHAIRMAN KOTT: Representative Elton.
Number 1641
REPRESENTATIVE ELTON: Thanks -- I mean, I think many of us were
wondering exactly why that question had been asked. And I guess my
response is I think a lot of Representative Sanders -- and I don't
-- I think he also testified that he'd been here for 25 years, and
I really don't think it would take 25 years for Representative
Sanders to learn the Alaskan way. If I can continue, I -- Mr.
Chair, I - I mean, I think that what we're doing is we're sidling
down a path here and I think that I can see perhaps -- or I'm
beginning to clarify what path we might be sidling down. I think
it may be much cleaner for this committee to consider a motion that
I'm prepared to make now and that motion, so that we can - we can
clarify where we're going and how we're going to do it, that motion
is that we forward to the full body H96-02 with recommended
sanctions. And if I could speak briefly to the motion.
CHAIRMAN KOTT: There is a motion before us to forward to the body
sanctions regarding H96-02.
REPRESENTATIVE ELTON: The decision and the sanctions.
CHAIRMAN KOTT: The decision and the sanctions. Is there
objection?
Number 1726
REPRESENTATIVE VEZEY: Object.
REPRESENTATIVE PHILLIPS: Object.
CHAIRMAN KOTT: There is objections. Please speak to your motion.
Number 1740
REPRESENTATIVE ELTON: Mr. Chair, I - I mean, I -- I'm going to try
and be relatively brief here. A, do I think that the - the charges
that were brought against Representative Sanders were serious? No.
I mean, I - I don't. I think that all of us have sat and thought,
"Would we have done the same thing?" And many of us may have
decided that perhaps we would have. But - but I do agree with the
finding by the Ethics Committee that there was a violation, and it
wasn't a serious violation. I think that the job that the Ethics
Committee had was a very difficult job. I mean, if they - if - if
they found yes, the - the allegation was justified, then they had
to come up with sanctions. And - and I think that it would have
been very difficult to divorce the issue of cooperation and - and
how much we've spent and how complicated it's gotten and - and -
and where we've gotten to. But - but I think that they made a
good-faith finding that there had been a violation. And -- but I
think they would be as quick to acknowledge as many of us might be
that it wasn't a serious -- I mean, it wasn't all that serious. I
don't think this - I - I want to move now to the sanctions portion.
I don't think the sanctions are all that serious. I mean, I - I
went - I went down the list, and quite frankly, I mean, the
sanctions are something that I live with as a member of the
minority. I mean, I'm not chair of a committee. And I think I've
never taken advantage of this, but I think I've - I've never
travelled outside the state of Alaska, so I keep thinking, now what
would happen if - if I had done this and this was the sanction? I
- I guess I'd say, "Hey, I can live with this; this isn't too bad."
I - I - I am living with it. And - and so I think the sanctions
probably fit the degree of the violation here because I don't see
the sanctions as - as all that difficult to live with. And - and
so in wrap-up, I guess I'd just recommend that we can set aside a
lot of the heartburn if we accept that the - the decision made by
the Ethics Committee was a reasonable decision, a difficult
decision, one made perhaps much more difficult than it should have
been, but I -- I mean, I've not heard anything that makes me think
it was a fatally flawed decision. And I - and I don't see anything
in the recommended sanctions that go much beyond. (Indisc.) think
the sanctions are all that bad. With that, Mr. Chair, I'm done
speaking to the motion.
Number 1954
CHAIRMAN KOTT: Thank you, Representative Elton. Your motion
essentially would establish that there was a violation and the
sanctions imposed were justifiable based on the violation
occurring. And I don't think that this committee, at this point,
has concluded, at least from what I'm hearing, I may be wrong, that
there was a violation. I heard Representative Porter suggest that
he's looked over the issues in detail, and he's had the privy of
sitting on that committee in the past. And based on his testimony
or comments, he suggested that there were no violations.
Therefore, that motion, the second portion of it, would probably
not be applicable. I also tend to agree with Representative
Porter, in addressing all the issues that we've heard over the last
couple of days. I've been really struggling with this one, but I'm
asking myself over and over: Was - was the mailing for a
nongovernmental purpose? And I think that it really gets to the
heart of the whole issue of our expression of thanks to our
constituents. We do it on a consistent basis. I have sent letters
of thanks using stationery to probably one of you when you were re-
elected or elected for the first - first time. Not thanking you
for getting elected but congratulating you. You know, that's just
something that comes, I believe, in the normal course of our daily
activity, and that is thanking people. I mean, we often hear from
our constituents, all the time, "I'm not gonna vote. I'm not gonna
take part. It just doesn't matter. I don't get any appreciation."
Well, this is an opportunity that was taken that expressed some
gratitude and some appreciation for taking part, and I'm not so
sure, a real sanctioned political event. Now, let me get to that.
It's my understanding that one of the individuals who received this
letter was not a Republican. Now this is -- of course, we've been
through this to some degree. The person registered as a Republican
to attend the caucus, that straw poll, and shortly thereafter
changed his registration back. So in essence, was he a true
Republican or was he of another party affiliation? So getting to
that issue, you know, it's really a - a more broad-based issue of
whether or not we are dealing with just one political party or just
a label. You know, is it just a label that we're dealing with or
is it actually a political party persuasion, if you will, or
personality? And I don't think in this particular case that you
can argue that this was in fact a political arena, and certainly,
as I agreed with Representative Porter, the letter was to someone
who took part in it. And we're just thanking them for taking the
time to participate, which I think that encouragement certainly
goes a long ways towards benefitting our neighborhoods and society
in general. Representative Nicholia.
Number 2235
REPRESENTATIVE NICHOLIA: Mr. Chairman I - I disagree. I know, and
from the record, it states that the letter was written on March
4th, 1996, when we were in session, before our re-election, and
that it was only sent to Republicans, and that it says in there,
"my fellow Republican" in the letter. It doesn't say, "my fellow
Republican and my fellow Democrat" or anything like that, you know,
it just says specifically "to my fellow Republicans" and speaks
about a presidential poll. In my mind, that seems to be a
violation, and - and - and to speak on the motion before us, there
is a motion and I second it. And - and if you don't like the
motion, then why - why don't we just vote on it, vote it down or
vote it up?
Number 2305
CHAIRMAN KOTT: Representative Nicholia, you've been around long
enough to know that we are addressing the objection that was
raised, and that's the purpose of this discussion. Is there
further discussion on the motion? Objections still maintained?
