Legislature(1997 - 1998)

04/07/1998 08:06 AM STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
       HOUSE STATE AFFAIRS STANDING COMMITTEE                                  
                   April 7, 1998                                               
                     8:06 a.m.                                                 
                                                                               
                                                                               
MEMBERS PRESENT                                                                
                                                                               
Representative Jeannette James, Chair                                          
Representative Ivan Ivan, Vice Chairman                                        
Representative Ethan Berkowitz                                                 
Representative Joe Ryan                                                        
Representative Kim Elton                                                       
Representative Mark Hodgins                                                    
Representative Jerry Sanders                                                   
                                                                               
MEMBERS ABSENT                                                                 
                                                                               
Representative Al Vezey                                                        
                                                                               
COMMITTEE CALENDAR                                                             
                                                                               
* HOUSE BILL 330                                                               
"An Act repealing the termination date of the state training and               
employment program; and providing for an effective date."                      
                                                                               
     - SCHEDULED BUT NOT HEARD                                                 
                                                                               
* HOUSE BILL 257                                                               
"An Act relating to voter qualification, disqualification, and                 
registration; to voter registration officials; to election notices;            
to mail elections; to certain voting procedures; to the                        
transportation of ballots; and to the official election pamphlet               
and certain immunity from liability regarding claims arising from              
publication of the official election pamphlet."                                
                                                                               
     - SCHEDULED BY NOT HEARD                                                  
                                                                               
CS FOR SENATE BILL 105(FIN) AM                                                 
"An Act relating to legislative and executive branch ethics;                   
relating to campaign finances for candidates for state office;                 
relating to the conduct and regulation of lobbyists with respect to            
public officials; relating to the filing of disclosures by certain             
state employees and officials; making a conforming amendment to the            
definition of 'public official' for employment security statutes;              
and providing for an effective date."                                          
                                                                               
     - HEARD AND HELD                                                          
                                                                               
                                                                               
(* First public hearing)                                                       
                                                                               
PREVIOUS ACTION                                                                
                                                                               
BILL: SB 105                                                                   
SHORT TITLE: ETHICS/LOBBYING/CAMPAIGN FINANCE                                  
SPONSOR(S): RULES BY REQUEST OF LEGISLATIVE ETHICS COMMITTEE                   
                                                                               
Jrn-Date    Jrn-Page           Action                                          
 2/25/97       494     (S)  READ THE FIRST TIME - REFERRAL(S)                  
 2/25/97       494     (S)  STATE AFFAIRS, FINANCE                             
 3/11/97               (S)  STA AT  3:30 PM BELTZ ROOM 211                     
 3/11/97               (S)  MINUTE(STA)                                        
 3/13/97               (S)  STA AT  3:30 PM BELTZ ROOM 211                     
 3/13/97               (S)  MINUTE(STA)                                        
 3/18/97               (S)  MINUTE(STA)                                        
 3/25/97               (S)  STA AT  3:30 PM BELTZ ROOM 211                     
 3/25/97               (S)  MINUTE(STA)                                        
 3/26/97       873     (S)  STA RPT  CS  3DP   NEW TITLE                       
 3/26/97       873     (S)  DP: GREEN, MILLER, WARD                            
 3/26/97       873     (S)  FISCAL NOTE TO SB (ADM)                            
 3/26/97       873     (S)  ZERO FISCAL NOTE TO SB (LAA)                       
 3/26/97       873     (S)  FISCAL NOTE TO CS (ADM)                            
 4/10/97               (S)  FIN AT  5:00 PM SENATE FINANCE 532                 
 4/10/97               (S)  MINUTE(FIN)                                        
 4/10/97               (S)  MINUTE(FIN)                                        
 4/15/97               (S)  FIN AT  8:00 AM SENATE FINANCE 532                 
 4/15/97               (S)  MINUTE(FIN)                                        
 4/16/97               (S)  FIN AT  8:00 AM SENATE FINANCE 532                 
 4/16/97               (S)  MINUTE(FIN)                                        
 4/16/97               (S)  MINUTE(FIN)                                        
 4/16/97      1163     (S)  FIN RPT  CS  2DP 5NR   NEW TITLE                   
 4/16/97      1163     (S)  DP: PEARCE; DP IF AM: PHILLIPS                     
 4/16/97      1163     (S)  NR: SHARP, PARNELL, ADAMS, TORGERSON,              
 4/16/97      1163     (S)  DONLEY                                             
 4/16/97      1163     (S)  PREVIOUS ZERO FN APPLIES (LAA)                     
 4/16/97      1163     (S)  ZERO FNS TO CS (LABOR, LAW)                        
 4/16/97      1163     (S)  PREVIOUS ZERO FN APPLIES (LAA)                     
 4/18/97               (S)  RLS AT 10:45 AM FAHRENKAMP RM 203                  
 4/18/97               (S)  MINUTE(RLS)                                        
 4/18/97      1276     (S)  RULES TO CALENDAR & 1NR   4/18/97                  
 4/18/97      1279     (S)  READ THE SECOND TIME                               
 4/18/97      1279     (S)  FIN  CS ADOPTED UNAN CONSENT                       
 4/18/97      1280     (S)  AM NO  1     OFFERED AND WITHDRAWN                 
 4/18/97      1281     (S)  AM NO  2     FAILED Y4 N13 E3                      
 4/18/97      1282     (S)  AM NO  3     FAILED Y4 N13 E3                      
 4/18/97      1283     (S)  AMENDMENTS 4, 5 NOT OFFERED                        
 4/18/97      1283     (S)  AM NO  6     ADOPTED Y12 N5 E3                     
 4/18/97      1285     (S)  AM NO  7     FAILED Y7 N10 E3                      
 4/18/97      1286     (S)  AM NO  8     FAILED Y5 N12 E3                      
 4/18/97      1287     (S)  AM NO  9     ADOPTED Y17 N- E3                     
 4/18/97      1291     (S)  ADVANCED TO THIRD READING UNAN                     
                            CONSENT                                            
 4/18/97      1291     (S)  READ THE THIRD TIME  CSSB 105(FIN) AM              
 4/18/97      1292     (S)  PASSED Y15 N2 E3                                   
 4/18/97      1292     (S)  EFFECTIVE DATE(S) SAME AS PASSAGE                  
 4/18/97      1292     (S)  LINCOLN  NOTICE OF RECONSIDERATION                 
 4/21/97      1334     (S)  RECON TAKEN UP - IN THIRD READING                  
 4/21/97      1335     (S)  RETURN TO SECOND FOR AM 10 UNAN                    
                            CONSENT                                            
 4/21/97      1335     (S)  AM NO 10     ADOPTED Y14 N5 E1                     
 4/21/97      1336     (S)  AUTOMATICALLY IN THIRD READING                     
 4/21/97      1337     (S)  PASSED ON RECONSIDERATION Y17 N2 E1                
 4/21/97      1337     (S)  EFFECTIVE DATE(S) SAME AS PASSAGE                  
 4/21/97      1370     (S)  TRANSMITTED TO (H)                                 
 4/22/97      1232     (H)  READ THE FIRST TIME - REFERRAL(S)                  
 4/22/97      1233     (H)  STATE AFFAIRS, FINANCE                             
 2/05/98               (H)  STA AT  8:00 AM CAPITOL 102                        
 2/05/98               (H)  MINUTE(STA)                                        
 2/12/98               (H)  STA AT  8:00 AM CAPITOL 102                        
 2/12/98               (H)  MINUTE(STA)                                        
 2/17/98               (H)  STA AT  8:00 AM CAPITOL 102                        
 2/17/98               (H)  MINUTE(STA)                                        
 2/19/98               (H)  MINUTE(STA)                                        
 2/24/98               (H)  STA AT  3:00 PM CAPITOL 102                        
 2/24/98               (H)  MINUTE(STA)                                        
 2/26/98               (H)  STA AT  3:00 PM CAPITOL 102                        
 2/26/98               (H)  MINUTE(STA)                                        
 3/03/98               (H)  STA AT  3:00 PM CAPITOL 102                        
 3/03/98               (H)  MINUTE(STA)                                        
 3/05/98               (H)  STA AT  3:00 PM CAPITOL 102                        
 3/05/98               (H)  MINUTE(STA)                                        
 3/12/98               (H)  STA AT  1:00 PM CAPITOL 102                        
 3/12/98               (H)  MINUTE(STA)                                        
 3/19/98               (H)  STA AT  3:00 PM CAPITOL 102                        
 3/19/98               (H)  MINUTE(STA)                                        
 3/26/98               (H)  STA AT  1:00 PM CAPITOL 102                        
 3/26/98               (H)  MINUTE(STA)                                        
 4/04/98               (H)  STA AT 10:00 AM CAPITOL 102                        
 4/04/98               (H)  MINUTE(STA)                                        
 4/07/98               (H)  STA AT  8:00 AM CAPITOL 102                        
                                                                               
