Legislature(1997 - 1998)
01/30/1997 06:07 PM House RLS
| Audio | Topic |
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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 30, 1997
6:07 p.m.
MEMBERS PRESENT
Representative Pete Kott, Chairman
Representative Irene Nicholia
Representative Al Vezey
Representative Gail Phillips
Representative Brian Porter
Representative Bill Williams
Representative Kim Elton
MEMBERS PRESENT
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 Legislative Ethics
Decision H96-02
WITNESS REGISTER
MARGIE MACNEILLE, Chair
House Subcommittee
Select Committee on Legislative Ethics
P.O. Box 101468
Anchorage, Alaska 99510-1468
Telephone: (907) 258-8172
SUSIE BARNETT, Professional Assistant
Select Committee on Legislative Ethics
P.O. Box 101468
Anchorage, Alaska 99510-1468
Telephone: (907) 258-8172
ACTION NARRATIVE
TAPE 97-3, SIDE A
Number 001
CHAIRMAN PETE KOTT called the House Rules Committee meeting back to
order at 6:07 p.m. All members were present.
CHAIRMAN KOTT: This evening, we will continue the hearings on the
Ethics Case H96-02, also known as Re Sanders. We have invited two
members from the Ethics Committee to be with us this evening,
Margie MacNeille and Susie Barnett. We really appreciate you
taking the time from your schedule. I'm sure you probably had
other things that you could have done this evening, and we
certainly appreciate you coming to Juneau and offering us some
information regarding this particular matter. What I would like to
do is, as I have done with previous individuals who have testified,
is to ask you to raise your right hand, and we'll do it jointly.
Do you solemnly swear to tell the truth, the whole truth and
nothing but the truth about the information you're about to give to
this committee, so help you God?
MARGIE MACNEILLE, CHAIR, HOUSE SUBCOMMITTEE, SELECT COMMITTEE ON
LEGISLATIVE ETHICS: I do.
SUSIE BARNETT, PROFESSIONAL ASSISTANT, SELECT COMMITTEE ON
LEGISLATIVE ETHICS: I do.
CHAIRMAN KOTT: Thank you. And for the record, would you initially
state your name and affiliation.
Number 120
MS. MACNEILLE: My name is Margie MacNeille. I am here as the
chair of the House Subcommittee of the Select Committee on
Legislative Ethics. With me is Susie Barnett, who is our sole,
loyal and wonderful staffer. And I'd just like to introduce to the
committee, also here is Shirley McCoy, who is a public member of
the committee as well. I think a lot of you know her. She lives
in Juneau, so she didn't have to make the trek to come down here.
Number 177
CHAIRMAN KOTT: I know this is a thankless job that you're in, so
on behalf of the committee, and I guess the entire legislature, we
want to say thanks for your efforts in this matter and every other
matter you've been involved with. What I would like to offer is
the opportunity for you to make some opening remarks, and I think,
with the indulgence of the committee, we will just open it up for
questions from the committee and get right to the issues.
Number 222
MS. MACNEILLE: Okay. If -- I would thank you for the opportunity
to make some opening remarks, and I hope -- I hope we can get
through them promptly enough for you all to still be awake. I want
to thank the committee sincerely for the opportunity to come and
talk to you. Thank you for choosing to, as the -- the House --
choosing to refer this to Rules and have a hearing on it, because
this is the first time that an Ethics Committee recommendation for
sanctions has come to the House, only the second time that this
Ethics Committee has made any recommendations. And I think it is
very appropriate for the House, through a committee, to assure
itself that this has worked the way it wanted it to go. Under the
Alaska Constitution, Article II, Section 12, each house is the
judge of its own members' qualifications. To me, that means that
you members of the House are the final authority in this matter.
And you are the people responsible for making the decision, and you
need to know what -- what information you require in order to make
that decision. In 1992, as -- as I remember it, among a period of
concern about legislative ethics, the existing model of an ethics
committee which was dominated by legislators was changed to one
where the initial steps of an ethics investigation were given to an
ethics committee with mostly public members, because the -- that
committee was meant to be a nonpolitical body. That committee was
meant to make an independent decision which would not be considered
tarred, in any way, by a partisan political brush. It -- the
thinking, as I remember, was to give credibility to the process,
give the legislature some way to deal with the situation without it
looking as though it were just a question of power politics. Now
that process comes to you, and I think it's important for you to
understand that process and to assure yourself that the Ethics
Committee is, in fact, the nonpolitical, independent, nonpartisan
body that it was designed to be. First, I want to deal with the
question of political bias of the committee. And here, I have to
deal with personal issues first. And there are things that will --
there are -- I will get angry tonight, and I apologize for that,
and I want to say to begin with that I'm not angry at you. And the
first concern of mine is the allegations about a conflict of
interest of mine because of my husband and the work he has done for
the state. I am proud of what my husband has done for this state.
In 1989, I was appointed to this Ethics Committee. In 1990, my
husband, Julian Mason, began work on the state royalty and tax
settlements under the Cooper Administration. He brought in $290
million in settlements. In '92 and '93, there were settlements
with BP and Exxon, and their tax settlements imposed between two
and three billion dollars. Now, my husband didn't do this all by
himself, no doubt, but I feel that he was instrumental. That was
under the Hickel Administration and the attorney general at that
point was Charlie Cole. In 1994, my husband began work on the
mental health settlement which was finally settled in a special
session of this legislature and then tried in the -- in the winter
of that year. Then, later on, under the Knowles Administration,
he's undertaken some role in the subsistence issues. When and how
money came to his firm on behalf of the service he has done for
this state, I don't know. It's not my business what their billing
situation is. All I can tell you is, if you care when or how that
money came, you need to look at when the work was done. My husband
assures me, and it's my recollection, that the bulk of work he did
was under the Hickel Administration. And how does this relate to
me? What does this have to do with my role on this committee?
First, you should know this is old news. I raised this issue with
the legislature repeatedly. At my confirmation hearings in 1993,
the first time this committee was constituted in its current form,
I discussed it at my confirmation hearings on January 12th, I filed
a letter asking for an advisory committee -- advisory opinion from
this committee about whether there was a difficulty, my being on
the committee with my husband having -- doing the work he was
doing. In 1995, I asked again for an advisory opinion on the same
issue. And both times, those -- the Ethics Committee, without me
participating and without me being in the room, decided that there
was no problem. Secondly, I've been on this committee since 1989,
an ethics committee in one form or another. I've been confirmed by
this legislature four times. I've worked with lots of legislators
on lots of cases. If I were in some form a lackey of an
administration, I think you might have noticed it by now. I was
not beholden to the Cooper Administration. I was not beholden to
the Hickel Administration. I am not beholden to the Knowles
Administration. And it's difficult for me not to resent that
implication. I am not a robot here carrying out some governor's
orders. I want to also address the question of whether I had
personal revenge motives against Representative Sanders because he
voted against me in a confirmation hearing. I didn't even know
that he had done that until well into this particular proceeding
this fall. As best I can find out, I didn't know it until a -- a
letter that his attorney wrote to the master, Michael White, on the
16th of October. But it doesn't matter 'cause I didn't care. I
don't care why people would vote for me or against me. There are
all kinds of reasons, many of which may be trivial, some of which
may be significant. It is not a problem for me. I was not after
Representative Sanders because of that. Finally, this is a
committee. It is ludicrous to me to suggest that I could persuade
six committee members to violate their legal obligations for some
nefarious purpose of mine. The members on this committee come from
all over this state. And if you know Cynthia Toohey, or Joe
Donohue, or Shirley McCoy, or Ed Granger, or Edith Vorderstrasse,
you know how strong-willed these people are. You know that they're
not sheep that I led astray, and they'll be glad to tell you so.
You confirmed them. You chose people who are not politically
active in a partisan way. They're active in their communities but
not on a partisan basis. Once we're on the committee, we're
politically neutered. We can't post yard signs. We can't go to
fund raisers. We can't give money. We can't do anything. And we
don't. The people on this committee work hard for no pay at
considerable personal sacrifice. They don't do that for some
political reason that they've hidden. I want to try to get off my
high horse here for a minute and -- and go through the process we
went through so you understand why we did some of the things we
did, not out of political motivation, and so you can assess some of
the issues that Representative Sanders raised yesterday. And to do
that I wanted some charts and time lines. I hope they'll be of
some help.
MS. BARNETT: Would you like these handed out?
MS. MACNEILLE: Yeah. We're recycle. This chart is the same chart
that some of you may have seen at the [indisc.--simultaneous-
speech].
REPRESENTATIVE PHILLIPS: I can't see it the way it is.
MS. MACNEILLE: We had a lot of trouble figuring out where to put
it, so that anybody could ...
MS. BARTLETT: Here, you don't have to read.
Number 750
CHAIRMAN KOTT: For the record, we will label this particular
handout Exhibit E. It's the case review H96-02.
MS. MACNEILLE: What I want to do with both this chart, which is
the generic chart of how the complaint process, and the time line,
kind of walk through what we did. And I think one of the concerns
is that we, the committee, in some way changed the timing of the
process for some political purpose. And I hope when this is
through, you'll see why we did what we did and -- and with what
timing. The statute -- the Ethics Committee statute sets out a
series of steps that we have to go through, and we also have
procedures adopted which define some of those and set some time
lines as well. The first thing that happens when a complaint comes
in to the little mailbox up there is that it's checked to see if it
meets the surface requirements for a complaint. Is it notarized,
that kind of thing. And then -- and that's done at staff level.
The committee doesn't see it -- the subcommittee committee, let's
say, doesn't see the complaint at that point. The next step is
that it comes to the committee to say if true, if we just assumed
the facts here were true, would there be a violation. And then you
adopt -- the committee -- if it's yes, it adopts a resolution for
scope of investigation. Now, if you'll look at this, on this
complaint, we received it April 19, 1996. So -- and it appeared to
be okay on its face. It met the -- the initial statutory
requirements. The question was when were we going to schedule a
committee meeting to go to the step of, if true, is it a violation.
Well, we're looking at the last three weeks of session. In my
experience, that's never been a good time to try and schedule a
committee meeting with legislators in it. In scheduling this
committee, it's not easy. We have people from all over the state.
But most important, we have legislators, and you all have a
different life schedule than the rest of us. You have a very
intense period of work, when you're really busy with other things,
understandably, to you more important than -- than our committee
meetings. And then you have the summer off to make a living or,
you know, to take a deep breath, and you're not all that interested
in coming to an Ethics Committee meeting. So it's always tough.
In this case, it was even harder because then you had the special
session. So we worked it so we thought we could have a meeting
June 7th, the day after the last day of session, and our
legislative members would be available. In fact, due to
Representative Toohey's situation on June 7th and this -- this
special session, we couldn't have the meeting. It was cancelled.
We were unable to reschedule that meeting until July 24th. And
that is not a question of deliberate timing on our part. That was
the question, it's the first time we could get us -- we could
schedule all of us at a meeting, or think we could. Let me make
clear that during this proceeding, Representative Toohey was the
person, the legislator who made the quorum. Representative Mackie
participated in one meeting but not in the others, and he's -- he
was busy on the campaign trail and other things, and to come to us
from Craig is -- to Anchorage from Craig is a -- a problem, a
logistics problem. So, July 24th we went to the second step, which
was adopt a scope of resolution, if that's what we were going to
do. We met and we did. The next phase is investigation. In this
instance, we asked our law firm, Bogle and Gates, Mike Spaan, I
don't know if many of you are familiar with him, but he was the
U.S. Attorney under Republican Administration, to -- to supervise
the investigation. And this chart here shows, in very summary
form, some of the things that went on to try and get that
investigation going. Because by statute this phase is
confidential, we have not given you any kind of detail here,
although some of these documents, I think, might have come -- or
discussions of this might have come from Representative Sanders.
There is a more detailed version available, but we certainly
couldn't do that without Representative Sanders waiving the
confidentiality. The next thing that happens is, after
investigation, we have to look at the results of the investigation
to see what the story is. And then we call that the probable
cause. We can either say, yes, there's probably cause; no, there
isn't. And that meeting was set on September 9th, for September
23rd, which was another time we were able to get everyone together.
At that point, we had some indication that Representative Sanders
was eager to tell his side of the story, which he had not so far.
His attorney attended the meeting but did not make a presentation.
At the meeting we addressed the question of whether there was
probable cause, and at that -- once you -- if you determine there
is, then the committee has to make a choice, by statute, between
corrective action or issuing formal charges. In this case, the
committee determined that some -- that formal charges were
appropriate. And those formal charges were issued September 24th.
They were sent and received September 26th. Then you get to
October, where the fun begins. So, to -- to recap here, the
committee has seen the complaint once when it decided whether or
not to investigate and once again on the probable cause
determinations. The way our committee operates is that the
material is there for securing and then we give it back to Susie.
It's not something we take home and dwell over. The -- once --
once we've issued the formal charges, we issue the summons, the
complaint. Our procedures required us to hold a hearing within a
20- to 60-day window: not sooner than 20 days, not later than 60
days after formal charges were issued. On October 1st, Susie sent
out a request to all of us for our calendar information for the
months of October and November and December to indicate our
availability. And those came back promptly. And at that point,
somewhere in the second week of October, it became clear to me that
we had to have this hearing before November 19th, and here's why.