REPRESENTATIVE VEZEY: Yes.
CHAIRMAN KOTT: Committee secretary, please call the roll.
TAPE 97-6, SIDE A
Number 001
JAMIE FOLEY, COMMITTEE SECRETARY, HOUSE RECORDS, ALASKA STATE
LEGISLATURE: Why don't we start it over?
CHAIRMAN KOTT: Okay, would the committee secretary, again, please
call the roll.
MS. FOLEY: Okay, Representative Vezey.
REPRESENTATIVE VEZEY: No.
MS. FOLEY: Representative Phillips.
REPRESENTATIVE PHILLIPS: No.
MS. FOLEY: Representative Porter.
REPRESENTATIVE PORTER: No.
MS. FOLEY: Representative Williams.
REPRESENTATIVE WILLIAMS: No.
MS. FOLEY: Representative Elton.
REPRESENTATIVE ELTON: Yes.
MS. FOLEY: Representative Nicholia.
REPRESENTATIVE NICHOLIA: Yes.
MS. FOLEY: Chairman Kott.
CHAIRMAN KOTT: No. So the motion fails which brings the matter
back before the entire committee. Is there further discussion on
the matter? Representative Phillips.
Number 106
REPRESENTATIVE PHILLIPS: Thank you Mr. Chairman. I think you've
pretty much - pretty well outlined the next process or the next
part of the steps and that is to take all the concerns that have
been expressed here tonight. One of the things that I have not put
on record tonight because -- and in the essence of not clouding the
issue on this particular case that's before us, but in the
discussion the last three nights on this particular case, I have
three pages of notes and areas in the current legislative ethics
law that I think we need to address. I'm not going to put those on
the record tonight, I don't think that we need to do that, but just
-- there's so many questions that have come up in the last three
days that I know that we will be spending a lot of time on this in
the future. I think your process is right that we take the
comments that have been made the last three days, roll them into a
document that we can look at possibly Monday. Is that what your
considering?
Number 170
CHAIRMAN KOTT: Early part of next week. I think your points are
well taken. It's my understanding, at least based on the previous
motion that was voted down, that at least the majority of this
committee does not believe that a violation occurred and if that is
not the case please let me know now. So I would like to proceed to
the second area regarding the noncooperation or sanctions if there
are any in that area. And let me just open it up by suggesting it
is tough. The committee probably went through an enormous amount
of time and effort for a very minor thing as was indicated I
believe in earlier testimony perhaps a lot of this could have been
cleared up early on and based on Representative Sander's appearing
before the committee. Perhaps not. We heard from him a couple of
nights ago that there was substantial amount of apprehension in
putting himself before the committee. There is a point in law
that's known, at least if I can remember this, that says that if
there is no violation then you would adhere to the long standing
judicial concept of judicial economy which basically suggests that
there's no violation there's no sanctions imposed. Unfortunately,
that is not quite the case in this particular event and let me just
read from the statute on this, it's coming from 24.60.170(k), and
I'll read it: "Following the hearing the committee shall issue a
decision stating whether or not the subject of the complaint
violated this chapter and explain the reasons for the
determination. The committee's decision may also indicate whether
the subject cooperated with the committee and its proceedings. If
the committee finds a violation or lack of cooperation by the
subject, the decision shall recommend what sanctions, if any, the
committee believes are appropriate." So, that is something in
statute that we at least must address so the term "judicial
economy" I suppose goes by the wayside. Having said that, this is
one area that is extremely difficult for me and I'm really troubled
based on some of the testimony that we heard. I asked Margie
whether or not the sanctions imposed were result of Representative
Sanders pleading the Fifth. Her response was, "It was not." They
were not part of that. It was due to the tedious, extraneous
motions or pleadings in my understanding, I may be wrong here -
correct me I'm trying to recap here, by his attorney. Well, we do
have a attorney/client relationship in this country, whether we
like it or not, and not so sure that biding by your attorney's
recommendations that in this particular case, non-cooperating is an
essential element. I'm just opening this up for the purposes of
discussion, I'm not going anywhere with it but certainly it's
something we all should at least consider. Representative Porter.
Number 473
REPRESENTATIVE PORTER: I - I - I went through that exercise in my
head when I reached the conclusion that I just stated that it's
very clear if the committee finds a violation or lack of
cooperation (indisc.) consider sanctions. I don't think that, as
stated I think very appropriately by Margie MacNeille, that the
Ethics Committee could afford to make a value judgement on the
apparent seriousness of the violation, as opposed to what it might
be facing in a (indisc.) based on the ability of a legislator or an
employee to throw in delaying tactics that ran up a bill. I think
they made the right decision, they don't have that option, they
have to follow it through. And, I think that's why considering
sanctions for creating that situation is appropriate. Certainly,
something that a legislator realizes and that's why I'm prepared to
I think not support a position of absolutely no sanctions in this
case.
CHAIRMAN KOTT: Representative Phillips.
Number 569
REPRESENTATIVE PHILLIPS: Thank you Mr. Chairman. On the issue of
a violation - of the violation itself I, as other members of the
committee do, do not believe a violation occurred, and therefore,
I would not support sanctions for a non -- what I do not consider
to be a violation. On the issue of lack of cooperation, that gives
me trouble. It has caused every one of us trouble. But I
understand Representative Sander's feelings on it. I certainly
could have put my myself in his place and understood why he took
the roll that he did. Probably we need to address the whole issue
in two separate in two separate - in two separate categories. I
don't know how you sanction somebody for lack of cooperation when
that person firmly believes that they were, if put into position
where they could not cooperate, nd I think we have to look at that
question, whether or not a the person felt that they could not
cooperate because of extenuating political circumstances.
Number 662
CHAIRMAN KOTT: Well yours seem to be as troubled about this as I
am. This is a real - real tough one for me. And I'm not so sure,
again, this is not a flaw in the statute suggesting that you may
consider if your found innocent of something and legal court of law
you are not then charged - brought up on charges again of non-
cooperation during that process. That's really overcome by events,
the fact that there was no charges or you weren't convicted of the
charge initially. But I'm really troubled as to the reason why
it's even in there to a large extent, and again based on what I
understand of the whole issue, and what is considered normal
practice and I'm not sure what that term means, what is normal
practice in a court of law. Whether these motions that are filed
are delaying tactics, I suppose that you could perceive them to be
delaying tactics if your on one side of the coin. If your on the
other side, perhaps they would be most appropriate. But, I think,
as I look at this, this is maybe not delaying tactics, but perhaps
common tactics that are often used in a court of law. Again, I 'm
certainly not the expert on judicial process, but from what I
understand, that's kind of the way I see it. Speaker Phillips.