WITNESS REGISTER                                                               
                                                                               
BEN BROWN, Legislative Administrative                                          
  Assistant to Senator Kelly                                                   
Alaska State Legislature                                                       
Capitol Building, Room 101                                                     
Juneau, Alaska  99801                                                          
Telephone:  (907) 465-4823                                                     
POSITION STATEMENT:  Provided information on SB 105.                           
                                                                               
SUZIE BARNETT, Professional Assistant                                          
  Legislative Ethics Committee                                                 
P.O. Box 101468                                                                
Anchorage, Alaska  99510                                                       
Telephone:  (907) 258-8172                                                     
POSITION STATEMENT:  Available to answer questions on SB 105.                  
                                                                               
ACTION NARRATIVE                                                               
                                                                               
TAPE 98-49, SIDE A                                                             
Number 0001                                                                    
                                                                               
CHAIR JEANNETTE JAMES called the House State Affairs Standing                  
Committee meeting to order at 8:06 a.m.  Members present at the                
call to order were Representatives James, Ryan, Elton, Hodgins and             
Sanders.  Representatives Berkowitz and Ivan arrived at 8:18 a.m.              
and 8:30 a.m. respectively.                                                    
                                                                               
SB 105 - ETHICS/LOBBYING/CAMPAIGN FINANCE                                      
                                                                               
Number 0003                                                                    
                                                                               
CHAIR JAMES announced CSSB 105(FIN) AM, "An Act relating to                    
legislative and executive branch ethics; relating to campaign                  
finances for candidates for state office; relating to the conduct              
and regulation of lobbyists with respect to public officials;                  
relating to the filing of disclosures by certain state employees               
and officials; making a conforming amendment to the definition of              
'public official' for employment security statutes; and providing              
for an effective date," was up before the committee and confirmed              
Suzie Barnett was available via teleconference.                                
                                                                               
Number 0005                                                                    
                                                                               
BEN BROWN, Legislative Administrative Assistant to Senator Kelly,              
Alaska State Legislature came before the committee.  He indicated              
they would pick up where they left off on Version LS0074\L, 4/2/98,            
Section 28, page 19.                                                           
                                                                               
Number 0010                                                                    
                                                                               
CHAIR JAMES introduced Representative Jerry Sanders as a new member            
of the House State Affairs Standing Committee.                                 
                                                                               
Number 0013                                                                    
                                                                               
MR. BROWN explained Section 28 increases the amount that one can               
take in a gift annually, AS 24.60.080(a) currently has a limit of              
$100, the ethics committee recommended increasing it to $250                   
because $100 isn't a substantial enough level.                                 
                                                                               
MR. BROWN stated during session, it's not legal to take anything               
from lobbyists except for food and beverage for immediate                      
consumption.  That's what they have been enforcing.  This actually             
puts it into statute in a real explicit manner.                                
                                                                               
     (a) Except as otherwise provided in this section, a [A]                   
     legislator or legislative employee may not solicit, accept, or            
     receive, directly or indirectly, a gift worth $250 [$100] or              
     more, whether in the form of money, services, a loan, travel,             
     entertainment, hospitality, promise, or other form, or gifts              
     from the same person worth less than $250 [$100] that in a                
     calendar year aggregate to $250 [$100] or more in value.                  
     Except for food or beverage for immediate consumption, a                  
     legislator or legislative employee [, AND] may not solicit,               
     accept, or receive during a legislative session a gift with               
     any monetary value from a lobbyist or a person acting on                  
     behalf of a lobbyist.                                                     
                                                                               
Number 0031                                                                    
                                                                               
REPRESENTATIVE KIM ELTON mentioned he is scheduled to solicit on               
behalf of KT00 radio for their fund-raising drive tomorrow morning.            
He asked Ms. Barnett what happens if a lobbyist calls in and                   
donates to KTOO.                                                               
                                                                               
Number 0036                                                                    
                                                                               
SUZIE BARNETT, Professional Assistant, Legislative Ethics                      
Committee, testified via teleconference.  She replied there's an               
advisory opinion that came out before you began serving on the                 
ethics committee that allows for solicitation for charitable                   
organizations so long as they meet certain conditions, including               
"501 c" status, or recognized as local and ongoing charitable                  
organization.  She concluded that she will provide that information            
to him and reiterated that it is fine for him to do that, but he               
personally could not accept a gift.                                            
                                                                               
Number 0044                                                                    
                                                                               
MR. BROWN said Section 29 are some exemptions to the ban on                    
receiving gifts, notwithstanding (a) of this section, it's not a               
violation of this section for a legislator or legislative employee             
to accept - this allows you to stay at someone's house and have                
that be hospitality.  He said the bill would put in a restriction              
on the exemption that a vacation home outside the state is not                 
considered a residence, so you can't go to someone's condo in                  
Hawaii and say, "Oh, I was just staying overnight at their house."             
That's a gift of value under the code if it's outside the state.               
                                                                               
     (A) with incidental transportation at the residence of a                  
     person; however, a vacation home located outside the state is             
     not considered a residence for the purposes of this                       
     subparagraph; or                                                          
                                                                               
MR. BROWN stated Section 29 will also permit the receipt of                    
discounts, if you were traveling, you could save the state money,              
but not be perceived for being unethically given a gift.                       
                                                                               
     (B) when on official state business, but only if receipt of               
     the discount benefits the state;                                          
                                                                               
Number 0052                                                                    
                                                                               
MR. BROWN referred to page 20, lines 17 through 26 of Section 29.              
He said this allows legislative session discounts on behalf of the             
capital city.                                                                  
                                                                               
     (7) a discount for all or part of a legislative session,                  
     including time immediately preceding or following the session,            
     or other gift to welcome a legislator or legislative employee             
     who is employed on the personal staff of a legislator or by a             
     standing or special committee to the capital city or in                   
     recognition of the beginning of a legislative session if the              
     gift or discount is available generally to all legislators and            
     the personal staff of legislators and staff of standing and               
     special committees; this paragraph does not apply to                      
     legislative employees who are employed by the Legislative                 
     Affairs Agency, the office of the chief clerk, the office of              
     the senate secretary, the legislative budget and audit                    
     committee, or the office of the ombudsman.                                
                                                                               