Ed Granger, a Republican member of our committee, was going first
to Boston and then to South Africa on the 19th of November; he's
still there now. If we were to have this hearing with Mr. Granger
present, we had to have it before the 19th. Otherwise, we'd be
into this year, and the existing members on the -- of the committee
would be gone. Cynthia Toohey and Jerry Mackie would no longer be
on the committee, since she was not running, and now Senator Mackie
was hoping to move up in the world, if that's what it is, I ....
And so, we were stuck. We had -- we had to have it completed by
November 19th, before Ed left. I think that if we'd chosen to have
this hearing without Ed there, you'd all be looking at this in the
-- you would be just as angry with us. I don't know. So that's
the story of how we came up with the hearing date. The time that
members were available that we could have the hearing. The
decision was made, as you can see on this time chart, October 10th.
We sent a letter to Representative Sanders' attorney, Mr. Syren,
and to Mike Spaan in his capacity as representing the -- sort of
the investigative or prosecutor side of the committee, on November
14th and 15th. That decision was not made when Judge Murphy issued
some kind of stay. That decision was made October 10th. That
week, Representative Sanders, who had not answered the formal
charges, sent through his attorney a letter to the subcommittee
objecting to the summons for the charges and raising a variety of
procedural concerns. And also that week, and it doesn't show on
here, we didn't put everything on here, we started getting
discovery requests. I got one on the 8th and one on the 9th,
voluminous discovery requests. And people started asking for us to
release public documents. Let me talk -- this is -- goes to the
question of who is Michael White and what's the story about the
hearing officer. The only -- the hearing we had before, in the
Jacko matter, we had used a hearing officer to run the hearing so
that the chair, in that case, Joe Donohue, could have a hearing and
not -- listen to the evidence and not have to rule on procedural
motions and things like that. And that was our intent also in this
case, if there was going to be a hearing. That week we didn't have
an indication from Representative Sanders whether or not a hearing
was going to be required. But we were piling up these -- these
motions and challenges to various things the committee had done.
We had two choices: I could rule on them myself or I could get
someone else, a lawyer who is a litigator, a person who had been a
judge, to deal with this. Now, you know, it's no secret to me that
Representative Sanders, you know, gets upset when he sees my
signature. I was not going to be the person to rule on these
things, especially because some of them were about interrogatories
addressed to me. So I decided we would use the procedure we have
for selecting a hearing officer. We pulled the list of 11
potential masters and officers -- hearing officers that we had used
in the Jacko matter and sent them out to -- to Representative
Sanders' attorney and to Mike Spaan. The normal procedure is, when
a master is appointed or [indisc.] thing, that a list goes out,
people strike off the people they don't like or, you know, give
reasons why certain people should be recused, and say, well, here
are some people you should use. And that's a reasonably prompt
process. What we heard in response from Representative Sanders'
attorney is that he wanted to wait two weeks while he interviewed
the candidates. That kind of delay, given our necessity to have
the hearing on November 14th, was not going to work. Mr. Spaan
recommended that we use either David Stewart or Peter Partnow as
masters. Both people -- Mr. Stewart served us beautifully in the
Jacko matter, and I would have loved to have used him. He was
unavailable on vacation. Came home, opened the mail, there was a
fund raising letter, a political fund raising letter, and on the
bottom, among the list of names were David Stewart and Peter
Partnow. I thought, Oh, great, these are the last people I'm going
to choose because there's going to be some allegation that they
have some political axe to grind. So I took them off the list and
went with Mr. White. Mr. White was a prosecutor for a long time.
He was a district court judge at, I believe at the same time as Mr.
Stewart, and a person who I knew to be a competent litigator and
someone who could handle the hearing. So I picked him. As far as
I know, the last personal contact I'd had with Mr. White before
that time was in 1988. He and I served on a bar committee
together. It was not some effort to pick someone with a political
axe to grind. Then from there we moved -- we moved towards the
hearing. Fortunately, Mr. White took over a continual barrage of
procedural motions from Mr. -- from Representative Sanders'
attorney, from Mr. Syren. That -- that's -- that was what we hired
him to do. Mr. Spaan, Mr. Syren and Mr. White, have at it. That
was fine as far as we were concerned. Orders came out. Not a
problem. We had, on October 22nd, a committee teleconference about
procedural matters. I believe at the same time, I'm not sure
exactly when it was, I guess it was October 21st Representative
Sanders filed, in superior court, a request for stay of
proceedings. And Judge Murphy was assigned. Judge Murphy is a
district court judge sitting as a superior court judge because they
were short of judges at that time. This court case raised an issue
that I think is of really central importance to the legislature,
and that's the question of whether the superior court has any
business telling the legislature what to do on disciplining its
members. To me, the Alaska Supreme Court has said in earlier
cases, that it is the legislature's job, under the constitution, to
deal with its own internal matters. And I think that's an
important distinction to be made. And so the committee responded
to Representative Sanders' efforts to get the superior court to
intervene in this proceeding. There has been some discussion from
Representative Sanders that we, in some political way, went to
change the judge from one person to another. Now I want to talk
about how that happened in case there's anything I can do to clear
that up. When I heard that Judge Murphy had been assigned to the
case I knew that Judge Murphy is a district court judge. The kind
of case this is, which is -- can -- might be characterized as an
appeal -- oh, it'd certainly have to do with requesting an
injunction, is the kind of case that belongs in superior court, and
without any disrespect to Judge Murphy, I wanted a judge who had
had experience in those particular kinds of issues. When you file
a notice for change of judge you have no idea who you're going to
end up with. You can end up with any judge that's -- you know,
whoever comes up next. I don't even know what the process is the
superior court goes through, but you have no control, and who we
would have gotten next, we would, from our point of view, we were
stuck with. We had no idea that Judge Eric Sanders was going to
end up with the case. For all I knew, he and Representative
Sanders were cousins. But the -- at that point, once he was
assigned to the case, if Representative Sanders had felt that Judge
Sanders was not able to give him a fair hearing, he could have
filed a change of judge and we would have ended up with whoever
else we would've [sic] ended up with, and the committee would have
had no further opportunity to change it. So I don't think it's
appropriate for this committee to think there's some political
motive that we were angling for some kind of Democratic judge to
help out here. That is not what happened, and then we had no
control over who we ended up with. You know, I was looking for
someone who had experience in these things, but I didn't think I
was going to get the freshest judge on the bench, either. There's
-- in the event Judge Sanders agreed that the superior court did
not have any business telling the legislature how to address
qualifications or -- or discipline of its members, and meanwhile
the hearing preparation went on. And we had the hearing November
14th and 15th. All the public members and Representative Toohey
were present. Representative Mackie was unable to attend, and, you
know, then we rendered a decision. Before I get to that, I want to
address the concern that the committee is both the accuser and the
judge. First, you need to look at what the actual level of
committee member involvement in the case is. As I said, we've
looked at this three times. We've seen the complaint three times.
We've looked at it at the time of making the resolution to
investigate, and we looked at it at the time of probable cause, and
we looked at it at the hearing. We didn't take the documents home.
We weren't involved in the investigation. We weren't involved in
the prehearing preparation. We weren't in control of what
witnesses were going to be called or the presentation of the case.
That -- I don't mean to blame it all on Susie, but that was Mike
Spaan's job and Susie's job, and we carefully observed the line
there. I didn't know what she was doing as far as the
investigations were going, and I didn't want to know. I wanted to
see what was going to happen at the hearing. I think committee
members -- we all have kids, you know the first story you hear
isn't necessarily the whole story. And I think we can keep an open
mind about -- you know, here's what we have now, but what turns out
to be the evidence in front of us is something entirely different.
There's no pressure on us, or among us, to say that once we've
brought a charge we have to carry it out or else we'll look dumb.
If we were worried about how we looked we wouldn't be doing this.
There's no -- there's -- in the Jacko case, as I recall, we brought
a number of claims. And in the end, I think maybe only two of
those proved out. And we didn't feel like that had been a failure.
We felt like we'd done what we needed to do. The model of using a
commission or committee to do both the charges -- the
investigation, the charges and then the hearing, is one that's used
elsewhere. And there are two examples that I could find by running
through my book real quickly without doing legal research on this
is, as I understand, the APOC committee -- the APOC, the first
stages of investigation are done by the staff, but the commission
itself does the probable cause determination and then it does the
hearing. The Judicial Conduct Commission does all the stages.
They do investigation, they do probable cause and then they do the
hearing. The alternative to that, and I'm -- I'm not opposed to
it, but I think an alternative to that is something a lot more
expensive than what we have now. This Ethics Committee is a
shoestring operation. We have a part-time staff. We keep telling
her she's part-time, although she doesn't get to work part-time;
she has to work all the time, and then volunteer members, and we
don't get paid. We -- you know, we run on practically nothing. If
you want to have independent staff do investigation, or if you want
to go to an executive-director-with-staff model that makes a
recommendation to a committee that meets once in awhile, it's going
to be a lot more expensive. You have the weigh the benefit of that
with what we're talking about here. If you look at the history of
violations or corrective action or things like that in this Ethics
Committee, this legislature is clean. I grew up in Maryland. I
mean, you know, there's a history of minor violations, and if you
want to put a lot of money into a more elaborate procedure, fine,
but you have to decide whether that's going to do a lot for the -
or do enough additional, for public and legislative faith in the
process. Now, I'm close to getting to the merits. The first thing
I want to say is, listening to Representative Sanders yesterday, I
thought it was very unfortunate that he never made these arguments
or explained himself to us. The first time we heard this was on
Gavel to Gavel yesterday. How much better off we all would have
been if he could have admitted to us that he wrote the letter, and
explained why, instead of us having to go through -- Susie and Mike
Spaan went through all these hoops and things to try and
demonstrate to us that the letter came. And if, instead of going
through this taking the Fifth Amendment, going through this
evidentiary 'round-the-corner stuff, the lawyers could have debated
the distinction between non-governmental and legislative. We could
have had a hearing on the law or the questions of policy instead of
whether the Fifth Amendment applied. But here we are. Our
committee did the best it could with the evidence we had in front
of us. I'm afraid that what we've brought to you is a circus. We
had a lot of wild allegations about the committee. We've had a
committee defending its every decision, [indisc.] here. We have
public attention on this way out of proportion to what happened.
And I'm sorry, but it wasn't because we wanted it that way. We
have to look at Representative Sanders' role in creating that. I
don't think it's fair to suggest that if this committee or the
legislature finds a violation for Representative Sanders here that
you're all condemned, to raise some sort of specter of mass
condemnation of innocent letters you all have written. The
committee is on record in favor of constituent communication as
being a legislative function. We've said that it's all right to
use staff time to address Christmas cards. We've said it's okay to
write letters to high school graduates. I don't know about the
people cleaning up Campbell Creek, but -- you know, it's -- that is
not the problem here. Listening to Senator Stevens, I couldn't
think of a more appropriate thing for a member of the legislature
to do. The Ethics Act draws a line between governmental actions
and political party, or campaign activities. This letter is on the
political party side of that line. This letter, that we're talking
about here, thanks Republican residents in Representative Sanders'
district for their participation in an exclusively Republican party
event. It's not even a part of the state candidate selection
process. It wasn't voting at a primary. It wasn't being a
delegate to a convention. It was participating in a straw poll on
a presidential candidate influence situation. This is a party, a
partisan purpose, not a government purpose. Now, Representative
Sanders could certainly have written this letter without any
complaint from us if he didn't use state resources and money to do
so. But what he did use is two staffers significant time. I think
it's important to remember here that we're talking about staff time
in addition to postage. He used the state letterhead, the
authority of his position in this legislature. And if you
remember, Senator Jacko got himself in trouble for using his
position by -- just by calling up and saying, "Hello, I'm Senator
Jacko", it's not even a question of letterhead. And he used his
accountable office account. The question that I think the
committee and the -- the Rules Committee and the legislature has to
consider: Is it all right for a legislator to use his office or
position, his employees and the state postage for a political party
purpose. In the committee's view, the statute says no. It says
you can't use it for a non-governmental purpose. Now, the
distinction that Representative Sanders raised between the
legislative purpose language we used in our discussion in the -- in
the decision is a valid and interesting issue. And I would love to
have heard debate about it at the hearing. But we think here, in
this case, that distinction between those things is without
importance because a party purpose is not a governmental purpose.
Representative Sanders raised the point about private benefit. The
statute reads, "non-governmental purpose or private benefit." And
he's -- in his view, the question was; did that private benefit
only mean his financial benefit. The committee has found to the
contrary in the past. We found Senator Jacko in violation for
using his position, not staff or postage, his position to attract
female attention, not a financial benefit, let's put -- say it that
way. I think also that you need to look at charges two and three,
which are on page 5 of the decision, which I put a paper clip on so
I could turn to it right away. And now, let me just read the
statutes here for you. In charge three, Representative Sanders
required an employee to assist in political party or candidate
activities, campaigning or fund raising on government time. I
think that -- I don't know how you -- how you individually feel
about governmental or non-governmental purpose, but under this
section of the statute, which is a separate section, the question
is, isn't this a political party activity. And to the committee's
way of thinking, it was. Let me also address the questions of
sanctions here because I know there's concern that the sanctions
seem inappropriately severe given the size of the -- the nature of
the violation. There are a couple of things to think about here.