Number 793
REPRESENTATIVE PHILLIPS: Mr. Chairman, that brings up a very good
point, and the point is a constitutional question. If you are
found innocent of a charge, can you be found guilty of an action
associated with the innocence of your charge? And I think there is
a constitutional question there.
CHAIRMAN KOTT: Representative Porter. To answer this
constitutional problem.
Number 817
REPRESENTATIVE PORTER: I think I addressed it but the statute that
I just read, clearly to me, requires us to consider the violation
allegation and cooperation. This isn't a court of law. This isn't
-- our members and our employees don't have the constitutional
protections of a criminal defendant as we've recognized the courts
don't even want to tell us how proceed in these procedures because
we're a separate branch of government and it's not within their
purview to delve in. Maybe right about now we'd wish they would
and we wouldn't have to make these decisions. But quite frankly to
me, it's clear that it is a law that the legislature passed and we
are bound to follow it. I don't feel there's any overriding
constitutional problems in following the law that says you will
consider cooperation. I think it was appropriate for the committee
not to use the Fifth Amendment privilege in their determination of
lack of cooperation. That doesn't mean that all the other
opportunities through the process, before they got into that
hearing, that were not taken advantage of by Representative
Sanders, didn't present a lack of cooperation. The tactics during
the procedure could not, I guess, be considered a lack of
cooperation, but I don't think that they hung their hat on all of
that. I think they hung their hat on the entire process as it
started and ended and, quite frankly, I cannot disagree with their
ultimate conclusion. I can understand the Representative's
position. I just don't agree with it. I can understand how they
reached their conclusions and I don't agree with them. And that
brings me right back to where I started so I'll be quiet.
Number 957
CHAIRMAN KOTT: Okay, we're going to take a five minute recess.
REPRESENTATIVE ELTON: Can I speak to that.
CHAIRMAN KOTT: An hour and forty-five minutes -- Representative
Elton.
Number 960
REPRESENTATIVE ELTON: Just - just to that point. I mean I - I
agree completely with Representative Porter. I mean this body
alone determines whether or not, or how, or when, or why we
sanction people. We can do it because we don't like the way they
dress if I understand the latitude that we're given. So - so I
mean I agree with Representative Porter. There is absolutely no
constitutional issue here that would preclude this body (indisc. --
coughing) considering whatever standard we wanted to apply.
Number 995
CHAIRMAN KOTT: Thank you. We'll take a about a five minute
recess.
[The House Rule Committee went into recess at 7:45 p.m. Chairman
Kott called the meeting back to order at 8:10 p.m.]
Number 1006
CHAIRMAN KOTT: Where we left off was essentially dealing with the
non-cooperation issue, imposing sanctions for that non-cooperation.
Had some discussion on the issue and we'll open it again up.
Representative Phillips.
Number 1019
REPRESENTATIVE PHILLIPS: Thank you Mr. Chairman. I do have one
more comment to make and to put on the table on the cooperation
issue. And that is that our constitution guarantees us the right
to do nothing in our own defense. Nothing. So, I think this very
clearly - speaks very clearly to the cooperation or lack there of
issue. Lack of cooperation is an issue that the constitution
protects us for. The right to do nothing in our own defense.
CHAIRMAN KOTT: Representative Vezey.
Number 1054
REPRESENTATIVE VEZEY: Thank you Mr. Chairman. I - I do agree that
even in this quasi judicial sitting that anyone has a right to
remain silent, to not testify against themselves. That doesn't
mean, that particularly in this case, that would be a wise course
of action. I think that it was back to the contrary in this
particular case. I think it was very unwise course of action. I
think that Representative Sanders has largely inflicted a lot of
these sufferings he has gone through and he expressed with us upon
himself because of his poor judgement. And as -- I can speak from
personal experience that stupid actions carry their own sanctions.
You don't have to punish people for making stupid mistakes. And I
would be surprised if Representative Sanders, with all the
information that is now before us, would not look back in hindsight
and say that he used poor judgement in not being more cooperative
with the Ethics Commission. It would have affected the time line
of the whole process and it certainly would have had some impact on
the outcome. Even if it didn't have some impact on the outcome, it
would have brought the matter before this body for consideration
under a very different light.
CHAIRMAN KOTT: Representative Porter.
Number 1142
REPRESENTATIVE PORTER: There's a management course that what
(indisc.) a few years back that had us a principle that takes
stress off of people that they should realize that there is
absolutely nothing that an individual has to do. You don't even
have to pay your taxes, but you do have to face the consequences of
your own decisions. The constitutional guarantees of not having to
mount a defense accrues to criminal defense. That's all. And I
think that you certainly have the right to do anything that you
want. Also have the burden of facing the realities of those
decisions.
Number 1206
CHAIRMAN KOTT: I certainly agree with what you said. It's hard to
disagree with that. Again, my - my troubles with this whole area
is essentially with the legal side of the situation. What does it
mean to be non-cooperative? Obviously, by pleading the Fifth that
didn't substantiate being uncooperative as we - we heard. The
filing of motions or pleadings or the lack there of, does that
constitute un-cooperative? I'm not sure. In the statute it says
the person charged may file a response of pleading to the
committee. "May" is the operative word, or "may not." There's
nothing concrete and absolute in that. In the statute it says a
person charged may engage in discovery in a manner consistent with
the Alaska Rules of Civil Procedure. Again, I asked Margie because
she's got the background, I think, quite a bit more than I have, I
mean she's (indisc.) that profession. Is this something common or
is it uncommon? And I am at a conclusion, based on what she
suggested, that perhaps this is a common practice in a court of
law. Now I realize were not in a court of law there. But I also
realize that when you have competing interests or your in this
adversarial relationship, it's the committee against Representative
Sanders in this particular case, there may be, I think, from their
perspective the mindset that what he's doing or what his attorney
is doing, is a delay tactic. And, therefore, in fact, he is
obstructing the process or not cooperating. This is where I'm -
I'm troubled. This is right where I'm at right now. I'm just
bordering this fence. Not really sure if this is a legitimate
issue that is being addressed as far as cooperating or not
cooperating, or not. Representative Williams.