Number 0060                                                                    
                                                                               
MR. BROWN stated Section 30 deals with disclosure of the value of              
gifts.  The dollar amount has been raised from $100 to $250 for                
conforming purposes and the deadline has been brought forward two              
months.  The idea there being that the earlier the public knows                
about the receipt of these gifts, the higher the public policy is              
served.                                                                        
                                                                               
     (d) A legislator or legislative employee who accepts a gift               
     under (c)(4) [OR (6)] of this section shall disclose the gift             
     if it has a value of $250 [$100] or more; the [. THE]                     
     disclosure must include the name and occupation of the person             
     making the gift, [AND] the approximate value of the gift, and             
     [. A GIFT UNDER (c)(4) OF THIS SECTION REQUIRED TO BE                     
     DISCLOSED UNDER THIS SECTION] shall be disclosed to the                   
     committee within 30 days after [OF] the receipt of the gift.              
     Except as provided in (i) of this section, a gift [TO THE                 
     COMMITTEE.  GIFTS] under (c)(6) of this section that has a                
     value of $250 or more shall be disclosed to the committee                 
     annually on or before February 15 [APRIL 15] of the following             
     calendar year; the [AND THE] disclosure needs to include only             
     a description of the gift and the identity of the donor [THE              
     VALUE ONLY IF THE VALUE OF THE GIFT EXCEEDS $250].                        
                                                                               
MR. BROWN said originally these disclosures were made to Alaska                
Public Offices Commission (APOC) in addition to the ethics                     
committee and in order to reduce paperwork and unnecessary red                 
tape, the committee is going to be the recipient of the reports and            
in turn will forward them to APOC so that they are available to the            
public.                                                                        
                                                                               
     The committee shall forward to the Alaska Public Offices                  
     Commission copies of the disclosure concerning gifts under                
     (c)(4) of this section that it receives from legislative                  
     employees who are required to file financial disclosure                   
     statements under AS 24.60.200 and from legislators.                       
                                                                               
MR. BROWN asked Ms. Barnett if she had a "web page" for publishing             
disclosures other than the Journal.                                            
                                                                               
MS. BARNETT replied no, but they do keep a list available and when             
people ask they provide it.                                                    
                                                                               
MR. BROWN reported APOC on the other hand, has a user friendly                 
format where most everything filed with the commission is available            
on the web.                                                                    
                                                                               
Number 0072                                                                    
                                                                               
REPRESENTATIVE JOE RYAN asked about the fiscal note.                           
                                                                               
MR. BROWN reported the fiscal notes have not been revised since                
many of the changes were made.  He said, "The most expensive part              
of the bill was the ramping up of the Executive Branch Ethics Act              
and transference of a lot of the duties from the Department of Law             
to the Personnel Board.  Now that the proposal that we're looking              
at, is not going to transfer anywhere near as much of that                     
responsibility, or work, I think the fiscal note will shrink                   
precipitously.  The same thing for the APOC fiscal note, now that              
we've reduced a number of people in the executive branch who are               
going to be filing public official disclosure forms, I'm hoping to             
see that fiscal note shrink. ... To really answer your question,               
they were quite large.  The fiscal note, since this bill passed the            
Senate and came over, it was in the order of a quarter million                 
dollars a year from the Personnel Board, seventy thousand dollars              
a year from APOC, zeros from Law, LAA [Legislative Affairs Agency]             
and from..."                                                                   
                                                                               
UNIDENTIFIED SPEAKER interjected, "Let's let Law handle it all                 
then."                                                                         
                                                                               
Number 0086                                                                    
                                                                               
MR. BROWN moved onto Section 31.  He indicated this is what Ms.                
Barnett calls the "low-budget campaign" section of the bill.  It               
specifies that a small amount of a contribution that has to be                 
reported under the Campaign Finance Act doesn't have to be                     
considered a gift under this section.                                          
                                                                               
     (e) A political contribution [THAT IS REPORTED UNDER AS                   
     15.13.040] is not a gift under this section if it is reported             
     under AS 15.13.040 or is exempt from the reporting requirement            
     under AS 15.13.040(g).                                                    
                                                                               
MR. BROWN asked Ms. Barnett to speak on this issue.                            
                                                                               
MS. BARNETT said if Brook Miles is there, she can speak to this                
better because these low budget campaigns were created in campaign             
finance reform.  She explained, "What this change is, is saying                
that, you know we've always said - and the law is clear in stating             
that contributions to campaigns are not gifts.  And this further               
clarifies that, given that change in campaign finance reform and               
the creation of these little low-budget campaigns, still                       
contributions to those are still not gifts."                                   
                                                                               
Number 0096                                                                    
                                                                               
CHAIR JAMES asked what is the limit on the new change.                         
                                                                               
UNIDENTIFIED SPEAKER replied $2,500.                                           
                                                                               
CHAIR JAMES said the limit used to be $1,000.  If you have a                   
campaign that is less than $2,500, you don't have to consider those            
as gifts.                                                                      
                                                                               
MR. BROWN replied in the affirmative.  And they're also exempt from            
the standard reporting under the Campaign Finance Act.                         
                                                                               
UNIDENTIFIED SPEAKER asked if that includes municipal campaigns.               
                                                                               
MR. BROWN replied yes it does.                                                 
                                                                               
Number 0101                                                                    
                                                                               
MR. BROWN said Section 32 is an exemption of the gift restrictions             
that deal with the receipt of gifts from foreign governments or                
other governmental entities.  This has been defined to include                 
other states, local governments and foreign governments.  He                   
mentioned, "This is to allow the receipt of gifts for protocol                 
purposes by legislators. ... Even if somebody from the City of                 
Kenai comes and wants to give you something, as long as you receive            
it in a public spirited context on the behalf of the legislature,              
this exempts your receipt of it."                                              
                                                                               
Number 0109                                                                    
                                                                               
MR. BROWN said Section 33 redefines what we call family members for            
the purposes of the Legislative Ethics Code.                                   
                                                                               
     (g) In this section, "immediate family" or "family member"                
     means                                                                     
     (1) the spouse of the person;                                             
     (2) the person's spousal equivalent;                                      
     (3) a child, including a stepchild and an adoptive child, of              
     the person or of the person's spousal equivalent;                         
     (4) a parent, sibling, grandparent, aunt, or uncle of the                 
     person; and                                                               
     (5) a parent, sibling, grandparent, aunt, or uncle of the                 
     person's spouse or the person's spousal equivalent                        
                                                                               
Number 0116                                                                    
                                                                               
REPRESENTATIVE MARK HODGINS asked when can they start making                   
amendments to delete some of this stuff.                                       
                                                                               
CHAIR JAMES replied when they've completed going through the bill.             
                                                                               
CHAIR JAMES noted Representative Berkowitz arrived.                            
                                                                               
UNIDENTIFIED SPEAKER jokingly said, "Delete all of the above."                 
                                                                               
Number 0124                                                                    
                                                                               
MR. BROWN explained Section 34, page 22, adds five new subsections             
to the gift portion of the statute.  He informed Representative                
Elton that this is where we get to the question you asked earlier.             
                                                                               
     (h) Notwithstanding (a) of this section, a legislator or                  
     legislative employee may solicit, accept, or receive a gift on            
     behalf of a recognized, nonpolitical charitable organization.             
                                                                               