First, the committee had no evidence from Representative Sanders
about why -- what he thought, what his situation was, whether he --
you know, which part of the handbook he read, or anything like
that. He chose to tell us nothing and we were bound to deal with
the evidence we had before us. What we did see was a pattern of
not only failure to cooperate with the committee but an effort to
make the committee go through as many hoops and to spend as much
money as possible, as far as I could see, in efforts to keep the
committee from functioning. We looked at the prior cases that he'd
had. In the first one, Representative Sanders wrote a letter to us
in response to a request for corrective action, and in his
newsletter to his constituents, he misrepresented what the
committee had done. He did it again yesterday. If you read that
decision, you see that it was not just a question about him using
his -- the note pads, but a question of his using a state employee
for his -- to conduct his personal business, to solicit business
for his print shop. That is not the story that Representative
Sanders tells. So we imposed corrective action in that case. We
got a letter, and then we got, essentially, renunciation of that
letter. And then in the second case, which was a really minor,
minor case, a violation, but tiny, we got a more grudging letter of
-- that he would be happy to come to our training, he was glad we
invited him. So now, when we had to look at our -- look at
sanctions, we knew the first thing we weren't going to do was we
weren't going to ask for a letter. We'd been that route a couple
of times and it wasn't working. And we thought about -- that what
was happening was essentially an injury to the legislators. We
were concerned that not only had Representative Sanders spent some
amount of state resources, state money, or the public's money, on
what we thought was a political party activity, but that he had
brought some disrepute on you all. And so we thought an apology to
the legislature would be the way to deal with the letter issue; the
question of taking responsibility for his actions. The
reimbursement, if we had simply asked for reimbursement alone, we
were in a situation of allowing someone to buy, or permit to
violate the -- to violate the Ethics Act. Oh, gee, I'll violate it
and then I'll just pay the money and it'll be all right, and if
they don't catch me, I'm fine. So, that alone was not a sufficient
sanction. We put in the -- the question about the sanction about
using the accountable account or non-accountable account as a
preventative matter so we wouldn't have to have that problem come
up again. And we asked that he have a written policy about the use
of staff time. That's a standard thing we've done in corrective
actions, and so forth. So, we came down to -- those were sort of
standard corrective actions activities. We felt that given the
lack of cooperation and the prior cases on misuse of state
resources, some other punitive sanction was appropriate and these
are the two we came up with. I have a concern that my appearance
here tonight, and my discussing with you frankly, what went into
our decisions is bad precedent. I think that exhaustive inquiry
into individual committee members and analysis of decisions made
time and again, if it were done again, would damage the process;
would drive off committee members and destroy the independence that
the Ethics Committee has and that you all rely on. I don't want
any other chair of any committee to have to do this. I think
there's only one other thing I -- I want to say in my remarks. I
appreciate the committee's indulgence for letting me talk so long.
And this is back to a personal point. I am not Jewish, but there
are people dear to me who are, people whose -- who have lost their
families in Germany and Eastern Europe under the Nazis.
TAPE 97-3, SIDE B
Number 001
MS. MACNEILLE (continued): ... think to characterize anything that
goes on in this proceeding, or in this legislature as somehow
analogous to what happened there is to trivialize their suffering.
I know that it's of considerable concern to different ones of you
about how to change the legislation or how to change the ethics act
-- possible legislative changes. I'm open to questions on that,
I've done -- and -- or anything else the committee would like to
ask. I thank you for your -- your patience in hearing me.
CHAIRMAN KOTT: Thank you. That concludes your testimony, and
Susie do you have anything you want to add at this time?
SUSIE BARNETT, PROFESSIONAL ASSISTANT, SELECT COMMITTEE ON
LEGISLATIVE ETHICS: I'm here to answer questions.
REPRESENTATIVE KOTT: I hope the committee has some questions for
you. Representative Porter.
Number 023
REPRESENTATIVE BRIAN PORTER: Thank you Mr. Chairman. Margie, to
say that serving on the Legislative Ethics Committee is a thankless
job is probably the understatement of the year, and I have the
ability that members of this committee don't have because I served
with you for two years. Probably the -- the only benefit that
accrues to the public members of the Ethics Committee is that they
can't have yard signs ...
MS. MACNEILLE: [Indisc.] a benefit, I agree ...
REPRESENTATIVE PORTER: ... that is far outweighed by everything
else. And I think it's only fair for me -- I feel compelled to say
that having served on this committee with the same five public
members that are there now that -- that two years was an education
process for me on just how difficult these kinds of things can be,
especially given, as we noted, I think, in the first thing that
came in front of the committee that the statute was woefully full
of holes. We had a list when I left about this long of things that
we wanted to change and I'm sure it's longer now. And I think as
an adjunct to a resolution to this particular thing we would want
to re-enter that fray either through this committee or some other -
- really take a look at filling those holes so that your job can be
a little bit easier.
REPRESENTATIVE PORTER: To me this case basically comes down to two
things, and that is, one; the merits of the allegation, and two,
the participation by Representative Sanders in the process. I
guess, I bite my tongue when I say it, but I almost wish that I had
been on the committee when this came because I would be really
interested in knowing the -- to the extent that you can, the debate
and the thought of balancing what on one hand is a pretty important
constitutional right of free speech and communication with the
notion that governmental, non-governmental activities equals
political, equals bi-partisan, which equals a violation. Can you -
- I don't know how much of that you can share, but ....
Number 122
MS. MACNEILLE: I guess we talk about, you know, what was in the
committee's mind. Lots of times I don't have a clue, you know.
There are a lot of us and we have a lot of minds. All I can say is
what we agree on when we're done. To me, the key here is who paid
for the communication, not the communication itself. Do I think
it's, generally speaking, without a question of who paid for it.
Okay for Representative Sanders to send that letter to people?
Sure. Do I think it's okay to use state staff and money to do it?
No. And so to me, I don't see a free speech problem, I see a money
problem. I hesitate to say what went through everyone else's
minds.
REPRESENTATIVE PORTER: Well Margie, I don't have any other
particular questions except to say I'm sorry that you guys have to
go through all of this. We'll get through it and get onto the next
one.
Number 181
MS. BARNETT: And we had a lovely flight down. It was sunny. It
was great.
CHAIRMAN KOTT: Further questions? Speaker Phillips.
Number 187
REPRESENTATIVE PHILLIPS: Thank you, Mr. Chairman. And I have lots
of questions.
MS. MACNEILLE: Good.
REPRESENTATIVE PHILLIPS: So please bare with me. I'm going to go
-- I -- I hope I've written them down as you spoke. The first
question I have to ask, and I'll have to jog your memory going back
in the record. And I'm looking at a record of the House Joint --
Joint House and Senate Judiciary Committee meetings of February 4th
in 1993, and that was a confirmation hearing. And I -- and what
I'm going to try to get to in -- in the root of my question is the
issue of appearance of conflict of interest. The idea that there
is a possible conflict of interest in your position that we did not
correct in the law. So that's where I'm going to try to get to in
my question.
REPRESENTATIVE PHILLIPS: In the record, Chairman Taylor, Robin
Taylor, Senator Taylor, asked you about your husband's law firm
contractual relationship with the state. You replied that you had
filed a request for a non-confidential advisory opinion about that
confidential -- that contractual relationship. What I want to know
is, who did you file that request with? Do you have a copy of that
record? Do we have -- can we have a copy of that record? But, who
did you file it with?
Number 242
MS. MACNEILLE: Okay. I'm -- I'm more than happy to -- to address
that. I have -- you have to understand, I -- I don't have an
office, I just have my house. I fax everything to everybody so I
end up with the originals. I have the original request for the
advisory opinion, which is addressed on January 12th, to the Select
Committee for Legislative Ethics, which at that point didn't really
exist because it didn't have any members. And I telecopied it to
Terry Kramer at -- I always get this wrong -- which, Legal Affairs
...
REPRESENTATIVE PHILLIPS: Legislative Legal Affairs ...
MS. MACNEILLE: ... Legislative Legal, on -- on the 12th day of
January 1993. And then -- and my confirmation hearing, I had this
in front of me and I read whole chunks of it into the record and
discussed it. I remember specifically Senator Taylor saying,
"Well, gosh we think Julian's great, go for it", I mean, something
like that. There was -- it was clear that that question was raised
and -- and there wasn't any particular problem raised. The reason
it came up was not addressed specifically as a conflict of
interest, but there is this provision in the statute limiting what
family members of legislative employees, which we count as, can do
as far as the state's concerned. And so there was a -- there was
an issue there ...
REPRESENTATIVE PHILLIPS: And that's -- that is the issue I want to
get to ...
MS. MACNEILLE: Okay. And then ...
REPRESENTATIVE PHILLIPS: ... and you -- and you have said, in your
-- in your testimony, you have said that you have requested --
okay, so the first time you asked for a request for an advisory
position on whether or not you were in conflict of interest was
from the Ethics Committee and from the Legislative Legal Affairs.
MS. MACNEILLE: Yeah. I filed -- yeah ...
REPRESENTATIVE PHILLIPS: And subsequent years, who did you file
that request with?
Number 320
MS. MACNEILLE: In April 15, 1993, the Ethics Committee, which by
then was functioning, Joe Donahue was the chair, held a meeting
about this and issued an advisory opinion which was public and
published ...
REPRESENTATIVE PHILLIPS: And so, subsequent years, did you file
your request with the Ethics Committee?
MS. MACNEILLE: Yes, I did.
Number 332
REPRESENTATIVE PHILLIPS: Mr. Chairman, I think that this is one of
the basic problems of what we're dealing with because in no where
in the law, that I am able to find, is there ever the provision
that it should be a member of the Ethics Committee, going to that
Ethics Committee to see if there is a conflict of interest.
Certainly that request should have come back to the legislature.
The legislature wrote the law. The legislature would have had the
intent of the law. And I think that is a basic problem because
Mrs. MacNeille, you say you don't have -- MacNeille, I'm sorry --
you don't have any idea of when your husband gets paid or anything
-- any of that. But in 1995 your husband received $289,000 from
the State of Alaska. And in 1996 he received over $300,000 from
the State of Alaska. Now certainly these payments have nothing to
do with the -- with the Hickel or the Cowper, or any other
administration. They are with the current administration. You are
a state employee. Your husband is taking -- I mean, you ...
MS. MACNEILLE: I am not a state employee.
REPRESENTATIVE PHILLIPS: You are not a state employee. But you
are -- and -- you are working for the State of Alaska. And in this
case there is, in my mind, an appearance of a conflict of interest.
The appearance is there. And I think, Mr. Chairman, our problem
here is the fact that we didn't make this a specific point at all
in the law. We didn't say to the Ethics Committee, if you have a
problem with the appearance of a conflict, it must come back to the
legislature who wrote the law, who made the intent on the law.
And so that's one question. That's one issue.
MS. MACNEILLE: Speaker Phillips, I might -- you all reconfirmed me
I believe in 1995 ...
REPRESENTATIVE PHILLIPS: Right, right ...
MS. MACNEILLE: ... so, I've come around again on this issue ...
REPRESENTATIVE PHILLIPS: ... but -- but -- the -- we never
received a -- I never saw a formal request, shall you -- shall this
be declared a conflict or not. I never saw that. And you know,
that's possibly my own fault.
MS. MACNEILLE: Well, I -- I just did everything that was in my
power to do, to flag the issue and I don't think there are any
surprises.
REPRESENTATIVE PHILLIPS: Right, and I'm not -- you know, I'm
saying this is something that I think we have a problem in the law,
and this needs to be clarified. I have a whole bunch of other
questions, Mr. Chairman, can I continue?
CHAIRMAN KOTT: At this point I'd like to ask you to hold those in
abeyance and we'll take a five minute recess.
[The committee went off record at 7:04 p.m. and resumed at 7:17
p.m.]
CHAIRMAN KOTT: Call the House Rules Committee back into session
and I will again remind you, you're still under oath.
Representative Phillips -- Speaker Phillips.
Number 445
REPRESENTATIVE PHILLIPS: Thank you Mr. Chairman. These committees
-- or these next questions -- series of questions are going to be
on the law itself, so either of you please feel to answer. We all
have recognized, over the years, that there exists a problems with
decisions -- ethics charges and decisions that come down during a
campaign season. And the champaign season let's say being from oh,
at least July through the election in November. Have you -- have
you investigated whether or not that there is any flexibility in
the law itself, or have you come to any kind of conclusions as how
the law might be changed that would allow you to take the election
season into consideration as you're making your time-lines? And,
you know, I can follow your time-line and see that it was almost
impossible to get this in. But in the middle of all of these
schedules there was an election season and that becomes a very
divisive thing on these kind of decisions. So, have you -- have
you, as a committee, considered that? Have you thought of any kind
of changes that should be made? Anything.
MS. MACNEILLE: Yeah. I'd love to address that. When I was on,
what I call the old committee, under the old ethics law, there was
I believe a 30 day -- 45 day, I can't remember, exclusion in the
statute that said that the committee couldn't accept any complaints
under a certain time period, before the election, and in fact
complaints were sent back because of that.
REPRESENTATIVE PORTER: Sixty ...