Number 1354
REPRESENTATIVE WILLIAMS: I don't know. I think it's clear that
there wasn't any cooperation (indisc.) I think that goes all the
way and I'm glad we narrowed it down to that. I think we all
understand what may have happened (indisc.). I don't know. I
guess we're ready to go down that road of what do we do if
anything.
Number 1391
CHAIRMAN KOTT: I guess that's where we're at. Where do we go from
here? And I probably ought of restate my position. Did
Representative Sanders cooperate or not? No. He didn't cooperate.
Was it valid non-cooperation? That's what I'm questioning, trying
to come to some conclusion with. Representative Elton.
Number 1410
REPRESENTATIVE ELTON: Mr. Chair I don't know how to get you out of
your dilemma. But I - I'm - I guess I am wondering whose dilemma
this is. I mean I think that one of the options that this
committee has is to forward to the body the action that has been
taken and you can forward to the body the action that has been
taken, and you can say this is of concern to the body. And - and
I mean whatever decision -- my understanding of the process and
maybe somebody can clarify this if I'm wrong, my understanding of
the process is that we'll be taking a recommendation to the body.
The body will accept, reject, amend, do whatever they want to it.
And so I don't know how -- I don't know what this body -- what this
committee should do. But I mean one of the things obviously it
could decide to do is - is say this was the vote on the motion.
This is what the motion addressed, and the body has concerns about
the element of cooperation.
Number 1481
CHAIRMAN KOTT: Certainly, that is one of the options that we have
as a committee. However, I think also as a committee and being
charged with responsibility of looking thoroughly at the matter, we
shouldn't just shed an enormous part of that responsibility and
throw it back on the hands of the members of the body and open it
up as a committee of the whole. I think that's one of the reasons
why it has been referred to a committee is, hopefully, we can
narrow the scope down and provide some kind of direction to the
body. Representative Williams.
Number 1511
REPRESENTATIVE WILLIAMS: I'll take a stab at it. Going along -
going along the lines of what Representative Vezey had said earlier
that, you know, that if we put this whole legislature in
embarrassing situation, I think -- it certainly affected me
personally having to be here for three days at - at -- where I
should be at home right now. And I certainly would like to - to
see something said and done. I don't know exactly what happened
the last two times or if there was cooperation at that time, and
what type of cooperation that was happening at that time. But we
have, within our legislative laws, definitions of legislative
intent that we had to bring in with Mr. Rodey. A lot of the bills
-- I - I -- we have something here that I would like to know what
the legislative intent was when we brought - brought up this
cooperation. I would maybe like to see Representative Sanders
research this and I can't say that he should apologize. I don't
think it's - it's in that area. But I think to make everything
clear for us so that we don't go through this again - see how we
can -- no, no I don't know how -- that's something we can look at.
Number 1634
CHAIRMAN KOTT: That was a compelling idea Representative Williams.
In fact, I was thinking about putting you in charge of the
subcommittee to address what non-compliance or non-cooperation
means, but I'm sure you wouldn't appreciate - appreciate that. I
do think that there is three issues that we still have before us,
to a large extent is whether or not there was cooperation or not.
I think from what I am hearing most us are of the impression that,
yes, there - I - I - you can make the argument that there was non-
cooperation. Secondly, it wasn't justifiable. That's what I'm
tossing with -- troubled with maybe the rest of you aren't. And,
third, if it wasn't justifiable, then what is the penalty for that
non-cooperation. And, again, we are treading on new ground in
every one of these areas in defining what cooperation is and what
it is not, and then certainly the sanctions or sanction or whatever
we come up with. Representative Porter.
REPRESENTATIVE PORTER: Representative Vezey.
CHAIRMAN KOTT: Representative Vezey.
Number 1685
REPRESENTATIVE VEZEY: Mr. Chairman, are you ready for a motion?
CHAIRMAN KOTT: I think there's further discussion. Representative
Porter.
Number 1699
REPRESENTATIVE PORTER: To the discussion, I guess I have to
comment that the suggestion from Representative Elton -- when I
used to work for the city that was called the municipal salute. We
all ran saying we were here to make tough decisions and this is
probably one of the toughest ones where were going to have to make,
and I welcome you to the that position for the next two years.
I've been there, done that, and here I am again. But perhaps with
a little of that background, in my mind there were no violations of
the three allegations that they stated. There was a fourth
violation that was a lack of cooperation and I think that's
properly something to be considered and sanctions considered for.
Looking at the sanctions that they had recommended, I think it is
not -- wouldn't be too difficult to separate them from what it
appears that they were aiming at the violations and what they were
aiming at the lack of cooperation and those that fell out in the
lack of cooperation area, I would say we should impose. Those that
went to the violations (indisc.) it is the committees conclusion,
as it is mine, that those -- the finding that - that was a
violation was a reasonable interpretation, but an incorrect one as
I feel. And, I don't think we should impose sanctions on something
we don't believe was - was a violation.
CHAIRMAN KOTT: Representative Nicholia.
Number 1781
REPRESENTATIVE NICHOLIA: Just like to say (indisc.) cooperation,
Mr. Chairman, and going back to 1995, we got the appointment for
the Ethics Committee and then we voted on their confirmation, and
then we voted on their confirmation. We also voted with a little
trust in - or maybe a little or maybe more - trust in those persons
to serve on that committee. And we're - we're not privileged to
read the correspondence in this case, we're not privileged to see
what they - what they had read. It says here in their findings
that upon reviewing the pleadings and correspondence in the case
since a probable cause determination, a pattern of delaying and
obstructing tactics and feeling a lack of compliance with the
hearing officer's orders which constitutes a lack of cooperation
which was inappropriate. So, what we did was we gave them that to
ponder and to go over and they came back with their recommendations
and their interpretations of the ethics law. So I guess what I'm
wondering now is are we doubting their reasons for - for writing
this and putting it into their findings? You know, just what are
we doing? Where are we headed with this? I mean we gave them a
job, a difficult job that we all recognize that in our speeches for
the past three days. I guess my question now is they had - they
had information from that we don't and so the question is are we
going to keep on talking about this without that evidence? I guess
what we're - what we're doing when we keep discussing this over and
over is that we're doubting those members and their decision. And
I'm not sure where we're going with this now.
Number 1885
CHAIRMAN KOTT: I don't think anyone is doubting what was done.