     (i) A legislator or legislative employee who receives an                  
     inheritance worth $250 or more from a person other than a                 
     family member shall disclose the fact of the receipt of an                
     inheritance and the identity of the decedent to the committee             
     by the deadline set out in AS 24.60.105.  The committee shall             
     treat the disclosure as a disclosure relating to a gift not               
     connected to the recipient's legislative status under (c)(6)              
     of this section.  This subsection does not require disclosure             
     of the value of the inheritance.                                          
                                                                               
MR. BROWN explained it deals with the receipt of the inheritances              
and makes the disclosures subject to a different standard of                   
confidentiality, upon receipt by the committee.                                
                                                                               
Number 0131                                                                    
                                                                               
REPRESENTATIVE ETHAN BERKOWITZ asked why is this in here.                      
                                                                               
MS. BARNETT replied Senator Pearce felt that there was no way to               
deal with inheritance at the moment under the Ethics Code and that             
there should be a way to disclose it confidentially and handle it.             
                                                                               
REPRESENTATIVE BERKOWITZ said it seems to him that if he inherited             
something - and he gets property out of it, it goes on his                     
financial disclosure forms.                                                    
                                                                               
MS. BARNETT replied she doesn't think that the committee itself is             
wedded to this particular section.  It was just a proposal on the              
senator's part as way to deal with an inheritance.                             
                                                                               
Number 0142                                                                    
                                                                               
MR. BROWN said (j) deals with the gift of volunteer services to a              
legislator.  It specifically allows university interns and the Job             
Training Partnership Act, gifts of volunteer services.  It would               
not permit BP [British Petroleum] to pay for an extra staffer in               
your office - and that's the idea.                                             
                                                                               
REPRESENTATIVE HODGINS asked if that would include the University              
of Alaska.                                                                     
                                                                               
MR. BROWN replied no.  This specifically allows internships from               
the University of Alaska and the Job Training Partnership Act.                 
                                                                               
Number 0149                                                                    
                                                                               
REPRESENTATIVE RYAN referred to line 7, "This section does not                 
permit a legislator or legislative employee to accept a gift of                
services for nonlegislative purposes."  He said there goes your                
campaign help out the window.                                                  
                                                                               
MR. BROWN stated he doesn't think it has that far reaching effect.             
                                                                               
CHAIR JAMES implied it is an outright statement.                               
                                                                               
REPRESENTATIVE BERKOWITZ said, "If we're running a business and                
someone wants to come to a (indisc. - talking) in the business,                
that's a gift of services, not just for the campaign."                         
                                                                               
CHAIR JAMES agrees with him.  She said, "I was thinking that a gift            
of services for nonlegislative purposes - and I'm thinking about               
all of us who are in business while we're working as a legislator              
and particularly when we're in the interim, even more so. ... Quite            
frankly, I have a lot of problem with that when it's for                       
nonlegislative purposes because I thought that we had - a little               
back further here, that says we can accept gifts for nonlegislative            
purposes - we just went by that one."                                          
                                                                               
Number 0164                                                                    
                                                                               
MR. BROWN replied this question has been raised several times.                 
"Because the reference in that sentence that we're questioning here            
refers to the subsection, I don't think it in any possible way                 
undoes your right to accept gifts under any other part of the                  
statute.  It's merely an attempt to prevent the language here from             
enabling you to have BP pay for a maid to come clean your house and            
use subsection (j) as a defense of that arrangement as according to            
the drafter."                                                                  
                                                                               
REPRESENTATIVE RYAN pointed out nobody anticipated that putting a              
sign up would be a political contribution.  Nobody anticipated that            
women coming to a political luncheon would count as part of the                
total amount of money that a party could raise.  He indicated some             
organizations don't show common sense.  He concluded, "I'll be                 
darned if I want to give them another reason to make a stupid                  
interpretation of the law.  So I think I'm going to move, when the             
time comes to solve this problem early on, we'll just delete this              
baloney and go on."                                                            
                                                                               
MR. BROWN asked Ms. Barnett if deleting that last sentence of                  
subsection (j) would damage the new statute.                                   
                                                                               
Number 0176                                                                    
                                                                               
MS. BARNETT clarified that gifts are gifts and you just have to                
figure out how they apply.  She said she believes Representative               
James and Berkowitz have a legitimate question.  Ms. Barnett said,             
"If you are receiving a gift - regardless in which capacity or part            
of your life - with a value in this bill of over $250, then you                
need to figure out how it fits into the gift code.  In this                    
section, I believe that you don't need to worry about this last                
line because it - to me it clearly says - it refers to this                    
subsection and it's saying to you that it's only talking about                 
volunteer services and trainee services."                                      
                                                                               
MS. BARNETT noted, "In a larger capacity, and the question about               
campaigns that Representative Ryan asked, I believe that Brook                 
Miles could speak to because there are definitions of that in our              
Ethics Code - exempts those.  You don't have to worry about                    
volunteer time in your campaigns.  A volunteer to your business, an            
intern to your business - I've never addressed that question                   
before.  But I honestly don't feel the code applies to it."  She               
indicated she can work on that question and get back to the                    
committee.                                                                     
                                                                               
REPRESENTATIVE HODGINS said he believes it does speak to that.  He             
indicated he would be in violation if a relative came into his post            
office and volunteered an hour or two, he would be in violation of             
that with this subsection.                                                     
                                                                               
CHAIR JAMES stated family doesn't count, but she believes if it was            
his neighbor or a good friend then it would be a violation so she              
has a real problem with that.  She asked, is it that you cannot                
take a gift over $250, if you do you have to disclose it.                      
                                                                               
Number 0200                                                                    
                                                                               
MS. BARNETT replied generally that's the line, (if the bill passes)            
anything below that ($250) is an acceptable gift regardless of whom            
it's from.  There's not a reporting requirement.  At the point at              
which you hit the $250 mark, or today at the point at which you hit            
the $100 mark - then you have to start asking yourself questions,              
"Does this gift fit into any of the exceptions."  Ms. Barnett                  
concluded you'll have to disclose if it fits into any of the                   
exceptions.  If it doesn't fit into any of the exceptions, then you            
have to return the gift.                                                       
                                                                               
REPRESENTATIVE HODGINS said, "I'm the contractor for the Nikiski               
Post Office, and I have an agreement with the school, not the                  
University of Alaska, to allow kids to come in under their                     
Vocational Education Program - and they work for less dollars than             
the normal employee - the rates that they work for, that's less                
than the normal employee, is that a gift."                                     
                                                                               
MS. BARNETT indicated she doesn't like to give quick answers -                 
because with their informal advice she usually tries to take a                 
minute to look through the law.  She said, "I would say that that's            
not a gift, you are having an exchange of value - you're paying for            
their services, it may be at a discounted rate, but that is a                  
business - a contractual agreement between you and your business               
and does not fall within the gift section here.  That would be my              
informal advice, it's not binding on the committee."                           
                                                                               
Number 0221                                                                    
                                                                               
REPRESENTATIVE HODGINS said, for example if BP has a cleaning                  
person come in and you pay them a buck.                                        
                                                                               
MS. BARNETT replied she's quite sure, at that point, that he would             
declare that to be a gift.                                                     
                                                                               
REPRESENTATIVE HODGINS asked what's the difference, an employee is             
an employee.                                                                   
                                                                               
MR. BROWN asked who's paying them, BP or you.                                  
                                                                               
MS. BARNETT remarked right.                                                    
                                                                               
REPRESENTATIVE HODGINS replied the school pays the employee - the              
student.                                                                       
                                                                               