MS. MACNEILLE: Sixty. And -- and then this statute doesn't have
that in it. I don't think it's -- I'm speaking for myself,
personally, because, you know, the committee hasn't formally
addressed its legislative package for this year. We were going to
do that today at 1:00, except we were in the air. But, for me
personally, I don't want to see the Ethics Committee used as a
political football. And I don't have any trouble. I think it's a
fine idea to have some kind of blackout period before the election
on accepting complaints. The last thing that I want to see as an
Ethics Committee member is somebody filing the week before
election, you know, getting a lot of press out of it, and then
we're left to clean up the mess, you know, much later. And maybe
it's garbage, maybe it's not. And it can be used -- the -- we can
be offensively and defensively, and I don't want to be used either
way. So, I think that -- that should the legislature choose to do
that, it would probably be a good idea. I would be concerned if
there were some kind of moratorium put on the committee doing
anything because July to November, or some period like that is, you
know, a big chunk of the year. I -- I was joking about [indisc.--
coughing.] like halibut openers, you know, we have 24 hours to get
complaints in and then we'll close it cause elections -- the
primaries, the elections -- I think the legislature has to balance
the functioning of the committee with the size of the blackout
period you wanted to use. But I -- I share your concern, and -- my
personal point of view, an amendment like that would be a great
idea.
Number 595
CHAIRMAN KOTT: Any further questions?
Number 598
REPRESENTATIVE PHILLIPS: And again, on the law as it -- the law
that we have on the books today that you must operate under -- and
I want to go to the subject of the hearing officer or the
arbitrator or the master and, you know, whatever you're going to
call that person. And I understand that you made a request of
Representative Sanders' attorney to -- to get with you on -- go
through the names, and to get with you -- and so there was a time-
line involved there. They couldn't do it within a certain period
of time. I think what I'm trying to get to -- does the law allow
you to, independently, make that decision on who that person will
be? Or is the law not specific -- I mean, is the law specific or
not, that both parties should be taken into consideration when you
make the choice on the arbitrator or the master, or the hearings
officer as is the normal case when you are doing arbitration. You
have an agreement from both. But, does our law not cover that? Is
the law not clear on that?
MS. MACNEILLE: The statute says we can hire people, but doesn't
say anything about hearing officers. We have procedures which were
adopted, you know, back on the senate side, when we were in that --
in that formal hearing, about how we select hearing officers. And
it provides that we give a list to both sides, and that our
decision is final. We haven't ever -- we've only chosen them
twice, but we haven't ever chosen somebody -- say we couldn't have,
you know, beforehand, we've never gone through someone marked off.
So ....
Number 678
REPRESENTATIVE PHILLIPS: So that it would be a -- possibly another
area of the law that we should be looking at, as far as clarifying
what -- the process.
MS. MACNEILLE: If -- if you wanted to, sure.
REPRESENTATIVE PHILLIPS: Yeah. Okay.
Number 688
CHAIRMAN KOTT: On that point, since we're talking about hearing
officers, when you selected Mr. White as the hearing officer, was
there any consideration given to the fact that he may be
politically connected, or made political contributions, or was
somewhat or somehow involved with a political party, or anything of
the nature, or perhaps even a conflict of interest? I mean, do you
go through that litany of discussion? I seem to recall that there
was some contributions given.
MS. MACNEILLE: Okay. Let me go back to our time-line here.
October 8th we sent the list out to -- to Mr. Syren and Mr. Spaan,
and that was the day that Susie started contacting the people on
that list. As I said, it was an old list we had from the Jacko
proceeding, to -- to ask each one if they were available [indisc.]
charge, and whether they would have any political involvement, or
any problem with living up to the part of the statute that says, if
you're an employee of the committee you can't do it, you can't make
contributions, you can't put up yard signs. You know, the whole --
the whole thing, and Susie can tell you about her discussions with
the people on the committee -- on the -- on the list, particularly
Mr. White.
MS. BARTLETT: With each of the people that are ...
CHAIRMAN KOTT: Susie, would you identify yourself for the ...
Number 754
MS. BARNETT: Susie Barnett, Staff to the Legislative Ethics
Committee.
CHAIRMAN KOTT: Thanks.
MS. BARNETT: With the people that I contacted from -- the list was
originally developed three years ago and has been changed due to
people moving, etcetera. When I talked to them I would ask them if
they first had any conflicts in this case with Representative
Sanders: Did they give money to his opponent, did they give money
to him, did they -- were they involved in his opponent's campaign
or his campaign. So that was, of course, key importance. Also,
then, I asked them about whether they had any conflicts with Lester
Syren, Representative Sanders' attorney, and then further conflicts
are, are you involved in legislative campaigns, are you -- you
know, the code reads legislative campaigns. No, no, no. Do you
make contributions, have you made -- and I want to be clear about
this because my question to them is, have you made contributions to
political campaigns.
MS. BARNETT: So I come -- I cleanse the list and go through and
find people who, yes, at this point in time, you know, actually no
one on the list had any conflicts with Representative Sanders or
his opponents. Some people had said, yes, I'm actively involved
in so and so's campaign, or such and such -- or, you know, I've
become involved. So, I end up with a list. Mike White
specifically was on that list. No conflicts. Now, I did not ask
Mike White -- it didn't even occur to me with any of these people.
And certainly it's something I will do in the future. But to say,
does your firm contribute to -- so that there is a clarification
there that -- that I -- I would not want to have anyone be mislead
that, that ...
CHAIRMAN KOTT: Representative Porter.
Number 850
REPRESENTATIVE PORTER: Just to that point, you won't have to
because the law has changed now and firms will not be able to make
[indisc.--simultaneous-laughter].
MS. BARNETT: Well, thanks. One last thing to do. I like that.
CHAIRMAN KOTT: Representative Elton.
Number 858
REPRESENTATIVE KIM ELTON: Mr. Chair, something you can help me out
with maybe before I decide whether to ask a follow-up question or
not. I mean, I'm -- I'm experiencing a certain amount of unease
that we're straying from H96-02, and into things that maybe should
be discussed, but maybe discussed in another forum. I mean, I
appreciate the fact that this is a relatively new ethics procedure,
and hopefully that it evolves over time. But I'm not sure about
the relevance of -- of the process and what we can do to -- to --
to fine tune the law in front of us. And so I'd like to have you
maybe explain what the latitudes are here, and then I'll make up
mind whether I need to ask a follow-up question.
CHAIRMAN KOTT: Well certainly, since we are dealing with a time-
line, we have -- we have discussed Mr. White as the hearing
officer. I have given this committee, and Margie, some latitude in
straying. When you stray too far you'll know.
REPRESENTATIVE ELTON: Okay. But I don't think this strays too far
then, Mr. Chair, if -- if I can ask a follow-up question then.
CHAIRMAN KOTT: Please.
REPRESENTATIVE ELTON: What -- what would have happened if
Representative Sanders, or Mr. Syren, his attorney, had said, "You
know, look it, I think we have a problem with Mr. White." Would --
would Mr. White have been struck at that point in time, or would
you have had to make another determination, either at the staff
level or the committee level, on whether or not to strike Mr. White
or would he have just been gone?
Number 940
MS. MACNEILLE: I'll speak to that cause I was the -- I was the
person with the buck at that time. If, on October 11th, either Mr.
Syren or Mr. Spaan had sent a list saying, you know, not this
person, not this person, not this person, I would have gone from
the people that were listed. After October 11th, after I had made
the selection, Representative Sanders' attorney did raise what I
thought was way too tenuous a claim of conflict that -- that
Michael White had. But if just for -- you know, for whatever
reason, I had gotten back the list on October 11th and Mike White
scratched off, I wouldn't have used him, you know. I was looking
for somebody [indisc.--coughing] I turned away from David Stewart,
who -- who I knew would do a good job, to try and go as far as they
could to have no appearance of problem. And -- and I -- I just --
I was trying to make this as easy and smooth as I could.
REPRESENTATIVE ELTON: Thanks, Mr. Chairman.
Number 995
CHAIRMAN KOTT: Representative Phillips ...
REPRESENTATVE PHILLIPS: Thank you, Mr. Chairman ...
CHAIRMAN KOTT: ... Speaker Phillips.
REPRESENTATIVE PHILLIPS: Again, this -- either one of you answer
this because it pertains to the law itself, and unfortunately in my
opinion, one of the great ambiguities of the law, which is only our
fault, only ours because we wrote the law. It is the issue of the
definition of non-governmental purpose, versus your interpretation
of legislative purpose. Do the law -- in your mind, is the law
clear on what you can determine to be a non-governmental purpose
and then you came in and used the definition, legislative purpose,
and I'm wondering where did you pick up legislative purpose. I
think the statute says non-governmental purpose. But in your -- in
your understanding of the law itself, is there any definition of
those two terms, and -- and why did you choose legislative versus
non-governmental?
MS. MACNEILLE: Let me see if I can answer that. Is there
definition of non-governmental purpose? No. I mean, it's -- the
thing that the Ethics Committee struggles with all the time, and
you all get impatient with us, and -- and I don't blame you, is
that this is a, you know, the whole thing is a fuzzy area. There's
no way -- it says in the preamble itself, there is no way you can
describe all the circumstances and every day people come up with
things and put Susie on the spot, say, well what about this
situation. You're going to have to try and figure it out. It is
exceedingly difficult to draw any kind of black and white line.
The question is, did we, in this decision, inappropriately, you
know, shift from non-governmental to legislative. I -- you know,
when I heard that yesterday I thought, well gosh, what's -- you
know, let me think about that. [Indisc.--coughing.] And I think
it's an issue we need to discuss as a committee. But when I looked
at what we did in this case, in this case I don't think there's a
difference. I can imagine cases where there is a difference. And,
you know, we'll stick to our knitting then, we'll go back to non-
governmental, but it doesn't mean it's easy to define. And that's
a problem with this.
Number 1127
REPRESENTATIVE PHILLIPS: And the next point that I wanted to bring
on this issue, I think, is the biggest question of all that must be
answered. If we were not a legislator, we would not be doing these
-- these deeds. If we were not a legislator, we would not be
sending a letter to a constituent thanking them for being part of
a process. I would not be sending a letter to high school
graduates congratulating them on getting a diploma and sending them
a voter registration form. I would not be sending letters to
longevity bonus recipients advising them of something going on in
the process. If we were not legislators we would not be doing
that. Therefore, you carry the argument to the fact that we are
legislators. This becomes part of our legislative or governmental
responsibility. And I think that is -- really begs a clarification
-- main clarification, because we wouldn't be doing these things if
we weren't legislators.
MS. MACNEILLE: I think that we have to be careful in using that
analysis because if you say that you -- you wouldn't do it unless
you were a legislator, and therefore, if you are a legislator and
you do it, it's okay, you don't need us. You're there. You know,
everything you all do as legislatures is -- must be because of your
legislative status, and -- and so it's alright. If that's the test
you use, you know, it's -- it -- it doesn't give any guidance or --
or comfort to the public about the use of resources.
Number 1226
REPRESENTATIVE PHILLIPS: I think everything we -- we've put on the
record, and every thing we asked brings up more of the problems
that we have. And you are absolutely right, because every time an
issue is raised, the law is being interpreted and clarified. And
there's no other process of getting to that point unless we make
these clarifications. Mr. Chairman, I have one more question that
I'd like to ask, and then I'll wait and see if anybody else asks.
CHAIRMAN KOTT: Please.
REPRESENTATIVE PHILLIPS: You made a statement in your closing
remarks that you were very, very uncomfortable, and that you
believed that this was setting bad precedence that you are here
before us this evening. That this is not the way the process
should operate; that the Ethics Committee, itself, should be
protected and -- and stay separate from the legislative function.
What do you feel would be an appropriate change to the law to
protect the process?
MS. MACNEILLE: Okay. I'm -- I'm sorry, I guess I didn't make
myself clear, because I do think it's appropriate for the House to
refer this to a committee and -- Rules Committee -- the Rules
Committee to -- to look at it. What I was being uncomfortable
about is that tonight I've been a whole lot more forthcoming and
explaining what it was that went on in my mind, and other people's
minds, that I've ever done by any ethics thing before. You know,
just to inferiorate reporters and not -- you know, say nothing,
and nothing and nothing. And I'm just hoping that after this
effort to -- to really open up what we've done, that it won't be
needed in the future. And that -- that further chairs of
subcommittees won't have to go through this detailed a process.
That's -- that was my concern, not that it was inappropriate for
you all to have ...
REPRESENTATIVE PHILLIPS: Are you referring to the detailed process
on defining your time-line? Because certainly, these questions
that we're putting on the record, are a part of the ...
MS. MACNEILLE: Oh, yeah ...
REPRESENTATIVE PHILLIPS: ... process that needs to be addressed.
MS. MACNEILLE: No, I'm -- I'm not -- I'm -- I'm not suggesting at
all that your -- the questions are inappropriate. I'm happy to
the arrangement ...
REPRESENTATIVE PHILLIPS: So you're talking about ...
MS. MACNEILLE: ... I'm happy to discuss ...
REPRESENTATIVE PHILLIPS: ... the detail on the time-line.