It's basically to understand what was done. Lack of compliance
with the hearing officers. I don't know what that means. I'm
looking through the case review and having a difficult time, that
was provided to us by Ms. MacNeille, determining where that falls
and clearly, there's probably a place here. Just having a
difficult time in determining it. I think part of the problem,
like I mentioned earlier on, is we put the committee members on the
Ethics Committee in a very very difficult spot. Certainly not one
of envy. When you have two competing parties, you are going to at
least perceive that the other is trying to outdo you. Jerry
Sanders probably had some feelings towards them and I think clearly
on the record yesterday that Ms. MacNeille, in my point of view,
addressed almost every concern that I had with the process. She
provided us pretty good documents. I think -- in also from their
behalf, looking at Representative Sanders and his attorney -- again
I'm -- at least I must remind you that he was represented by
counsel and under, I suspect, the advice of counsel, they did
certain things. Were those things justifiable? Were they in
accordance with the rules of procedure? That's really the
question. And if they were, then is it in fact unjustifiable non-
cooperation?
REPRESENTATIVE PORTER: (Indisc. -- coughing) time for a lawyer
joke, is it?
CHAIRMAN KOTT: A lawyer joke? No, I don't think so.
Representative Vezey you did have a motion of -- that you wanted to
put on the table for the purpose of discussion.
Number 1998
REPRESENTATIVE VEZEY: Thank you Mr. Chairman. I move that we
forward to the body our finding that in this matter, we can put the
exact numbers in it, that no violation of the Ethics Acts occurred,
but that we find that Representative Sanders was guilty of - of
being uncooperative. I'm sorry, I shouldn't say -- let me change
that motion. That Representative Sanders was uncooperative. If
the motion carried why then we would address the issue of sanctions
for being uncooperative.
REPRESENTATIVE ELTON: I object for the purpose of discussion.
CHAIRMAN KOTT: There is a motion before us. There is an
objection. Representative Elton please.
Number 2022
REPRESENTATIVE ELTON: In - in - in partly, and I think that your
probably Representative Vezey working with the language and - and
I guess the part of the motion that - that bothers me is -- I guess
I would prefer a motion that says we didn't have enough evidence to
determine guilt or not guilt on the issue. I - I - I don't know,
for me this is more difficult perhaps now. I mean I - I thought
the sanctions were appropriate for the action that had occurred,
and now we've gone beyond that and were looking at an issue that -
that I'm struggling with and I - I don't know whether it's not
something that the Speaker, for example, shouldn't deal with alone.
I mean why?
REPRESENTATIVE PHILLIPS: Right.
REPRESENTATIVE ELTON: I - I mean I clearly - clearly whatever
sanction occur are within the purview of the full body or within
the purview of the Speaker, or the caucus. And - and what we're
doing -- I mean we've complicated things by a finding by the
majority of the committee on guilt or innocence, and we're now into
something, that I doubt if the committee even discussed. I mean
the -- my understanding of what the committee did is they didn't
make a finding that there was a lack of cooperation, unless I'm --
I thought the three charges that were before us, none of them
involved the issue of lack of cooperation. So I am struggling with
this. I'm especially struggling with the language in the motion
that says the body finds lack -- that there was no guilt.
CHAIRMAN KOTT: Representative Porter can you speak to that?
Number 2114
REPRESENTATIVE PORTER: The final -- under the recommended
sanctions in their report, the final paragraph reads, "the
committee and the legislature must take a strong stand when the
misuse of public resources occurs. The committee has increased the
sanctions recommended because of the prior findings of probable
cause of Representatives violated the Ethics Act and because of his
lack of cooperation."
Number 2134
CHAIRMAN KOTT: Yeah, and that - that was certainly indicated from
the testimony that we heard last night. We do have a motion...
REPRESENTATIVE PHILLIPS: Can we have it read again?
CHAIRMAN KOTT: Could you repeat that motion Representative Vezey.
Number 2148
REPRESENTATIVE VEZEY: I doubt I'd get it exactly the same. My
motion was that we the Rules Committee find -- forward to the body
our finding that in this matter no violation of the Ethics Act
occurred but that we do find that Representative Sanders was
uncooperative.
CHAIRMAN KOTT: Okay. Does everyone understand the motion before
us? Representative Nicholia.
Number 2166
REPRESENTATIVE NICHOLIA: It's - it's kind of confusing because you
find him with a lack of cooperation, but you find him not guilty of
a violation. Can you explain what you mean by that?
REPRESENTATIVE VEZEY: I doubt it.
Number 2183
CHAIRMAN KOTT: I would try to explain it myself except it's a
difficult one, other than the fact that in the case itself there
were three sections that were identified as having an alleged
violation occurring. So there's three areas that they are
basically looking at that suggests there was an alleged violation.
The non-cooperation issue was not addressed in any one of those
sections of law. So that may be some clarification. I don't know
if that muddied the waters or helped clarify it, but that's my best
guess at it. Further discussion on the motion? Is there still
objection? Please, call the role madame secretary.
MS. FOLEY: Speaker Phillips.
REPRESENTATIVE PHILLIPS: Yes.
MS. FOLEY: Representative Porter.
REPRESENTATIVE PORTER: Yes.
MS. FOLEY: Representative Williams.
REPRESENTATIVE WILLIAMS: Yes.
MS. FOLEY: Representative Elton.
REPRESENTATIVE ELTON: No.
MS. FOLEY: Representative Nicholia.
REPRESENTATIVE NICHOLIA: No.
MS. FOLEY: Representative Vezey.
REPRESENTATIVE VEZEY: Yes.
MS. FOLEY: Chairman Kott.
CHAIRMAN KOTT: Yes. And the motion does carry. Representative
Vezey, you want to speak to the second portion...
Number 2245
REPRESENTATIVE VEZEY: This brings us down to the question of
sanctions, Mr. Chairman. And I - I have not resolved this in my
own mind. I -- Your remarks about sanctioning somebody for not
cooperating in something that they were not guilty of, is not
appropriate, but I - I not -- couldn't entirely satisfactory with
that either because I see the Ethics Commission not as a branch of
the judiciary, I see it as an arm of the legislature and I see
being uncooperative with the Ethics Committee as being
uncooperative with our peers. And at the same time I temper that
with the fact that if I was in that position, and I have been
investigated by this committee, there is some misinformed people
that thought I might have violated the Ethics Act at one time or
another, and there is a - a - a desire to kind of stay out of that
arena. I - I can sympathize with that. You don't -- I would not
want to go in and be confrontational with an Ethics Commission.