MS. BARNETT said but you're providing a vocational educational                 
experience.  The committee, in cases like this has had this                    
question posed to them and the committee's able to say yes.  She               
stated, "In fact the JTPA [Job Training Partnership Act] trainees -            
someone came and said, 'Look, JTPA pays for a trainee, may we                  
accept it,' and the committee looked at the situation and said                 
yeah."                                                                         
                                                                               
CHAIR JAMES mentioned she has a big problem with this, but they'll             
think about it and address it later.                                           
                                                                               
Number 0234                                                                    
                                                                               
MR. BROWN explained subsection (k) (page 23, line 9).  He said this            
places a requirement on legislators and legislative employees -                
that in receipt of a gift by a family member that is based upon                
that family member's connection to you as a legislator or                      
legislative employee - requires disclosure under the code as if you            
had received the gift.  That's merely to prevent the spouses of                
legislators from being bought lavish gifts as a means of going                 
through a loophole in the code.                                                
                                                                               
CHAIR JAMES read the following:                                                
                                                                               
     (k) A legislator or legislative employee who knows or                     
     reasonably should know that a family member has received a                
     gift because of the family member's connection with the                   
     legislator or legislative employee shall report the receipt of            
     the gift by the family member to the committee                            
                                                                               
CHAIR JAMES asked for an example.                                              
                                                                               
MS. BARNETT replied gifts of travel, for matters of legislative                
concern, given to allow your spouse to travel with the legislator              
would have to be reported.  The same would hold true for gifts that            
legislators or legislative employees would be prohibited from                  
accepting that are received by family members.  So, a gift of over             
$250 given to the spouse of a legislator, primarily because of the             
connection to the legislator, would have to be reported.                       
                                                                               
CHAIR JAMES said she understood and asked to move on.                          
                                                                               
CHAIR JAMES announced Representative Ivan is present.                          
                                                                               
Number 0249                                                                    
                                                                               
REPRESENTATIVE RYAN asked who makes the determination that the gift            
is given because of the persons relationship with the legislator or            
legislative employee.                                                          
                                                                               
CHAIR JAMES replied it's a perception.                                         
                                                                               
MR. BROWN explained subsection (l).  He said, "This merely empowers            
the committee to - and mandates that the committee use fair market             
value as a standard.  So, again trying to prevent the loophole                 
saying, 'I thought the crystal vase was worth $12.50' - that's not             
something that the committee wants people to feel like they have               
leeway to do so - the committee's going to go ahead and you have               
the fair market value standard (indisc.) means as ascertaining the             
value of gifts covered by the code."                                           
                                                                               
     (l) In this section, the value of a gift shall be determined              
     by the fair market value of the gift to the extent that the               
     fair market value can be determined.                                      
                                                                               
CHAIR JAMES expressed concern.                                                 
                                                                               
MR. BROWN remarked that's a questionable standard because there's              
replacement costs and we discussed this in subcommittee a little.              
                                                                               
CHAIR JAMES said she understands that they had talked about this               
before, and it also depends on where the gift came and how much                
they paid for it.  The problem with fair market value is how much              
is anybody willing to pay.  For example, someone got a good deal               
and bought you a simple little gift and didn't pay very much for               
it, but the gift was very valuable, then you may not be able to                
accept it.  She stressed that doesn't seem reasonable to her.  In              
common law, the intent drives the system - in this case, perception            
drives the system.                                                             
                                                                               
Number 0271                                                                    
                                                                               
CHAIR JAMES said she believes that unless there is a complaint that            
the value that ascertained on the report from the legislature that             
she doesn't believe that the ethics committee, on their own, should            
not accept the value that's placed on it by the legislator or the              
person who's reporting.  If the complaint is they have this very               
valuable thing, then they might have to respond to the complaint.              
But it seems to her that the best thing for legislators to do is,              
in their own record, determine where they got the value.                       
                                                                               
MS. BARNETT stated you have explained exactly the way life works               
with the committee.                                                            
                                                                               
CHAIR JAMES asked why do we have to put it in here.                            
                                                                               
MS. BARNETT replied it was added as a guidance for people so that              
they don't have to call the office as often and say, "What should              
we do," and our logical response is, "Go for fair market value."               
                                                                               
CHAIR JAMES gave her trip to China as an example for fair market               
value.  It's eight to one in American money.  If she were to use               
Chinese money as opposed to American money, it would have made a               
big difference and, or what she could have purchased in this                   
country.  Chair James concluded, "That's not necessarily the fair              
market value here, it's what could I buy it for in American money              
there.  Someone could say, 'Well, that was a lot more valuable                 
here,' and maybe it was.  ... Fair market value is a fine way to do            
it, but it seems to me like cost is better."                                   
                                                                               
Number 0289                                                                    
                                                                               
REPRESENTATIVE HODGINS asked who came up with the CS.                          
                                                                               
CHAIR JAMES replied it's the result of the subcommittee.                       
                                                                               
REPRESENTATIVE BERKOWITZ stated they reviewed it.                              
                                                                               
CHAIR JAMES further explained that the subcommittee went through               
the amendments (that was brought from Senator Kelly's office), they            
went through the 30 pages of suggested changes and agreed that some            
of them should be put in the CS, and some should not because they              
were too controversial.  She indicated after the committee has gone            
through version L, they will next go through the suggested                     
amendments, and any other amendments that this committee wants to              
address.                                                                       
                                                                               
REPRESENTATIVE RYAN suggested SB 105 be allowed to die in the House            
State Affairs Standing Committee.                                              
                                                                               
CHAIR JAMES didn't agree with him.                                             
                                                                               
REPRESENTATIVE ELTON said he thinks we're mixing up where the real             
problem may be.  He believes some people have a philosophical                  
problem with the ethics committee and the statutes that govern it.             
He indicated he views this piece of legislation as an opportunity              
to make it better.  If SB 105 doesn't pass, it will contribute to              
a continuing grayness that the ethics committee has to deal with               
all the time.  So, to the extent that we look at this bill, as a               
way to improve it, and to the extent that we revise this bill so               
that were comfortable with the improvements, that's a good                     
committee function.  If we do nothing, some of those areas of                  
grayness will remain out there.                                                
                                                                               
Number 0316                                                                    
                                                                               
MR. BROWN referred to Section 35 which prohibits acceptance of                 
compensation for personal services.  That's meant to prevent a                 
professional for instance from receiving a $50,000 contract for not            
doing any work for a company that has an interest in legislative               
business.  The problem with "not commensurate with," is it                     
prohibits pro bono work, that means you can't do a job and get a               
lot less than the market value for it.                                         
                                                                               
     (a) A legislator or legislative employee may not                          
                                                                               
     (1) seek or accept compensation for personal services that is             
     significantly greater than the value of [INVOLVES PAYMENTS                
     THAT ARE NOT COMMENSURATE WITH] the services rendered taking              
     into account the higher rates generally charged by specialists            
     in a profession; or                                                       
                                                                               
     (2) accept a payment of anything of value, except for actual              
     and necessarily incurred travel expenses, for an appearance or            
     speech by the legislator or legislative employee; this                    
     paragraph does not apply to the salary paid to a legislator or            
     legislative employee for making an appearance or speech as                
     part of the legislator's or legislative employee's normal                 
     course of employment.                                                     
                                                                               
REPRESENTATIVE BERKOWITZ asked if value in this context is fair                
market value.                                                                  
                                                                               
MR. BROWN said he didn't think there is a standard here because                
this deals with "giving" the services not "receiving" them.  He                
asked for Ms. Barnett opinion.                                                 
                                                                               