MS. MACNEILLE: Yeah. And the stuff that I volunteered. I just
feel like it was incumbent on me, given what had gone on in this
committee before, to make that kind of detailed defense of the
committee. But I was hoping that in the future that -- that kind
of thing wouldn't be necessary. I'm not suggesting that there
should be some legislative change to prevent that from happening,
because I came here voluntarily and opened my mouth and talked, you
know. I may have said a lot more things than I should have said.
I don't know. There's -- on that line, there's one more thing I
must say because I forgot to say it before. I wanted to thank the
committee deeply for choosing not to stay in executive session
yesterday. And for having Representative Sanders have this
discussion of me in public because these concerns had been
circulating for some time. And I really appreciate the opportunity
to address them in public, and not have them dealt with in secret.
And I -- I really want to thank each and everyone of you for that.
Number 1410
REPRESENTATIVE ELTON: Thanks, Mr. Chair. I -- I -- I too have a
series of questions, but -- but I -- I think I want to say first
that I agree with Representative Phillips about the nub of the
questions on being, is this an activity that we would have done if
we weren't in the legislature. And -- and I don't -- I think it's
difficult to assume what the deliberations were. It -- it is -- as
we begin the process of making the deliberations and executive
session after -- after the hearing. But I'm -- I guess one of the
things that I would have assumed would have happened, because I
think most of us on this panel probably cringed yesterday when we
were asked, what happens if you send a letter of congratulations to
high school -- graduating high school seniors. Most of us have
done that. And I guess, upon reflection, I -- I -- I thought,
well, maybe the difference is that I sent it to the entire class of
graduating seniors, and I didn't send it just to republicans, or
just to democrats, or just to -- in my case, there are two house
districts and graduating seniors are from both. But -- but that I
would have been okay if I had sent the letter to all the graduates.
But I may not have been okay if I sent it only to high school
graduates who had registered as democrats. Is -- is that a fair
assumption on my part?
MS. MACNEILLE: I'll answer, and then Susie, the one who has to
deal these things to get answer. I -- I think the thing about the
letter is not just who it went to but what it was about, which is
a republican party function. I don't care about republican, I
mean, it could be democrat or green party function. It was a -- a
party function. I think that if you want to send, you know, some
kind of letter to some select group of your constituents, and you
want to talk to them about some particular, you know, some
particular [indisc.--coughing], that's fine. It's just -- I don't
-- in this case, this has to do with, are you sending them a letter
about political party activity. And that's the -- the focus. It's
not -- you know, that's the problem. And it's the use of the state
money. And the question whether you would do this if you weren't
a legislator, if you weren't a legislator you wouldn't have state
employees to use to do this.
REPRESENTATIVE ELTON: Mr. Chair, do you want me to just keep
going?
CHAIRMAN KOTT: Please.
REPRESENTATIVE ELTON: Thanks, Mr. Chair. What would have
happened, if at anytime prior to the hearing Representative
Sanders, or his attorney, came to staff or -- or came to the
committee and said, "You know, I'm really confused. I thought what
I did was okay. Can somebody explain to me what the possible
problem is? And if -- if there is a problem, what can I do to fix
it?" What -- what would have happened?
MS. MACNEILLE: You know, the old "what if" question. We wouldn't
be here, you know. That's my view. I, personally, longed for some
way to get this thing resolved other than going through this. And
some way to some kind of communication. But the method that was
chosen was, you know, full-dress combat. And people make choices
about that, and you -- and you end up with results from them. But
...
Number 1636
MS. BARNETT: And -- and if I could ...
MS. MACNEILLE: Yeah ...
MS. BARNETT: ... add -- add to this. One of the things that --
that we certainly have done on an informal basis is, if somebody --
for example, I got mailed, inadvertently, someone's newsletter. It
had a campaign picture on it. I didn't run to the committee and
say, let's go get these people. I walked up to the legislator's
office and said, this is the kind of thing that could, potentially,
get you into trouble. Here's why, you know, and we had a good
discussion about it. End of story. Those things, prevention and
education, are a huge part of our responsibility. So we aren't out
-- my job is not to go out and say, okay, here's a violation,
here's violation, here's a violation. If Representative Sanders
had walked into me prior to any of this, and talked prior to
writing the letter and talked about the letter, we wouldn't be
here. We've spent a lot of time giving -- I spend a tremendous
amount of time providing informal advise. If, in fact, I had told
him that the letter was okay -- if he came in and said, "What do
you think about this letter?" And -- and -- and if I had said to
him, looks okay to me, go for it. Then he and I would have been at
the table together in front of the committee. And I would be
sitting in his defense. It might surprise him, but I would be glad
to be there because that, I believe, is my responsibility.
REPRESENTATIVE ELTON: And there's been some allusion to this and
I don't know how to say it. But -- but, reading the transcript --
and I -- I got the impression that the -- the process was
incredibly complicated. And -- and may have been complicated by
the presence of attorneys. And -- and so, you -- you're an
attorney, right?
MS. MACNEILLE: [Indisc.--Simultaneous-laughter]. ... you want to
give, I'm used to it.
REPRESENTATIVE ELTON: I -- I -- tried -- I tried to figure out how
to frame this question. During the transcript, and in the
transcript -- I mean, there was -- there was discussion about a lot
of things that I, frankly, don't understand. I mean, contempt and
taking the Fifth, and -- and a lot of other things. And -- and I
guess one of the questions that I had about the process is -- this
is kind of a two-part question, Mr. Chair. First, is it usual for
an attorney to represent a -- a -- a person that's a subject of a
complaint, as well as witnesses that -- that may shed light on the
complaint? Is it normal for an attorney to represent that span of
clients?
MS. MACNEILLE: Not in my experience. But not -- you understand my
experience is sort of odd, I mean, I'm a public utility wire, you
know. So it's ...
REPRESENTATIVE ELTON: And I don't expect you to go any further.
The second part of the question is -- and again, it -- it doesn't
matter to me if you laugh at what I say next because I don't know
the rules. But -- but -- but my understanding of -- of the Fifth -
- and part of that understanding came about through the transcript.
That by taking the Fifth is -- the only reason you can take the
Fifth is a realistic fear of -- of criminal prosecution. And --
and I wonder if part of your discussions -- since part of your
charge is to look at whether or not there's been corroboration. I
wonder if part of the discussion included any -- any decision, on
the committee's part, as to whether or not the Fifth was
inappropriately taken by any of the people that appeared before the
committee.
MS. MACNEILLE: Well, we were fortunate in that regard to have Mr.
White because, you know, he -- he'd been a judge, he'd been a
criminal lawyer, he'd been a district attorney, he'd seen a lot of
people take the Fifth. And he stated to us, various times, he
thought that this was appropriately taken, and I can't remember if
he said whether it was not appropriately taken. But what our
decision says and what we did was, we decided that taking the Fifth
didn't have anything do to with cooperation. That that decision,
made by Representative Sanders, and his cooperation, was the only
thing that we had to look at under the statute. Witnesses are, you
know, irrelevant to us -- that we were not going to hold that
against him. Whether or not he -- you know, that was a good
decision or not. It wasn't our decision, it was his decision and
we weren't -- we not only were not going to infer anything for his
taking it, which we were permitted to do, but we did not. We
weren't going to say that taking the Fifth was a lack of
cooperation. And so, we -- you know, we said, essentially, fine,
take the fifth, and -- and that's -- that's not going to be
something the committee considers as lack of cooperation, or -- or
giving us any evidentiary basis at all.
REPRESENTATIVE ELTON: That kind of -- Mr. Chair, I just have two
more questions and -- and one of them, I think, was partially
answered. So, I'm to understand that in your deliberations on the
guilt portion, as opposed to the sanction portion, that -- that
taking -- the invocation of the Fifth didn't influence your
deliberations on establishing the guilt portion.
Number 1894
MS. MACNEILLE: That's right. On -- on page 2 of our decision it
says; Although the committee is permitted, as a matter of law, to
draw inferences from their -- Representative Sanders and his staff
-- doing so, it did not do so in making it's findings and reaching
it's decision.
REPRESENTATIVE ELTON: And -- and I can then assume, also, that
when you deliberated about the sanctions that you also ...
MS. MACNEILLE: Yeah ...
REPRESENTATIVE ELTON: ... accept the [indisc.-simultaneous-speech]
...
MS. MACNEILLE: Yeah. On page -- bottom of page 5 -- and I'll just
read from the decision; In several areas, Representative Sanders'
view of the applicable law is different than that of the
committee's. Specifically, -- the judicial branch stuff -- and
whether one person can claim the Fifth Amendment privilege against
self incrimination to avoid testimony that might incriminate
another person. The subject doesn't have to agree with the
committee to be considered cooperative. And the committee does not
hold these differences of opinion against Representative Sanders.
REPRESENTATIVE ELTON: And -- and the last question for now, Mr.
Chair -- and that kind of gets to process, and -- and -- and it
would be helpful to me if you could clarify the process. I guess
the assumption that I have made, in the past, is that the Ethics
Committee, or the Ethics Subcommittee, in -- in this case, which
has been characterized, through testimony, as -- as being both the
prosecutor and the jury. I have viewed the process a little bit
differently. That the -- the Ethics Subcommittee is not the final
jury and -- and is maybe not the jury. But -- but this body is the
jury, and -- and -- and so if we separate what our body is expected
to do, that would be the judicial function, based on
recommendations that came from the Ethics Subcommittee. Is that a
-- am I misunderstanding the process, or is -- is it more
complicated than that?
MS. MACNEILLE: No, I -- I think that's a way to put it. I think
you all are more than the jury. I think you're it, you know. I
mean, juries have certain limited roles, they find facts and judges
find law and I think you do the whole thing. And what we are is
some kind of preliminary screener. And it is -- Representative
Porter can tell you, it is no fun doing this stuff. It is no fun
for legislators, particularly, to have to sit in judgment on their
peers. And it is no fun for -- for you legislators to try and do
it yourselves. I think you -- you have all kinds of -- you know,
personally uncomfortable issues and political issues, and
appearance issues, and so that, in my view is -- is why we're in
this process too. But the ultimate decision is yours.
REPRESENTATIVE ELTON: Mr. Chair, I -- I promised only one more
question, but ...
CHAIRMAN KOTT: You're quarter's about running out.
REPRESENTATIVE ELTON: Pardon me?
CHAIRMAN KOTT: You've got your 25 cents worth.
Number 2259
REPRESENTATIVE ELTON: Just -- just one more, and -- and it's one
that I skipped over here. I guess I've assumed when -- when you
talk about the decision of the subcommittee, and when you began
your opening remarks by saying that -- that some members of the
committee would be offended by the notion that somebody else was
leading them. I -- I've assumed that the decision of the
subcommittee was a unanimous decision. Is that a -- is -- is my
inference correct?
MS. MACNEILLE: We don't record our votes. And so -- and -- and
that's our policy. So I can't say yes, it was unanimous, or no,
there was one person against it but I can't tell who it is. I
mean, I just can't say. And there is a policy reason for that
which has to do with the legislators who are on the committee not
being having to -- you know, stand up and state; send my -- my
esteemed colleague down the drain here. But how can I say what I
want to say when I can't say what I want to say? This committee
wrote its own decision and we all worked on it.
CHAIRMAN KOTT: Representative Porter.
REPRESENTATIVE PORTER: The dilemma that Margie just had,
unfortunately -- excuse me, I'm chewing ice water, go through this
whole discussion because there are steps throughout this entire
process that are confidential. They're frustrating for this kind
of a review, from my experience, and ...
[TAPE CHANGE]
TAPE 97-4, SIDE A
Number 000
REPRESENTATIVE PORTER (continued): ... and then make up our minds
whether we would have agreed with -- with their decision on that
violation. I wish we would have had the benefit of the full
discussion earlier, but -- but we can't because you just can't do
that. So I guess, as much as I'd like to, I'm ready to move on.
Number 052
CHAIRMAN KOTT: I've got just one or two questions here since it's
now coming to my turn. It seems to me, on the report, there was
some discussion about the recommendations for sanctions that -- and
that those sanctions could be recommended based on Representative
Sanders not cooperating. Am I on the right track so far?
MS. MACNEILLE: Uh-huh.
CHAIRMAN KOTT: And you, essentially, suggested to the committee
that as failure to -- to cooperate was not associated with, in
essence, this particular case by virtue of him pleading the Fifth.
Is that still correct?
MS. MACNEILLE: Yes. I guess I should say that the lack of
cooperation we considered and enhancing recommended sanctions was
outside, or separate from the question of taking the Fifth 'cause
it -- well, with taking the Fifth, it wasn't considered in our --
our lack of cooperation finding.
CHAIRMAN KOTT: Were there other areas regarding the lack of
cooperation in this particular manner that was taken into
consideration?
Number 160
MS. MACNEILLE: Yeah. And I think we have to talk about that -- we
refer to in -- on page 6, that we've reviewed the pleadings and
correspondence in the case since the probable cause determination.
We saw a pattern of delaying and obstructing tactics, including
lack of compliance with the hearing officer's orders, which
constitutes a lack of cooperation. And there's something I want to
add to that. There's been a lot of press made about how much this
proceeding cost compared to the size of the offense. The reason
that this -- we had to spend so much money on lawyers in this was
dealing with the continual delaying and obstructive tactics that
are talked about here. It's not our choice, and not, I think, a
mandatory part of any particular proceeding. The question, I
think, that we thought was at issue is, is the Ethics Committee
permitted, or is it appropriate for us to back off and -- and go
away when it looks like someone's going to make a fuss and cost a
lot of money. Is that a leeway that we have to say, you know, is
it cost effective. And we didn't feel that -- that it was
appropriate or permitted under the law to -- to be intimidated out
of doing what we thought was our job.