And I would tend to trust that they would get to the facts and that
the facts would speak for themselves and they would come to a very
reasonable conclusion. Representative Sanders expressed to us that
he had concerns that that would not be the case. I don't think
those concerns would justified. I'm really just rambling on
because I haven't decided in my own mind if I think sanctions are
important enough or not. I think that Representative Sanders has
been sanctioned indirectly, through his own actions, he has
suffered, I think, tremendously as a result of this -- these
charges of an ethics violation, and his conduct et cetera. What
would be appropriate - appropriate for us to do, and I don't have
the answer. I was kind of hoping maybe somebody at the table might
be able to enlighten me.
CHAIRMAN KOTT: Thank you Representative Vezey.
REPRESENTATIVE PORTER: Chairman Solomon what do you think?
Number 2340
CHAIRMAN KOTT: I'm kind of at a loss as well. I don't know if I
can enlighten you to any great extent. Certainly, what you have
said is I'm sure true that there have as a consequence of his
actions, he must pay the penalty. And he's probably paid the
penalty through media attention, criticism and - and economic
suffering that might have occurred. I don't know the background of
the economics, what he paid counsel, but I'm sure if it's anything
like most counsel they charge you a few dollars. But in essence
beyond that I'm at a loss as well as to what -- if we can
differentiate between the sanctions that would have been imposed
for the violation versus the sanction that would have been imposed
having heard -- the Ethics Committee having heard all the whole
story, and then because of un-cooperation or whatever they imposed
a sanction or sanctions at the end. I mean it's hard to separate
the two, in my mind. I don't know what would be appropriate, if
anything. Representative Phillips.
Number 2401
REPRESENTATIVE PHILLIPS: Mr. Chairman, on that point in going
through the sanctions, I think it's fairly clear that the majority
of the sanctions recommended by the Ethics Committee relate
directly to the violations, and we have said those violations are
not a matter for us to concern with. The one sanction that doesn't
deal directly with the violations, only, is the issue of an apology
and the apology -- there's wording in that sanction that says, "He
wishes to avoid directly saying he participated in order to protect
his Fifth Amendment Right against self-incrimination." So that
part of the apology statement could relate directly to the lack of
cooperation. All the other things relate to the violations which
we have said he is not guilty of the violations. So just strictly
staying within the sanctions and the -- relating the sanctions to
the issue of cooperation or non-cooperation.
Number 2450
CHAIRMAN KOTT: Well, I think you may be on to something, actually.
TAPE 97-6, SIDE B
Number 001
REPRESENTATIVE PORTER: I guess there's two sanctions in here that
I think have already been accomplished, if I am not mistaken, and
I guess Representative Sanders can just shake his head, but it's my
understanding that Representative Sanders has already elected to
change his office account allowance to the nonaccountable versus
the accountable so one of those recommendations is already
accomplished. And that as a result of the previous recommendations
from the Ethics Committee, he has attended the ethics training that
was made available this session, so for what its worth, I guess two
of these seven have already been done anyway
Number 041
CHAIRMAN KOTT: I'd certainly agree with you in fact I'd even throw
in number three on the reimbursement. Since we have, at least the
majority has established that there was not -- alleged violation,
did not occur so, three, reimbursing LAA for the $76 and the
compensation for the employee doing the work basically is been
overcome by events and that is at least from what I'm hearing, the
majority has....
Number 060
REPRESENTATIVE PORTER: If I may, Mr. Chairman, there is a couple -
- one other thing perhaps within the sanctions that the committee
didn't understand. It calls for the inability of Representative
Sanders to spend committee funds and do travel without
authorization and as a matter of fact the committee that he chairs,
like the committee that I chaired, doesn't have any funds and no
expenditures can be made without leadership approval and no travel
can be done without leadership approval just like all the other
legislators. So I think that recommendation is, I guess, really
necessary.
REPRESENTATIVE KOTT: I would concur with that assessment as well
as I think all of us are aware of down here that there are only one
or two individuals who really control the purse strings as far as
travel, and certainly from his particular point of view and
perspective, it would be the Speaker's office. And that's how it
is for all of us or at least for all of us that I am aware of.
Representative Elton.
Number 107
REPRESENTATIVE ELTON: Thanks Mr. Chair. Certainly, that's what I
learned very early on, but I guess the thing that I would point out
is - is the recommended sanction was not to allow somebody to be
the gatekeeper on whether or not there shall be out of state
travel. The sanction was the Speaker wouldn't have that option to
be the gatekeeper which may be a fine distinction, but I think it
is a distinction that needs to be made. I hope the Chair will
allow me a little bit of leeway because I - I said earlier that -
that when we were debating the question of guilt that I disagreed
with the conclusion that a lot of you had come to, but I also said
during that debate that do - do I -- if I classified this as a
Class A felony or a Class C misdemeanor I would certainly be way
down at the lower end of - of - of the scale. The - the difficulty
for me is - is that in this whole process what has bothered me more
than what I had determined was a violation of the ethics code was
was how this had all escalated. How this had cost so much. And I
- And I think when we total cost we talked just about what
Representative Sanders may or may not of had to pay to his
attorney, but what it has cost the committee, what it is costing
this committee and - and that's fairly significant and - and that
has always been something that has bothered me an awful lot. And -
and so if -- I - I guess what I am throwing on the table is that I
don't think that we should necessarily say "Okay, we - we have made
a decision on guilt and innocence, therefore, we lower the
sanctions therefore we lower the sanctions." There's nothing that
requires us to lower the sanctions, especially if we feel aggrieved
as the motion by Representation Vezey that passed this body says
that we feel aggrieved about the lack of cooperation that doesn't
mean that what we do is we therefore then go in and start paring
down the sanctions. I think the sanction question is a whole new
question. And - and - and we shouldn't be limited to what we take
off here. I mean the discussion should also include, you know,
what is an appropriate sanction, not be limited by what's - what's
down here. Having said that I don't -- I mean I don't feel
comfortable, you know, suggesting a sanction. I - I - I - I think
that...
CHAIRMAN KOTT: Is that a motion to...