MS. BARNETT replied, "So, if you were an attorney who charged $200             
an hour, and you said you would do it for $1 an hour.  It's that               
difference.  It's what we're talking about."                                   
                                                                               
Number 0324                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ stated, "I was thinking more of the case              
where you have a nonrefundable payment to an attorney, say $2,500              
to do a DWI [driving while intoxicated]. ... You know what you're              
doing, and if the cards break right you can get those cases done in            
a couple hours.  If they don't break right, you wind up working for            
significantly less than an hourly.  This will enable you to do                 
that, basically."  He concluded that it's a question of whether he             
needs to return some of the money, but he would be precluded by                
this ethics Act from taking that $2,500.                                       
                                                                               
MS. BARNETT indicated she reads that differently.  She pointed out             
there are perhaps ten other attorneys who are as capable of doing              
that exact scenario, and therefore in your profession you are                  
commensurate.                                                                  
                                                                               
Number 0334                                                                    
                                                                               
CHAIR JAMES said for example, "In my profession [Certified Public              
Accountant, CPA], I give people monthly rates all the time, and                
that's unusual in my business.  Most of the people in my business              
do everything by the hour, and so sometimes I spend a lot of time              
on something and I don't get as much as I should, but many times I             
make more than I would if I charged by the hour."                              
                                                                               
MS. BARNETT noted that she thinks on common sense, logical basis,              
there would be no question.  Unless you are out of the normal                  
range, no one, including the ethics committee is going to question             
it.  They haven't so far.  She explained this change basically                 
allows you to charge less.  It's all whether you're in the range of            
your profession.                                                               
                                                                               
REPRESENTATIVE RYAN said he didn't mind anyone else setting the                
price or the value of what they think their services are worth, but            
he objects vehemently to some people, that he doesn't know, tell               
him what they think his expertise as an expert witness is worth,               
what a fair market value is, or what someone else got paid.                    
                                                                               
Number 0350                                                                    
                                                                               
MR. BROWN moved onto Section 36, beginning on page 23 of Amendment             
L.  He said this deals with representation by legislators and the              
unlikely eventuality of legislative employees who, in the course of            
employment, represent someone else for compensation before a state             
agency or board.  This requires disclosure of that representation.             
                                                                               
REPRESENTATIVE BERKOWITZ stressed, "It is very difficult as an                 
attorney, or as a doctor, or as a CPA, when you have clients and               
you have to disclose the names of those clients simply because --              
I personally chose to get involved in the public eye.  Now the                 
parts of my life that are in the public eye should be and are                  
subject to public scrutiny.  But when people hire my services in               
the private context, they're entitled to some privacy protection.              
And if they're not, then my business as a citizen legislator                   
(indisc. - noise).  So, I don't like having to disclose names of my            
clients."                                                                      
                                                                               
MR. BROWN said he would be happy to work on that language so that              
clients' names aren't being disclosed unnecessarily.                           
                                                                               
Number 0367                                                                    
                                                                               
MS. BARNETT informed the committee Alaska is one of the few states             
that allow their legislators to represent clients in front of state            
agencies.  One of the ways to deal with it could be to eliminate               
that possibility all together, then there would be no disclosure               
requirement.                                                                   
                                                                               
REPRESENTATIVE RYAN suggested repealing the disclosure requirement.            
                                                                               
Number 0371                                                                    
                                                                               
MR. BROWN moved onto Section 37 of the bill.  He explained this                
deals with a new deadline of 15 February for disclosure of                     
information.  Most disclosures are currently being made, this is               
meant to neatly gather in one section of the ethics code - the                 
timing and subject matter of all the disclosures that are required.            
                                                                               
MR. BROWN said Section 38 specifies public members of the ethics               
committee don't get compensated but do get per diem and travel.                
                                                                               
REPRESENTATIVE RYAN asked where's the fiscal note.                             
                                                                               
CHAIR JAMES explained that's already in existing law, it's part of             
the budget.  She then read:                                                    
                                                                               
     Public members of the committee serve without compensation for            
     their services, but are entitled to per diem and travel                   
     expenses authorized for boards and commissions                            
                                                                               
Number 0397                                                                    
                                                                               
MR. BROWN explained Section 39 deals with alternates on the ethics             
committee.  If a member of the committee (indisc.) complaint, or a             
staff person to a member of the committee, the presiding officer               
would have to appoint an alternate and it would be quite obvious at            
that point in the confidentiality of the process would have been               
breached effectively.  The approach would have the president and               
speaker appoint alternates for each regular member...                          
                                                                               
TAPE 98-49, SIDE B                                                             
Number 0001                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ said, "As I understand it, the Speaker of             
the House or the President [of the Senate] shall appoint.  It                  
doesn't say the speaker or the minority leader - it just says, this            
is just one person, one party, and I come from a background that               
worries about the appearance of an impropriety."                               
                                                                               
CHAIR JAMES stated if you're going to have an alternate, you have              
to have two in the House and two in the Senate, because you have to            
have an alternate for the one they're replacing.  She indicated                
alternates would include one majority member and one a minority                
member - they are standing alternates.                                         
                                                                               
MR. BROWN read Section 40, line 6, page 26:                                    
                                                                               
     An alternate must have the same qualifications as the regular             
     member for whom the alternate stands as alternate and is                  
     subject to confirmation as required for the regular member.               
                                                                               
Number 0014                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ said there should be (indisc.) equality to            
which of the alternates gets selected.  He doesn't believe the                 
speaker or the president needs to be involved.  He suggested                   
numbering the alternates 1, 2, 3, 4, and just rotated through them,            
that way it's random.                                                          
                                                                               
CHAIR JAMES remarked it's hard to find somebody willing to do this,            
it's not a coveted position.                                                   
                                                                               
MR. BROWN explained minority organizational caucus is defined, it's            
very specific about the partisan representation.                               
                                                                               
REPRESENTATIVE BERKOWITZ stated he is not worried about the                    
composition of the committee as a whole.  He said, "I'm worried                
about - initially, and that concern was alleviated -- with this                
alternate, I thought maybe the speaker would just reach out in the             
public and grab somebody, but that's (indisc.)..."                             
                                                                               
CHAIR JAMES remarked no, it's in the legislature.                              
                                                                               
REPRESENTATIVE BERKOWITZ continued, "But the speaker does have a               
pool of alternates to draw on."                                                
                                                                               
MR. BROWN replied only at the beginning of session when appointing             
other members though.                                                          
                                                                               
REPRESENTATIVE BERKOWITZ said for example, one of the members of               
the committee is precluded from serving, then the speaker looks at             
the pool of alternates and says, "you will be the one who's                    
(indisc. - interrupted)."                                                      
                                                                               
MR. BROWN replied, "No, no, you're appointed (indisc.), she's                  
appointed as your alternate.  You can't serve.  She automatically              
serves at no discretion - she is an alternate to your seat."                   
                                                                               
Number 0030                                                                    
                                                                               
CHAIR JAMES further explained the way it's currently set up.  She              
pointed out we have two minorities - one from the House and Senate,            
two majorities - one from the House and Senate.  If one of those               
people, either the minority or the majority from the House or                  
Senate happens to be directly involved with a complaint, if the                
complaint is against them or their staff, someone will take their              
place he should have the same qualifications as they.                          
                                                                               
REPRESENTATIVE BERKOWITZ stated he understands that, it makes                  
perfect sense to him.  But he doesn't understand why the speaker or            
the president is involved in this process.                                     
                                                                               