Number 290
CHAIRMAN KOTT: I'm not too familiar with the -- the legal process
and all the steps involved, but since Representative Sanders was
represented by counsel, and you've suggested that there was some
lack of compliance, or stalling tactics involved, isn't that kind
of what's part of what I would call the judicial process in -- in
any proceeding, those kinds of discussions or tactics, or whatever
you might want to call them?
Number 329
MS. MACNEILLE: I thought that -- well, let's see ...
CHAIRMAN KOTT: And you're talking to a layman here.
MS. MACNEILLE: Yeah, I know -- I know. I guess the question is,
isn't this just standard litigation, and you know, in standard
litigation, delaying and obstructive tactics, well, maybe. But in
standard litigation is the question is whether the subject
cooperates part of -- part of the analysis. To me this seemed
beyond even the -- the norm, but regardless, the question is, you
know, the statutory thing you have to consider cooperation and it -
- it wasn't there. You know, it wasn't -- if Representative
Sanders had said in the beginning, "Look, I think you guys are --
are wrong headed, just go ahead without me. I'll just, you know,
deal with it later at the House", we could have done it a lot
cheaper than the way we -- than the way we had to go.
Number 455
CHAIRMAN KOTT: Thank you. I have one other question and -- and
maybe my assumption, or what I heard you testify earlier on is --
tell me I'm wrong, and if I am off base please correct me but,
seems like you did mention -- and I'm going back to the -- the law,
itself, regarding the letter. It seems like you mentioned that the
contents of the letter was okay, but the conveyance of, was the
problematic area, that being using state resources. Is -- is that
correct, or ....
Number 494
MS. MACNEILLE: If the letter had been done without using state
resources, it would have nothing to do with us. That'd be fine.
If the letter had -- had in addition to what it had, some
discussion of legislation or, you know, something that tied this
into the legislature or, you know, state government even, that
would have been okay. So, there -- there are a couple different
ways the letter could have been okay, but, as it's written, if
there had been no use of state resources in producing it, not --
you know, not our problem.
CHAIRMAN KOTT: And that -- that somewhat brings me to my next
question which is extremely confusing to me in this section of law,
and if I might just read the first part of it, and it is in the
same area, "Unless approved by the committee, state funds, other
than funds to which a legislator is entitled to as an office
allowance, may not be used to print or distribute mass mailings".
I mean, aren't we at somewhat of a dichotomy here, there's a
dilemma in -- in the statute, some ambiguity? On the one hand
we're saying one thing, and then the hand we're condoning the
other.
Number 585
MS. MACNEILLE: When you heard Representative Sanders say [indisc.]
you know, he -- if -- if he had looked at page 13 of the handbook
about mass mailings and stuff there, I wasn't clear whether that
was the testimony that he had, but if -- but -- I thought, gosh I
wish we could have been, you know, in on this process somewhere
because to my view, a mass mailing is sort of a bigger pool of
constituents. A mass mailing about the wrong thing is still a
problem. This says that any kind of mass mailing, no matter
whether it's completely about the, you know, the education budget
or something like that is -- has a blackout period. Now, I'm going
to look at Susie and she's going to tell me whether I'm way off
base.
Number 637
MS. BARNETT: No that's -- that's correct. But these -- in this
case we are talking about committee funds. It's a specific --
taking the additional funds that you have access to as finance
committee chair, for example, and putting out a mailing about your
work as chair of the finance committee, during that blackout period
of time, it's -- they're too different types of monies. It is
saying, you with that extra access to committee funds can't do it
during that period of time. That's the way I've interpreted that
piece.
Number 680
CHAIRMAN KOTT: I can -- I can understand that interpretation based
on, unless approved by the committee's state funds, and I would
interpret that the same way you're interpreting it. That is funds
that are held by a committee chair, for whatever purpose, which I
am not aware, other than maybe the finance committee who has that
available to them, but then it goes on to say, "other than funds to
which a legislator is entitled to as an office allowance may not be
used." Other than those so that ....
Number 716
MS. BARNETT: There is certainly, if I could step in here, ...
MS. MACNEILLE: Please.
MS. BARNETT: ... no intent that your -- for example, end -- this
is my understanding the way this statute was written, that your end
of the session newsletters, there's a -- those are not restricted.
And -- and that's the way I read the statute.
Number 740
REPRESENTATIVE PHILLIPS: Mr. Chairman, could I follow-up on that?
CHAIRMAN KOTT: Representative Phillips.
REPRESENTATIVE PHILLIPS: Thank you. The -- the statute is clear.
It says, "However a legislator's personal office allowance may be
used for these mass mailings at any time". So had the money that
goes into our -- our office accounts been used for this mass
mailing, where the statute says, "However the office allowance may
be used for these mass mailings at any time", would you have found
the same findings on this mailing?
MS. MACNEILLE: I'm sorry. I'm starting to fuss after ...
REPRESENTATIVE PHILLIPS: The statute says ...
MS. MACNEILLE: Okay, can you refer me to ...
REPRESENTATIVE PHILLIPS: It's 24.60.030(c), and is says, "State
money may not be used to print or distribute a mass mailing from,
or about a legislator who is a candidate for state office", and
that was questioned, "during a period beginning 90 days before the
primary, ending a day after the general election, special election.
However, a legislator's personal office allowance may be used for
these mass mailings at any time."
Number 810
MS. MACNEILLE: See if -- if it had read that way, and
Representative Sanders had said to us, "Hey, this section (c) is
[indisc.]", you know, or we had looked at it, would we still be
having a problem here.
Number 863
REPRESENTATIVE PHILLIPS: Well, it is in the statute. This is the
statute.
MS. MACNEILLE: It just ...
REPRESENTATIVE PHILLIPS: So ...
MS. MACNEILLE: ... I mean, yeah, I think that ...
REPRESENTATIVE PHILLIPS: ... this -- this is the statute that we
are dealing with, so ...
MS. MACNEILLE: I'm sorry. I understood you to rephrase it a
little differently, I think.
REPRESENTATIVE PHILLIPS: No, I -- I'm reading -- anyway, it says,
"However, a legislator's personal office allowance may be used for
these mass mailings at any time." Why did that not be taken into
consideration in doing this mailing?
MS. MACNEILLE: I'm sorry. My statute doesn't read that way ...
MS. BARNETT: Neither of us ...
CHAIRMAN KOTT: It's on page 13. [Indisc.--Simultaneous-speech.]
MS. BARNETT: Oh, you're [indisc.] ...
MS. MACNEILLE: Oh -- oh, I'm sorry.
CHAIRMAN KOTT: Which is -- looks like it's rephrased ...
REPRESENTATIVE PHILLIPS: Mass mailings use of state funds -- use
of state funds. So, had -- had ...
MS. MACNEILLE: [Indisc.] about a legislator ...
REPRESENTATIVE PHILLIPS: ... had this mailing been paid out of the
personal office account, then there would not have been any cause
for any concern?
Number 909
MS. MACNEILLE: Yes, and no. First, the question is use of staff
time. If this mailing had been done not on government time ...
REPRESENTATIVE PHILLIPS: But -- but this statute does not say
that. It says, "However a legislator's personal office allowance
can be used for these mass mailings at any time." A mass mailing
has to take somebody to produce the mass mailing. It has to take
somebody to put postage on and distribute it to the post office.
I mean, those are all the steps that are involved in a mass
mailing.
MS. MACNEILLE: I -- I thought you were talking about the postage
question, which I think this -- this seems to be personal office
allowance has to deal with. I don't understand that a personal
office allowance is being used to -- to fund the staff-time for the
mass mailings. I understand this to say, a mass mailing from, or
about a legislator who's a candidate for -- for state office. I,
you know, I -- I'm sorry I ...
Number 976
REPRESENTATIVE PHILLIPS: From a legislator. This would be a mass
mailing from a legislator to his constituents. In this case, we
are talking about a mass mailing from a legislator to his
constituents. The question I'm asking is, had he used his personal
office allowance to fund this, then it would have been appropriate
according -- according to my interpretation of this statute.
MS. BARNETT: But -- but it doesn't negate (b), up above, which is
the political party activity. So ...
REPRESENTATIVE PHILLIPS: This -- this statute does not clarify
that.
MS. BARNETT: But -- but one is not -- they don't, I mean, it
doesn't negate this -- this ...
MS. MACNEILLE: I think you have to read them both together.
MS. BARNETT: Right. You have to read -- and -- and -- and because
one part -- in any part of the code you have to address all the
parts of the code [indisc.--coughing] activities, and in our
interpretations. So a political party -- I was trying to think,
Representative Phillips, earlier today about this kind of question
'cause I think it is confusing, and mailings are important and your
communication with your constituents is important. If we were to
say -- and looking at; is it okay to send out invitations to the
Bartlett Club Forum on staff time with -- with office allowance
money. I believe that everyone in here would say; no, that's not
okay, that's not why we have staff. Where do you draw the line on
these kinds of mailings and use of state resources. One of the
ways has been put into the code, and that's political party
activity.
Number 1003
CHAIRMAN KOTT: And is of the opinion, at least of the committee,
that sending correspondence to a constituent who participated,
after the fact he receives, or she receives a letter, is in fact it
involved with political activity? That's the problem -- the
trouble I'm having is trying to put the two together.
Number 1105
MS. MACNEILLE: I that's a difference between participating and a
national spelling bee. Participating in an exclusive partisan, you
know, political party activity.
CHAIRMAN KOTT: Recognizing the fact that 30 seconds before that
person went to the straw poll he could have been of any party
affiliation, but because it's unregulated by state law, it's
controlled, primarily, through procedures developed by a party,
that person then must change his party affiliation or registration
to one or the other to participate.
Number 1143
MS. MACNEILLE: I don't understand the republican straw poll and,
you know, we had to work with the evidence we had and testimony of
the republican party official who testified. I didn't understand
it to be a -- you know, an official part of the election process.
I understood it to be something -- in fact, you know, an effective
and imaginative thing to do to deal with republican party influence
in Alaska in -- in national -- in national politics. And I don't
think that that's a governmental purpose. It may be a desirable
purpose. It may be valuable, but I don't think if it's a
governmental purposes.
Number 1195
REPRESENTATIVE PHILLIPS: Mr. Chairman, one follow-up and then ...
CHAIRMAN KOTT: Speaker Phillips ...
REPRESENTATIVE PHILLIPS: ... I won't belabor the -- the fact any
longer. Government is partisan. Government in Alaska is made up
of republicans and democrats; used to have some green parties,
used to have some libertarians, but we don't right now. Government
in Alaska, today, is made up of republicans and democrats. It is
a partisan thing. And when the whole government process goes
through, it is the public making a selection between republicans
and democrats, whether it's at the presidential level, or the state
level or the local -- no, not the local level; presidential level
or the state level. So it is partisan. That is the nature of
government. I think we have a real can of worms here.
MS. MACNEILLE: An now it's yours. It's not ours.
CHAIRMAN KOTT: I agree. Kind of chasing this horse by its tail.
Representative Williams.
Number 1257
REPRESENTATIVE WILLIAMS: Thank you, Mr. Chairman. I -- all -- all
of that aside, Representative Elton played the 'if game' here. He
-- so I think -- and the Chairman let him go along with it, you
went along with it.
CHAIRMAN KOTT: You'll know -- you'll know when you get too far
beyond the 'if'.
REPRESENTATIVE WILLIAMS: I understand. I've been in the campaign
that started in -- when I left this legislature last June 7th, I
guess it was I was campaigning, and I know what it's like to
campaign. I campaigned from June through November, everyday. And
for me to get off and focus on something that we're having trouble
here trying to interpret -- here in this committee where we've had
-- how long -- and there's no pressure on us other than these --
the news. We're not -- our only pressure is just whether or not
we're going to say things right and not hurt anybody's feelings.
I'm not here to want to hurt anybody's feelings. I'm not here to
say that you did something wrong, or anything. But I would like to
play the 'if game' also. Now I look at what the case review that
you -- in Exhibit E, that come up with that -- that was done on
April 19th, and Representative Sanders said he felt that there was
political under-current on -- on this. Let's say there was, okay?
And I'm not saying that you did it ...
MS. MACNEILLE: I understand ...
REPRESENTATIVE WILLIAMS: ... but, let -- let's say that there was
some political under-current. I look at -- I've called meetings in
-- in together by -- you know, Indian politics is probably the
hardest one to give it to because I've dealt with it 20 years in
the City of Saxon and in the Cape Fox Corporation, and I know how
hard it is to get people together. But let's say if there was --
I -- I'm looking at this in -- in Jerry's eyes right now, and I'm
saying that -- and you're having a hard time trying to get all of
these meetings together. You tried on June 7th to get a meeting
together, and I can agree with those legislators that they had a
week off, you know, three weeks off actually. You know, they went
home and they probably all played around, at least those two
legislators did, you know, and okay. Well, you know, I think we
should have said, if you would have been a little bit more stern as
a leader, that you are, and said, we are going to have a meeting on
this day because this is very important. We have election coming
up. We all know that election is coming up, and we all know how
this affected the election, or could have affected the election,
that that undercurrent was there. And I'm not saying that it was,
but it -- it looks like it to me. Okay. Being it in this manner,
saying, okay, "I'm the chairman, we're going to have a -- a meeting
and it's going to be on teleconference on this day -- on July 1st.