REPRESENTATIVE ELTON: No it's not a motion. And - and - and I -
I think that it is something that - that is -- if - if - if we use
a recent example on the national level, I mean there was a $300,000
assessment against a Congress person to cover the cost of -- to the
body that the complaint had done. I am not suggesting that there
be any financial assessment, but I am suggesting, I guess, that we
don't limited ourselves to one, two, three, four, five, six or
seven -- figure out which ones have been applied which ones may be
appropriate. I think the are a whole range of sanctions that could
committed -- considered by this committee.
Number 268
CHAIRMAN KOTT: Certainly, you're correct in - in that assessment,
however, I think when the committee made their recommendations,
they had specific sanctions in mind and they listed those
numerically here for us and I think to stray too far off course
would then have a chilling affect in the Ethics Committee in
recommending sanctions to the body if we are not going to look at
them and accept at least the ones that they put before us. And we
do have the options and I mean that's clear in the law. I think it
would behoove us to at least closely analyze the sanctions that
they've recommended and at least start from that list. If we end
up straying off the list, I think that's our prerogative.
Certainly, I think from their perspective I believe they would want
us to - to at least look over the numerical list of sanctions that
they forwarded to this body.
Number 315
REPRESENTATIVE ELTON: My short response to that is that I think we
accomplished the chilling effect on the committee by substituting
our judgement. And - and - and so I think that's already been
done.
CHAIRMAN KOTT: Representative Porter.
Number 326
REPRESENTATIVE PORTER: I - I guess I need to respond to that
because there are all sorts of review processes in the law and in
practice that recognize and appeal and the ability of the Appeal
Board to make another decision. And I, having been a member of
that committee and having, of course, been a member of the
legislature, I really resist the implication that we have had a
chilling effect on them. As a matter of fact, the first thing the
chairman of the Ethics Committee said when she presented her
positions was that we most properly did have the authority and the
right and the responsibility to review their work and to make these
kinds of judgements. I mean one could say that the Planning and
Zoning Commission should be upset every time the Municipal Assembly
acted as a board of review and turned around an appealed decision.
It happens all the time and district court and superior court
decisions get appealed and reversed all the time. Goes with the
territory if you are going to make decisions, if there is a process
of review and, frankly, without process of review, nobody would
have any due process. To say that we are in some way implying that
they made an error, that they did something wrong is absolutely not
what I feel we're doing. We are doing what we are, by statute,
required to do and that is make a review and make a decision based
on our results of that review.
REPRESENTATIVE KOTT: Thank you Representative Porter. We have
gone through a couple of the sanctions. Does anyone want to
address any of the additional sanctions? At least that were
provided to us from the Ethics Committee or have any further
comments on the sanctions? We can come back early next week and
address the sanctions if you would -- that's the will of the
committee. We can come back with a working document with the
remaining sanctions left that we determined are still appropriate
to address with an option to include or to add, amend, change. I
think perhaps in the late hour, that may be the best course of
action this particular time, unless anyone has any suggestions I
know we have been at it for a number of days and a number of hours
and I appreciate everyone being here. This is an important matter
it is probably one of the most important things that we'll address
this session, although there are probably others on equal terms,
but certainly this is one of the most important issues that is
before us. And certainly it will the most important issue before
the Rules Committee. So if there are no further comments.
Representative Phillips.
Number 490
REPRESENTATIVE PHILLIPS: Mr. Chairman, I would just have one more
comment to make. I would request that at some point in time that
you would schedule a Rules Committee meeting so that we, as
members, could maybe work up a working draft of the rough draft of
those areas of the ethics law that -- from the - from the
discussion that we have had here the last three days we feel should
be addressed by a committee that is going to be working on the
revisions. We could just identify those areas of concern that we'd
like to have included.
Number 512
REPRESENTATIVE PORTER: I would concur with that and ask the
consideration of input from the Ethics Committee, themselves, that
we have a laundry list of areas that they have found (indisc. --
paper ripping) in the law and certainly would be one of the best
sources of....
Number 528
REPRESENTATIVE PHILLIPS: And I think they have the - that just
about ready. They had one draft and then they are waiting for the
new members to come on with their next draft.
Number 533
REPRESENTATIVE ELTON: I don't know if the maker of the motion
would consider a - a small change. I mean I don't think this is a
bad idea. I especially appreciate Representative Porter's
suggestion that the Ethics Committee could be involved. I wonder
if it might not be easier for that task to be accomplished by the
Judiciary Committee.
Number 551
REPRESENTATIVE PHILLIPS: I didn't make a motion Representative
Elton. I asked the Chairman to call another Rules Committee
meeting so we could put together a - a draft of all those points we
want. We have another plan for how we are going to do it. It
probably will be Leg Council that will -- since it is made up both
House and Senate members or it could be both Judiciary we haven't
determined that yet.
REPRESENTATIVE ELTON: Okay, so you're not suggesting that we...
REPRESENTATIVE PHILLIPS: All I want us to do is itemize.
Number 568
CHAIRMAN KOTT: And at some point that is going to be my intent
perhaps along with the recommendations that this committee sends to
the entire House floor. It's also a recommendation accompanied by
a list, a laundry list, of those areas that I believe are
troubling, that have identified by members in this committee as
well as members of the Ethics Committee that's been before us. And
there's other issues that they certainly didn't discuss that they
have on their plate that they would like us to address. And my
recommendation would be that that particular area be then referred
to Leg Council since it can be taken up by members of both the
House and the Senate, and they can address those issues and once
they formulate some kind of conclusive (indisc) on the matter they
can forward it back to the respective Rules Committee for
introduction.
Number 618
REPRESENTATIVE ELTON: I - I think that is a good idea. I'm
comfortable with that approach. I - I mean if we're going to do
that, one of the things that I'd like added to the laundry list for
consideration is consideration of either a change in the Uniform
Rules or a change in statute that allows appeals to be held only on
the record. That would encourage cooperation at the lower level I
think and so I's appreciate it if that's added to the list. And -
and then could I get some -- I - I have a feeling we're getting
close to winding down. Could you clarify for the body or for the
Committee perhaps I mean what we've done so far. My understanding
is that we have passed two motions. Both of those motions will be
taken to the full body for their consideration. Is that what the
next step is?