CHAIR JAMES stated it's in the original.  They get appointed by the            
speaker [or president] after it's been run by the caucus.  She                 
concluded that it goes through the minority leader [or majority                
leader] in all cases.                                                          
                                                                               
MR. BROWN noted there is a two-thirds concurrence to confirm the               
membership.                                                                    
                                                                               
Number 0055                                                                    
                                                                               
MR. BROWN said Section 41 deals with participation in the political            
process by the ethics committee members, staff, and probably more              
significantly contractors to the committee.  Much like the                     
standards that apply to the members of the Public Offices                      
Commission, they can't be out there raising money, having or                   
attending fund-raisers to the extent that we can limit their                   
behavior.                                                                      
                                                                               
CHAIR JAMES asked do they also have to report to the ethics                    
committee.                                                                     
                                                                               
MR. BROWN replied we require a certain amount of disclosure by the             
public members.  He asked Ms. Barnett what's the disclosure                    
requirement for contractors.                                                   
                                                                               
MS. BARNETT replied, "For example, if we hire a firm to do an                  
investigation and three of them are involved in the investigation,             
not all 20 employees -- the other 17 never touch anything then no,             
those employees of the contracting firm are not involved.  But                 
those three yes, are required to act as employees and disclosure               
requirements during their term of actual employment.  This section             
really is you're focused on the ethics committee members and yes               
they are required to disclose matters and you've seen disclosures              
from them in the past.  When Joe Donahue's wife Helen used to work             
for the legislature they both would disclose that economic                     
association."                                                                  
                                                                               
Number 0073                                                                    
                                                                               
MR. BROWN explained Section 42 deals with contracting with firms.              
It enables the firm, with whom the committee's contracted, to                  
request that some of its employees be exempted from compliance -               
we're not attempting to loop in everyone who works in that firm.               
He said the corporation or partnership has to request from the                 
committee that a certain number of its employees be exempted.  He              
said, "It gives the committee the ability to exempt them, which it             
doesn't technically have right now."                                           
                                                                               
Number 0082                                                                    
                                                                               
MR. BROWN said "Section 43, advisory opinions, this expands the                
time frame in which the ethics committee can - and also the pool of            
persons to whom it can respond - requesting advisory opinions.                 
This enables them to answer questions for newly-elected legislators            
or persons who are going to be coming on board as legislative                  
staff, further out before the actual period of services of a                   
legislature or work as a legislative employee begins."                         
                                                                               
MR. BROWN referred to the top of page 28.  Just because you asked              
for an advisory opinion you don't have the right to go into an                 
executive session when they're deliberating about it.                          
                                                                               
REPRESENTATIVE BERKOWITZ asked does this authorize the person                  
requesting an advisory opinion to instruct the committee to go                 
beyond 60 days.  For example, he can ask for an opinion and say,               
"But I don't want it for another three months."                                
                                                                               
MR. BROWN replied it reads "the committee shall issue an advisory              
opinion within 60 days."                                                       
                                                                               
Number 0098                                                                    
                                                                               
MS. BARNETT said we've asked about this and the law doesn't seem to            
preclude it that if we write a letter back to the requester saying,            
"We will not be able to hold a meeting for 65 days, would you waive            
that 60-day requirement."  And if the requester says yes, then the             
committee is empowered to do that because it's the requester who               
needs the information and who perhaps needs it on a shorter time               
line.                                                                          
                                                                               
     If it finds that it is advisable to do so, the committee may              
     issue an opinion under this section on the request of a person            
     who reasonably expects to become subject to this chapter                  
     within the next 45 days.  The 60-day [30-DAY] period for                  
     issuing an opinion may be extended by the committee if the                
     person requesting the opinion consents.                                   
                                                                               
CHAIR JAMES asked what if they say no.                                         
                                                                               
MS. BARNETT replied then we would have to hold a teleconference and            
get on it.                                                                     
                                                                               
Number 0107                                                                    
                                                                               
MR. BROWN explained Section 44, page 28, deals with the issue of               
complaints that are not resolved but go away due to the resignation            
or termination of someone's public service or employment.  He said             
that created a loophole - it would be possible to quit your job and            
come back, and the committee's jurisdiction over you would have                
expired with your employment.  This deals with a situation of a                
legislator who was subject of an ethics complaint - coming back as             
working as a staffer - which we've had in the past few years.  In              
that case the person had not complied with the provisions of an                
(indisc.) complaint against him by the committee.  But there's                 
nothing the committee could do.                                                
                                                                               
REPRESENTATIVE BERKOWITZ stated a legislator, subject of an                    
investigation, could resign and then be exempted, and then run                 
again.                                                                         
                                                                               
MR. BROWN replied the committee would be able within five years                
[statute of limitations] to bring the charges back up as soon as               
that person was again covered by the code.                                     
                                                                               
CHAIR JAMES asked what if they leave the legislature and go to work            
for the administration.                                                        
                                                                               
MR. BROWN replied we don't have cross referencing between executive            
branch ethics and legislative ethics.                                          
                                                                               
CHAIR JAMES suggested both directions - "If there's someone that               
has an unresolved ethics problem in the administration, leaving and            
coming to work for the legislature or vice versa."  She asked Mr.              
Brown to think about that.                                                     
                                                                               
Number 0133                                                                    
                                                                               
MR. BROWN explained Section 45 deals with the procedures for                   
complaints.  Currently there is a very loose standard to which                 
complainants are held when they make their allegations.  This                  
formalizes the process a little bit more so complainants know that             
they have to state that they have reason to believe that the                   
violation occurred and they have to put the facts that they believe            
that in there.                                                                 
                                                                               
     (b) A complaint may be initiated by any person.  The complaint            
     must be in writing and signed under oath by the person making             
     the complaint and must contain a statement that the                       
     complainant has reason to believe that a violation of this                
     chapter has occurred and describe any facts known to the                  
     complainant to support that belief.                                       
                                                                               
MR. BROWN noted the committee will warn the complainant they may be            
required to come forward and speak to the complaint they're making.            
                                                                               
     Upon receiving a complaint, the committee shall advise the                
     complainant that the committee or the subject of the complaint            
     may ask the complainant to testify at any stage of the                    
     proceeding as to the complainant's belief that the subject of             
     the complaint has violated this chapter.                                  
                                                                               
REPRESENTATIVE RYAN said he is going to make an amendment to this              
particular chapter that substantially says, "If you bring forth the            
complaint and it can't be substantiated, you're subject to civil               
penalties. ... You can make all the potshots you want, but if you              
can't substantiate them, you're going to pay."                                 
                                                                               
Number 0148                                                                    
                                                                               
MR. BROWN mentioned the committee is empowered to return complaints            
that are frivolous without investigating them.                                 
                                                                               
CHAIR JAMES asked Ms. Barnett what kind of measurement would you               
use to determine whether a complaint was frivolous.                            
                                                                               
MS. BARNETT reported the committee isn't empowered to do that and              
the changes in the law will help them.  They would like your                   
assistance in being allowed to return frivolous complaints and not             
have to waste time and energy on them and without having to convene            
an entire subcommittee.  She concluded that currently they aren't              
allowed to and this bill would allow them to.                                  
                                                                               
CHAIR JAMES asked does this section give you enough information to             
support your decision that it is in fact a frivolous case.                     
                                                                               
MS. BARNETT suggested she look at Section 46.                                  
                                                                               
CHAIR JAMES replied that's what she's looking at.                              
                                                                               