And -- well, let's get -- get this moving so that Representative
Sanders, if there is anything that is going to affect him in the --
in the primary, or the election, that it wouldn't bother him." I
look at how you've made your portion of cooperation of
Representative Sanders in -- in there that -- his tactics, or
whatever, but -- and -- and you went through all of these areas
that he's fighting you with this and he's arguing about that, and
then he's also running a campaign. You know, I know how it is to
run a campaign and be threatened by that campaign. We are egos out
there on the line, whatever is out there on the line, big time. So
you're not really thinking correctly. Okay. How -- could you have
done it differently? Could you have come around and said -- been
a little bit -- been a little bit more stronger in your leadership?
Number 1489
MS. MACNEILLE: I'm sure I could have been a lot stronger in my
leadership. Sometimes I've been accused of being too strong. And
I'm, you know -- and I don't feel like I'm -- I'm a strong leader
at all, I'm just kind of trying to be a sheep dog, keep these
people going. But there's one thing I want to say about the Ethics
Committee and elections. If we try and speed stuff up because of
elections, we're accused of taking a partisan position. If we try
and slow things down because of elections, we're -- we're accused
of -- of we help one side or the other. We just had to just do it
and -- and try not to do it. Try not to sway things one way or the
other. Now, I understand what you're saying, and I -- if I've --
I wish there -- there was some handle I had over, specifically,
legislators on the Ethics Committee to make them show up because I
don't. You know, I can beg, I can plead, I can order. I don't
have any power over you people. Susie can be the most assiduously
polite and careful staff person suggesting that they really need to
show up. And I have begged and pleaded over the phone with people
to try and get them to come to meetings. And they have -- you
know, appropriately, you all have your lives and paths to live, and
I don't have any handle over that. I can't subpoena you to -- you
know, to show up at a meeting. Was there some way I could have had
a meeting sooner? Not that I know if, but, I -- I'm, you know, I'm
sure in the realm of human existence, there's somebody who could
have made it happen.
Number 1576
MS. BARNETT: I just wanted to add one. The committee, in these
formally adopted procedures, also, early on, decided they could not
discuss confidential cases over teleconference for a variety of
reasons. So it actually does require face-to-face. That also
brings that if there is more than one case out there, we have to
coordinate several other things. It's not always just one case.
And -- and then speaking on the committee's behalf, there -- there
was no indication from Representative Sanders as to whether
speeding up, or slowing down was what he would prefer.
REPRESENTATIVE WILLIAMS: Uh-huh. Well, I could appreciate where
Representative Sanders was coming, as far as paying attention to
what was happening here and -- on this Ethics Committee. I mean,
when you're campaigning that's basically all you look at, is
campaigning. And -- and we don't have time to worry about what's
happening here. I would liked to have been -- I bet we would all
liked to have said, okay, you know, we all understand. And you
answered the question earlier when you said if we -- we would have
left it if -- if we could have. We would have said, okay, we will
just let this go until after the election. We'll deal with it at
that time. So we know that it's there. But, I'm -- I'm trying to
get an answer, or get a good feeling as far as the obstruction --
obstructing and not cooperating. I would like to -- to know with
all that was happening since the time it went public, and since --
what -- what day did it go public?
Number 1679
MS. MACNEILLE: The formal charges were issued September 24th,
because that's the ...
REPRESENTATIVE WILLIAMS: That was the day it went public.
MS. BARNETT: Actually, just a correction. It -- the copy was sent
to Lester Syren and Representative Sanders, and -- and then I
believe it was the next day that -- that if someone asked what the
charges were. I may be incorrect, but there was a gap in between.
Possibly the same day, but not the same moment.
REPRESENTATIVE WILLIAMS: Okay. I'm still on this 'if game', and
I'm trying to understand what was happening, and everything that
had happened since September 24th through election -- or through
what, October -- October 20th, or thereabouts. Was that the 24th,
or -- where the judge ruled and the committee said, okay, we'll
just wait till November 14th, or whatever day that was.
MS. MACNEILLE: Well, okay. Well, let -- if I can address that.
The committee said, November 14th. On ...
REPRESENTATIVE WILLIAMS: October 10th.
MS. MACNEILLE: ... October 10th, okay. There was no judge in this
picture at all until November 22nd ...
MS. BARNETT: October ...
MS. MACNEILLE: ... oh, October 22nd. We were always going to have
the hearing after the election. We never said we wanted to have
the hearing before the election. And -- and, you know, there's --
that's -- there are documents to -- to back that up.
CHAIRMAN KOTT: Further questions?
REPRESENTATIVE WILLIAMS: Not right now.
Number 1770
CHAIRMAN KOTT: Representative Nicholia.
REPRESENTATIVE NICHOLIA: Thank you, Chair. First I'd like to
thank you for your hard work. I'm just sitting here for the past
two days. I can't understand and -- and get a clear picture what
a difficult task that the three of you have. And the first
question I would like to ask, through the Chair, we've been talking
about partisan politics here and it's been said that -- that this
is a partisan committee aimed at protecting its own. And I don't
know if you can answer this or not but, I'd like to know what is
the political makeup of the committee, and what was the political
makeup of the committee on November 14th and 15th?
MS. MACNEILLE: Okay. I'd be happy to answer that. We have five
public members. I and Edith Vorderstrasse, from Barrow, are
registered democrats.
UNIDENTIFIED SPEAKER: I didn't remember who ...
MS. MACNEILLE: Mr. Joe Donohue, from Soldotna, I guess, is where
he's from, is a 'U' or an 'O', or a -- you know, something.
Neither of -- neither republican or democrat. And Shirley McCoy,
from Juneau, and Ed Granger, from Anchorage are the registered
republicans. And then our legislative participant, Cynthia Toohey,
is republican.
REPRESENTATIVE NICHOLIA: If I might ask questions, Mr. Chair?
CHAIRMAN KOTT: Please.
REPRESENTATIVE NICHOLIA: Another argument that Representative
Sanders had yesterday was that the person who filed the complaint
did not show up to testify. Is he required to testify, or can he
just file the complaint?
MS. MACNEILLE: He is not required to testify, and the committee as
-- you know, our side of it, had no particular control about
whether he did or didn't testify. The presentation of the case --
the decision was made by Mr. Spaan. The way that -- that
complaints work, in my experience on the varies committees, seeing
a lot of complaints, is that lots of times the person who files the
complaint may or may not have personal knowledge about what's going
on. And they may or may not be at all useful to the committee in
making the final decision about what the -- whether there's a
violation or not. And in this instance, the committee didn't feel
there was any particular hole in the evidence because the person
who filed the complaint didn't testify.
MS. BARNETT: And he was not under subpoena.
REPRESENTATIVE NICHOLIA: This is a question, through the Chair, to
Margie MacNeille. Did Representative Sanders ever approach you
before your confirmation to the Ethics Committee to discuss what he
-- what he perceived as a conflict of interest?
MS. MACNEILLE: No, I ...
REPRESENTATIVE NICHOLIA: So, when did this occur? When did this
start -- start occurring?
MS. MACNEILLE: As far as I know ...
REPRESENTATIVE NICHOLIA: Or let me rephrase that. Are -- when did
it -- or when did it appear to you that he had this -- this charge
against him?
MS. MACNEILLE: Okay. First, I'd -- as far as I know,
Representative Sanders and I spoke on the phone once about the
first violation, and other than that we -- we haven't ever talked.
But, as far as I know, the first time I heard, specifically, this
concern about my husband's contract was in a letter to -- to Mike
White, and so that must have been in -- in October. If there's
been other times [indisc.] I don't know. I think that
Representative Sanders talked about the committee, and maybe about
me, in particular, during the campaign season, and when that was I
don't know. And I didn't see it, so. And I don't know if he
raised that issue then or not.
REPRESENTATIVE NICHOLIA: Okay, thank you.
Number 1962
CHAIRMAN KOTT: Margie, since everybody's on the 'what if' end here
...
MS. MACNEILLE: In the perfect world, yeah ...
CHAIRMAN KOTT: ... in the perfect world. What if the legislature,
in some previous year, would have passed some kind of resolution,
statute, something of that nature, or citation, if you will,
honoring or establishing the existence of a straw poll in Alaska,
would that have made any difference in sending this letter now, to
a constituent who participates -- who participated in a recognized
straw poll?
MS. MACNEILLE: I don't know. You know, it certainly would have
been something for us to look at, but -- but I don't know.
CHAIRMAN KOTT: Okay, so it's still a 'what if'. Representative
Vezey.
Number 2001
REPRESENTATIVE VEZEY: Thank you, Mr. Chairman. I have just, I
think, three questions and you started to answer it a minute ago,
but I'm confused on why the Ethics Commission did a press release.
Do you consider that an appropriate part of the process, or -- or,
I don't understand that.
MS. MACNEILLE: Okay. Are you talking about the press release in
this case, or ...
REPRESENTATIVE VEZEY: In this case.
MS. MACNEILLE: What happens is, we do something and -- Susie can
talk about it for me -- her but, my phone machine goes bezerk.
We've got 12 million people, I got people calling, I got people
saying, oh please -- you know, and -- and it seemed to us that the
way to deal with that is here's something, you know, and there it
is. Here's a press release and -- and ...
MS. BARNETT: Well, it wasn't actually a release, it was only the
decision.
MS. MACNEILLE: Yeah. And -- but, yeah, we had conference
[indisc.].
MS. BARNETT: Right.
MS. MACNEILLE: Yeah. Press conference.
MS. BARNETT: I mean, there was time for that, but there was no
additional spin on -- on the story. It was -- the public decision
was issued and Margie and Cynthia were available to answer
questions about it. And -- and it is true that it ends up being an
all day event, otherwise, of the non-stop.
Number 2061
REPRESENTATIVE VEZEY: And this is probably just your opinion, I
realize, but in your opinion, were there any criminal issues
involved in this investigation or complaint?
MS. MACNEILLE: In my personal view, which is the only thing, I
guess, I can talk about, I didn't feel that was what we were
talking about [indisc.].
REPRESENTATIVE VEZEY: And I'm not exactly clear, I could --
probably because I haven't read the law enough times but, you know,
I have read it. But when does the process leave the area of
confidentiality and become a public process?
MS. MACNEILLE: Looking at Susie's chart, which you can't see
anymore, their are a couple of times there's certain kinds of
dismissals that are public, but in this -- in the path that this
followed it became public at the formal charge stage.
REPRESENTATIVE VEZEY: At the formal charge stage, okay.
MS. MACNEILLE: Yeah.
REPRESENTATIVE VEZEY: Mr. Chairman, I don't have anymore
questions, but I do have some comments, or I could save them for
later if -- if you wish.
CHAIRMAN KOTT: If you have some comments related to the questions,
please continue.
REPRESENTATIVE VEZEY: First, I would like to comment that I think
that, you know, you used good reasoning and good logic in coming up
with your interpretation of a definition of governmental versus
non-governmental purpose. However, I don't agree with your
finding. And the reason being is prior to the straw poll, that
we're talking about here being held, I don't think that I viewed
that as something of a political or partisan, or campaign value.
I viewed it as an economic activity for the ...
TAPE 97-4, SIDE B
Number 000
REPRESENTATIVE VEZEY (continued): ... and I viewed it as an
opportunity to bring state of Alaska issues to the National arena.
I don't remember the figures, but it -- it was reported that the
straw poll brought over half a million dollars of outside money
into the state of Alaska during a very, very slow time of the year,
and it was an economic boom to certain parts of our economy and
certain areas of the state. And I look upon it strictly in -- in
that regard. I -- I don't see any non-governmental purpose and a
campaign issue involved there. The straw poll was simply was a
chance to market Alaska and to bring convention money into the
state of Alaska. That happened to be the way I look at it. Let's
see, I had one other comment I'd like to make if I can remember
what it was. The -- and I do -- if I understand it correctly, the
crux of the issue here is, was state resources used to -- for a
non-governmental purpose -- to send out a letter for a non-
governmental purpose. Okay, so that -- that is the main thing
we're talking about. And I think we've beat to death the -- the
fact about the personal office allowance. I think we beat that one
down. If I have another comment -- I can't remember what it was,
but that is, I think, something that was apparent to me right on is
from far before the time we actually had the straw poll, I viewed
as more of an economic and marketing activity than I did political.
And afterwards it became apparent that it was a tremendous success.
And -- and ...
MS. MACNEILLE: It just sticks out. It's a political event. It's
a tourist activity. I mean ...
REPRESENTATIVE VEZEY: I'm sorry, I couldn't hear.
MS. MACNEILLE: It's an interesting thought of a political event as
tourist activity.
REPRESENTATIVE VEZEY: Well, ...
MS. MACNEILLE: I mean, I -- I see your point. It's just ...
REPRESENTATIVE VEZEY: ... conventions are very, very big business,
and on a national scale cities spend a lot of government money
trying to market two political parties to get them to hold their
conventions in their city. It is a legitimate government activity.