Number 655
CHAIRMAN KOTT: Essentially that's - that's correct. What I will
have staff do is to basically reconstruct what occurred this
evening, provide some background, the facts supports the case and
then address the - the issues that we've address here this evening
to include the two motions that were made and adopted by the
committee for forwarding to the entire House as well as the issue
dealing with sanctions. I will include the remaining sanctions and
I know we didn't really make a motion but it seemed like, at this
point, since we are not forwarding that particular aspect, at this
point, to the entire House, we did at least address some of the
issues in the sanction part of the - the equation and eliminated
some of those so I will leave the ones and make mention that these
ones had been eliminated with the following yet to be decided upon
and also leave open the option of including additional sanctions.
Representative Porter.
Number 709
REPRESENTATIVE PORTER: I guess I don't understand. Are - are we
gonna come back and meet to resolve those issues or are we sending
what we have done to this point as the final decision to the main
body.
Number 21
CHAIRMAN KOTT: Well it was my understanding that what we would end
up doing, at least from the very beginning, discussions would come
back. I'd give you a basically a working draft that we can either
accept or reject as well as to then address the remaining areas
that we have not firmed up. We haven't narrowed this down to the
sense that we can...
Number 740
REPRESENTATIVE PORTER: I guess if I may to that point, I would feel
uncomfortable if we couldn't come up with a specific recommendation
and...
UNIDENTIFIED SPEAKER: Me too.
REPRESENTATIVE PORTER: Obviously the House has the right to
accept, reject or modify that, but at least they'll have specific
recommendation and not the requirement to try and get through what
we've just gone through.
Number 760
CHAIRMAN KOTT: Yeah and that's - that would be certainly be my -
my intent is we get down to the sanctions and come up with the
appropriate sanction as we see it, if it is the will of this
committee to impose a sanction at all. Again, it looks like we are
somewhat at loggerheads here and we're -- we've reduced the list to
three or four remaining, but it seems like we're - we're kind of at
an impasse and just unsure of ourselves so I thought perhaps a
break over the weekend will give us an opportunity to again rethink
the issues over and maybe come up with something additional to - to
the ones at least on the list. But I would like to but I would
like to at least address the sanctions on the list, to accept or
reject, and then move on to either another one or amend one of the
- the existing ones. Representative Williams.
Number 801
REPRESENTATIVE WILLIAMS: I have a question. You mentioned two
motions I thought we only had one motion that passed.
REPRESENTATIVE PHILLIPS: That's what I was thinking too. We had
the one, Vezey's motion, that passed. But we did take a vote
earlier what was that on?
REPRESENTATIVE WILLIAMS: That was Representatives Elton's...
REPRESENTATIVE PHILLIPS: No, before that or was -- did we only
have two votes?
CHAIRMAN KOTT: That's right, there was there was two votes taken.
One failed. Yeah, I'll address both - both the motions, but the
one motion of course is the substitutive one. Representative
Elton.
Number 826
REPRESENTATIVE ELTON: So - so are you planning on taking both
motions to the floor or are you taking -- planning on taking one
motion to the floor so - so...
Number 834
CHAIRMAN KOTT: No, both motions will be indicated in the draft
document with one indicating it passed and one indicating it
failed. The final draft, as I see it, will recommend in the
findings that we have found, as a committee, that there were no
violations and we're still at the point determining the sanctions
based on Representative Sanders unwillingness to cooperate.
Number 863
REPRESENTATIVE ELTON: I guess the observation that I have, Mr.
Chairman, is something I'd like to -- you as the Chair to consider
over the weekend as you and your staff are working, and we are not
working on this, is - is that I - I think that there is some
expectation on the part of the body that the body sent to us the
decision by the Ethics Committee is looking for the recommendation
from this Ethics Committee back to them so they can say whether or
not they agree with this committee.
REPRESENTATIVE PHILLIPS: The Rules Committee back to them.
REPRESENTATIVE ELTON: The Rules Committee, yeah, the Rules
Committee back to the floor so they can see -- say have an
opportunity to say whether or not they agree with this committee on
the issue of guilt or innocence. So I -- my recommendation is - is
that any report out of the Rules Committee be a - a - a - a report
and either one -- and either two or three parts. The first report
out -- the question -- the recommendation on guilt or innocence.
And the second part out would be the question of lack of
cooperation. and you could even have a third, but you might want to
combine it with the second, lack of cooperation and then sanctions
for the lack of cooperations. It could be combined, I guess, into
just having two and that would be my recommendation. I would
appreciate it if you could...
Number 922
CHAIRMAN KOTT: That is exactly the road that we plan on taking and
if I failed to make myself clear, I apologize but that is the exact
route that a we are perusing. Representative Williams, do you have
a comment? Representative Nicholia
Number 933
REPRESENTATIVE NICHOLIA: Mr. Chairman, just some statute
clarification on the laundry list. Where is this laundry list
gonna go and how is it going to be used and will this also go to
the floor with - with the recommendation?
Number 945
CHAIRMAN KOTT: It will be part of a...
REPRESENTATIVE PHILLIPS: (Indisc.) laundry list where the Rules
Law could be changed. That'll come much later.
CHAIRMAN KOTT: Well actually that would a I - I'm, with the
concurrence of the committee, I would like to at least forward that
particular document as -- and if it's conceivable that we are in
accordance with a process procedures involved here, I'd like to
send that to the Speaker and subsequently to the floor. That
particular portion wouldn't necessarily have to go the floor, but
certainly to the Speaker that we have addressed certain number of
issues and attach it either as an amendment or an addendum to the
report, separate from the report, but certainly attached, if you
will, with that. It may not -- we'll have to check on that it may
be just a separate document that would be forwarded...
Number 993
REPRESENTATIVE NICHOLIA: Okay that's what I'd like you to do is
get a legal opinion somewhere (indisc.--coughing).
Number 999
CHAIRMAN KOTT: Yeah, and again, I am not sure of the process here,
but certainly we'll - we'll conform to - to standards, acceptable
standards. So if you have any a items that you would like to see
included we would ask that you forward those on to my office.
We'll make sure that they're they're part of the package. Further
comments on this evening? I, again, appreciate your attention span
and wish you and bid you a fair good night and a good weekend and
we will recess. More than likely it's going to be Tuesday
afternoon before we are going to be able to get back. We do have
a one of our congressional delegation members in town on Monday
which may preempt this from occurring, but it is still the plan, as
I mentioned earlier on this week that we would forward the
recommendation from this committee to the entire House by midweek.
So we'll try and get that out to them on Wednesday. We'll in
recess.
[Chairman Kott recessed the House Rules Committee meeting at 9:52
p.m.]
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