I only regret that we didn't recognize the potential that we had
there, and to spend more money on marketing 'cause we -- we could
have made it a bigger industry.
MS. MACNEILLE: Well, there's next time [indisc.].
REPRESENTATIVE VEZEY: Thank you, Mr. Chairman.
CHAIRMAN KOTT: Representative Porter.
Number 96
REPRESENTATIVE PORTER: I had one other question I think goes to
the merits, I guess. Would you think that -- should I infer from -
- from this decision that you would find -- or that generally the
-- the committee would find it improper for a legislator to write
anything to a group of constituents that were categorized by their
party?
MS. MACNEILLE: No.
REPRESENTATIVE PORTER: Why is this different?
MS. MACNEILLE: Because what's in the letter. If you choose to
write to a particular group of people, that's -- you know,
republicans or democrat, you know, some particularly partisan
identified, I think, about some particular issue of -- Bill such
and such, that's fine.
Number 43
REPRESENTATIVE PORTER: The topic then -- the only people that
could participate in the poll were republicans, so that's the only
people that he could have written to. But it was more about
[indisc.--coughing] topic of the letter and the fact that it was to
his party. The topic being thanking them for participating in a
partisan, politic process.
CHAIRMAN KOTT: Representative Vezey.
REPRESENTATIVE VEZEY: Sorry, Mr. Chairman. I remember my other
comment was just that in the straw poll, to participate, you had to
be republican for a minute or two. You could change your
registration right there as you got your ballot to vote in the
straw poll, and you could walk out the door and change it back to
anything else right after you've left. So, it -- I don't know how
many people did that. I -- I do know that a lot of people did
register at the straw polls, and I -- I saw the numbers. It was a
very high number. But to say that just because they registered for
a period of time at the straw poll that they were republicans is,
I don't think, a terribly accurate statement.
Number 197
MS. MACNEILLE: You know -- there -- all we could deal with is the
testimony we had before us ...
REPRESENTATIVE VEZEY: I -- I understand ...
MS. MACNEILLE: ... they were republicans and how long, how
sincerely they were republicans I don't know, don't want to know.
I just ....
CHAIRMAN KOTT: Since Representative Vezey did bring up an issue
dealing with state funds, I want to ask you, just in general terms,
do you distinguish between office allowance accounts, that is, one
that is accountable that is held by legislative affairs agency,
versus one that you receive in lump sum, and is there some
differentiation between the kinds of things you can spend you money
on, basically, is what I'm asking?
MS. MACNEILLE: Yeah. As I understand it, the $6,000, you have
your choice. You can say, take the taxes out of it and -- and hand
it over. And once that's done, the Ethics Committee has absolutely
nothing to do with what you do with that money. You know, it is
yours, and have at it. If the -- if it is kept with the state and
-- and issued on an approved, you know, this is a business expense
of -- of me as a legislator, then in our view, that's -- that's
state money and it's being vouchered out for -- for public purposes
and -- and not for personal purposes, or political purposes. You
know, political party purposes.
CHAIRMAN KOTT: Are you using some area in the statute, or
regulation, or is it just policy in regards to let's say keeping
your $6,000 with the Legislative Affairs Agency in purchasing items
that could, or could not be associated with an office? Do you make
that distinguishing difference when you look at these kinds of
things? Or does it have to be when you expend this money directly
affiliated with your office? And could I -- I guess what I -- what
I'm saying, could I take by $6,000 and buy a used car?
MS. MACNEILLE: If you -- if -- if you took your $6,000 and paid
taxes on it, you could buy a used -- you're not going to buy a new
car for that, that's for sure. You're going to buy a ...
CHAIRMAN KOTT: Not this day and age.
MS. MACNEILLE: ... used car, a rust bucket. But -- but if you
left it with ...
MS. BARNETT: LAA ...
MS. MACNEILLE: ... LAA, I'm sorry, I'm really bad about who these
people are, and handed them a voucher and said, you know, buying a
used car, and I suppose if you had a reason that that used car was,
you know, important to your legislative function, you know, that's
-- that's fine. But if you're buying a used car for your, you
know, teenager to drive to his job on, that's not okay. Am I
answering your question?
CHAIRMAN KOTT: Yeah, you're -- you're getting there.
MS. MACNEILLE: I'm sorry.
CHAIRMAN KOTT: You're getting there.
MS. MACNEILLE: I wish this stuff were easy, it's -- I can't make
it that way.
Number 365
CHAIRMAN KOTT: I mean, there's, I think a lot of concern among
many of my colleagues regarding leaving your money now in this
office allowance account with LAA is unfortunate because now we've
got to pay the tax man, you know, $1,500 or whatever it is, and we
don't have the amount remaining that we would like to have to
provide the constituency service that, I think our constituents
have become -- become used to. So, you know, it's -- it's a real
concern, and when we start delving into this issue I think we need
to look extremely close at -- at the areas involved that determine
what you can use your $6,000 for, versus what you can't use it for.
And I, you know, I suppose that anything you purchase you could
probably, with some stretch of your imagination, justify it as an
office expense if that's what we are, in fact, talking about.
Something that is associated with the office, whether it's a TV or
a stereo, or a rug or whatever the case might be. But, I mean,
certainly, interchangeably, you could use it as a personal item as
well.
MS. BARNETT: And -- and I think that your -- your first check is -
- is with the IRS and -- and with guidelines that LAA is putting
forward, and perhaps they have by now. But what are legitimate
offices expenses, what -- what expenses allow you to not pay tax?
And -- and that's your first check there. And then the second
would be, is this for -- purely for my personal benefit. I mean,
if those are going to obvious then -- then you can run your own
test. And then again, I think that a TV is a great example of
something that can be purchased out of an office allowance if it's
sitting in the office to sit and watch Gavel to Gavel. There --
there's no question that's -- I think 99 percent of the -- of the
questions that legislators have that they'll be able to answer
between the IRS, LAA and yourselves. And if there's a fuzzy area,
give us a call.
CHAIRMAN KOTT: Thank you. Representative -- Speaker Phillips.
Number 485
REPRESENTATIVE PHILLIPS: Thank you, Mr. Chairman. Earlier you
stated that a person does not have -- a person filing an ethics
complaint against the legislature does not have to file that ethics
complaint in person, nor do they have to have personal knowledge of
the complaint in order to be able to file a complaint. After
dealing with the law, as it is on the books today, for several
years, would you recommend a change in the law that says if you are
going to file a complaint -- an ethics complaint, number one; you
must have personal knowledge, you must know what you're doing
personally, you must have a personal reason for filing this
complaint and if you're serious about filing a complaint, you shall
file it in person with the Ethics Committee.
MS. MACNEILLE: Okay. I'm sorry if I was misunderstood about the
question of filing in person. People do file in person. They, you
know, they sign it, it's notarized. Sometimes it comes in the
mail, sometimes it comes under Susie's door.
REPRESENTATIVE PHILLIPS: But no, I mean -- I mean ...
MS. MACNEILLE: ... sometimes it comes in person, but ...
REPRESENTATIVE PHILLIPS: ... and, I understand that ...
MS. MACNEILLE: Yes ...
REPRESENTATIVE PHILLIPS: ... I mean, that's the way most people
will file it. But when it comes to the -- the actual complaint
process that they should have to come before the Ethics Committee
in person to make their -- to make their case.
Number 551
MS. MACNEILLE: I have a couple of thoughts about that. The first
one is that I think the Ethics Committee function is as a safety
valve. It's a way -- a method to allow the people in the public
who are concerned about things they understand, or hear about
legislatures, to know that that gets addressed. That they can
raise it in some fashion. And because there is -- you know, we do
serve that function, I think we need to be careful about narrowing
too carefully, who -- who gets to file complaints. I also think
that -- [indisc.] daggers down my back here -- that when you have
a legislature that is in one place, in Juneau, and a lot of people
are elsewhere and the only information they have about the
legislature is media, Gavel to Gavel, things like that, that if you
say a complainant can't -- you know, have a complainant attach a
newspaper clipping, that there'll be sometimes that legitimate
complaints don't ever get to the committee. And I -- there
certainly have been complaints filed with our committee that went
all the way, that came out of stuff people read the newspaper and
complained to us about. And maybe the newspaper accounts turned
out not to be accurate from our view point, but there -- there was
-- there was a germ of something there and -- and we went on with
it. It is exceedingly uncomfortable for legislators to be subject
to this kind of thing. And it is exceedingly uncomfortable because
it's the legislators in power who get the complaints. You know,
people don't much file complaints against anybody in the minority,
whoever the minority is. But I think it is one way of -- of
allowing that public concern to come up. If you want to change it,
that's -- that's okay, but that's just my view.
CHAIRMAN KOTT: Representative Elton.
REPRESENTATIVE ELTON: Thanks, Mr. Chair. Kind of a follow-up to
Speaker Phillip's question. Any complaint that you accept has to
be given under oath?
MS. MACNEILLE: Notarized, yeah.
REPRESENTATIVE ELTON: Well, could you explain to me what
notarization means. I -- I mean, I -- I -- I used the word oath in
-- kind of on purpose, and ...
MS. MACNEILLE: Okay. And I ducked it. I'll let Susie answer it.
MS. BARNETT: Oh, great. No, she gets the complaints. Are you --
you asking what a complaint looks like and what -- what notarized
means.
REPRESENTATIVE ELTON: I -- I guess I'm asking whether or -- I --
I -- whether or not there is a disincentive to file a false
complaint.
MS. BARNETT: Well, there is a part of the, you know, criminal code
that a false accusation brings -- I have to look it up and see what
the penalty is. But yes, so there -- there -- there is that part,
that -- that certainly if you felt -- if, hypothetically, you
received a complaint against you and you felt it was a false
accusation, then you can go over to the criminal code and ...
MS. MACNEILLE: Class A misdemeanor, yeah.
REPRESENTATIVE ELTON: And -- and -- and the notarization portion
of that is -- is what would trigger ...
MS. BARNETT: Right. They are saying that -- that I wrote this.
That I believe this. That this is ...
REPRESENTATIVE ELTON: And -- and I think the second point, and --
and I always hate restate something -- something that somebody else
has asked. But the way I understood the second comment from the
Speaker was, could there be a -- a requirement that somebody who
has filed a complaint to participate in the process beyond, simply
filing the complaint. And I ...
REPRESENTATIVE PHILLIPS: That's correct.
REPRESENTATIVE ELTON: And -- and is it -- can any party compel the
participation of another person so -- so either the person the
complaint was filed against, or the [indisc.--mic interference] the
committee, itself, can compel the attendance of anybody?
MS. MACNEILLE: Yeah, we have -- yeah -- can subpeona them. And
I've looked at the complaint form which someone signs -- here's the
statement right above the signature: I understand that a person
commits the crime of false accusation if the person knowingly, or
intentionally, initiates a false complaint with the Select
Committee on Legislative Ethics; cites the statute. The above is
a true, and accurate representation of my belief that a violation
of the legislative ethics law occurred; signature, subscribed and
sworn to before me this, blank -- that's the notary. So, that's
the answer that you were given.
Number 811
CHAIRMAN KOTT: Further questions. Hearing none, seeing no one
jump to the fore front, I guess this concludes the questioning and
answer period. Again, on behalf of the committee and many members
who are probably watching Gavel to Gavel at home, we thank you for
being so candid for enlightening us in the process. I think all of
us have a good understanding of what you've gone through during the
course of this activity related to this particular matter. Again,
I -- I thank you for coming down and being available to us. It
certainly means a lot to -- to all of us. Anybody else want to
make any ....
REPRESENTATIVE PORTER: I -- if I may, Mr. Chairman. I would just
say thank you very much for coming down and -- and taking the time
to help us try to deal with the situation that has gone on too
long, nobody's fault, but I think it's gone on too long and really
needs to be wrapped up and put to bed. And you have helped that
process immensely. And I -- I certainly want you to know from me,
and I'm sure from all the other members here, that any implication,
no matter how subtle, is incorrect that you're here because we feel
that you have done something wrong. We, by statute, are forced to
deal with the recommendations that you have given us. And in this
particular case, we just didn't have enough information to do that
appropriately. And -- and you have helped us immensely towards
that end. Our thanks.
CHAIRMAN KOTT: There was one final comment, now that I remember.
You made a comment that said something to the effect that, "After
I say this you're going to be more angry at us." I don't think
that's the case. No one is angry at you.
MS. MACNEILLE: I -- I understand. I -- I ...
CHAIRMAN KOTT: I remember, and ...
MS. MACNEILLE: Impatience, I guess is the -- we don't -- we don't
often get to bring you good news. And ...
REPRESENTATIVE PORTER: I can relate to that. [Indisc.--
simultaneous-laughter].
CHAIRMAN KOTT: Okay.
REPRESENTATIVE VEZEY: Mr. Chair.
Number 927
CHAIRMAN KOTT: Representative Vezey.
REPRESENTATIVE VEZEY: I would like to comment that we all
volunteered for this job.
Number 938
CHAIRMAN KOTT: This is true. Thank you very much, again. And
this committee will stand in recess until tomorrow at the Call of
the Chair.
[Chairman Pete Kott recessed the House Rules Committee meeting at
8:52 p.m.]
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