Number 0163                                                                    
                                                                               
MS. BARNETT said, "Yes, I guess, were you looking for specifics.               
The one I always use, if somebody writes in and says that, files a             
complaint against Representative James because they don't like the             
way Representative James drives her car, the committee still has to            
go through a procedure (to get together and look at it and say),               
'Do we have jurisdiction over this.' ... I'd be able to, or the                
staff person, at the preliminary examination level would be able to            
say, 'No this is ridiculous, bye, bye,' and not convene a meeting,             
not spend a nickel."                                                           
                                                                               
CHAIR JAMES stated she would say that example falls outside of her             
scope.  If they do file a complaint, and the story they gave was an            
ethics violation, what if they don't supply any support or proof               
that they're on target.                                                        
                                                                               
MS. BARNETT replied she believes the committee has, and always                 
should, investigate those types of allegations because the public              
has a right to those types of actions, but also investigation often            
ends up saying no, and you are then protected as a legislator.  She            
said, "And we are able to go through and say no there's no evidence            
to your allegation."                                                           
                                                                               
CHAIR JAMES asked Ms. Barnett if she understands Representative                
Ryan's concern.  If people can file a complaint, and cause stress              
for somebody, and they make a false claim that doesn't have any                
validity at all, that there should be some penalty for doing that -            
without cause.                                                                 
                                                                               
Number 0180                                                                    
                                                                               
MS. BARNETT noted they like this change that they would have to                
sign agreeing to this, but currently they can't require them to use            
the complaint form.  However, there is a law on the books                      
11.56.805, under the Criminal Code that says that they cannot                  
knowingly or intentionally initiate a false complaint.  Today you              
are still protected by that.  Anyone can tell you in this process,             
whether it's the Human Rights Commission, all these kinds of things            
where complaints are filed against another person - and on the                 
judicial side - it is difficult to prove, knowingly or                         
intentionally initiates a false complaint.  It is a standard and it            
exists.                                                                        
                                                                               
CHAIR JAMES asked, they do or do not have to use that form.                    
                                                                               
MS. BARNETT replied currently they do not have to, however, they do            
try to get people to use this form.  There's nothing in the code               
that requires them to do that.  She said, "We like them to sign                
saying, 'I acknowledge I read that.'  If they don't then, as a                 
staff person, I call them and I say -- we're not trying to tell the            
public to be afraid to file a complaint.  That's the goal, I don't             
believe, the legislature, but we do want them to be informed.  And             
so I do tell them, I reference that law when they file a complaint,            
if they haven't filed on the proper form."                                     
                                                                               
CHAIR JAMES asked could we require them to put their complaint on              
this particular form in this bill.                                             
                                                                               
Number 0193                                                                    
                                                                               
MS. BARNETT responded Section 45 requires that they sign the                   
statement.                                                                     
                                                                               
MR. BROWN added that it's not a form, but they do have to have a               
statement that the complainant has reason to believe that a                    
violation of this chapter has occurred and describe any facts known            
to the complainant to support that belief.                                     
                                                                               
MS. BARNETT explained that the form has to be notarized, the notary            
requirement is covered in another section of the bill.                         
                                                                               
CHAIR JAMES asked if they signed because they had reason to                    
believe, and made up the whole thing, then what is the recourse                
besides filing a civil suit against them for defamation of                     
character.                                                                     
                                                                               
MS. BARNETT replied that is your recourse.                                     
                                                                               
MR. BROWN added and the Title 11 reference you just gave us as                 
well.                                                                          
                                                                               
MS. BARNETT said she thinks they can include something in the bill             
that says "the form, people will sign it and it will read this."               
                                                                               
Number 0206                                                                    
                                                                               
CHAIR JAMES indicated they will work on that.  The reason she asked            
was because the State Affairs Committee just had a bill in                     
committee on the Human Rights Commission and they don't have enough            
money to research all of the cases that they have so it's taking               
them a long time to get things done.  Chair James said, "They gave             
us a percentage of 62 percent of the claims that come to them are              
unfounded.  And I certainly support - the idea is that the public              
has the right to do everything that they want, but somehow or                  
another we have to balance that with the rights of the others.  And            
I'm not sure that the 62 percent of the claims being not founded is            
reality.  And I don't know what your rate of frivolousness would               
be.  But in this case, I guess you don't have that information                 
because you haven't been able to determine if any were frivolous."             
                                                                               
REPRESENTATIVE RYAN indicated the prosecutors are plea-bargaining              
cases - murder, rape, burglary, and so forth.  He said he doesn't              
think anyone will have much luck with a prosecutor on Title 11 on              
trying to get them to do anything about a complaint.  He believes              
the committee needs to be creative in coming up with a penalty that            
will give the person who is accused as much satisfaction on being              
found innocent, as the person who accuses them on them being found             
guilty.                                                                        
                                                                               
CHAIR JAMES said it seems to her that the purpose ought to be as a             
deterrent more than it is a penalty.  If there is a fear of a                  
penalty out there, some people won't file a complaint.  She                    
indicated she would be more interested in the deterrent than she               
would be the actual penalty.                                                   
                                                                               
REPRESENTATIVE RYAN added that part of the Division of Family and              
Youth Services' (DFYS) backlog that we have, they admit that                   
approximately 50 percent of those are punitive - one parent wanting            
to get at the other files a complaint, and DFYS does nothing to                
them, they're groundless.  He indicated that's quite rampant                   
throughout the whole government.                                               
                                                                               
Number 0226                                                                    
                                                                               
MR. BROWN explained Section 46 enables the ethics committee staff              
to return complaints for being frivolous and it's not wasting the              
committee's time.                                                              
                                                                               
CHAIR JAMES mentioned that's one of the best parts of this bill.               
                                                                               
MR. BROWN stated the existing language of Section 47 deals with                
dismissal of complaints if there's not justification for their                 
consideration.  The committee would like to add:                               
                                                                               
     Committee deliberations and vote on the dismissal order and               
     decision are not open to the public or to the subject of the              
     complaint.                                                                
                                                                               
MR. BROWN said, "That's to preserve the committee's ability to have            
a candid, full and open debate about why to dismiss the complaint."            
                                                                               
REPRESENTATIVE RYAN stressed that if he is the subject of a                    
complaint, he has every right under the Alaska Constitution and                
United States Constitution to know what the disposition of that                
complaint is.                                                                  
                                                                               
MR. BROWN replied you will know what it is, but the ethics                     
committee don't want you to be there while they're voting to                   
dismiss the case.                                                              
                                                                               
Number 0244                                                                    
                                                                               
CHAIR JAMES said she understands what Representative Ryan is                   
talking about.  She explained if there is a complaint against him,             
and the committee is going into an executive session, and they're              
going to determine that they're going to dismiss the case against              
Representative Ryan, this says he can't know what happened in that             
meeting at all - he probably knows that it's going to be dismissed             
because he's going to get a comment on that.  He wants to know how             
the people voted, he wants to know who supported not dropping it               
and who supported dropping it.  And this says he doesn't have a                
right to know that, that's his concern.                                        
                                                                               
MS. BARNETT replied, "In response to Representative Ryan's                     
question, Representative James earlier made a statement that it's              
very difficult to get people to serve on the ethics committee.  I              
can tell you, if votes have to be recorded, I don't think any of               
you will ever want to serve on this committee because when you like            
your bill to get passed through somebody's committee that you have             
been recorded as voting, yes you found probable cause, that there              
was evidence of violation of the code.  I mean you're in this                  
political arena.  And the committee talked about this at great                 
lengths.  It's not the public members who we're concerned about.               
They are very bold public members and willing to put their names on            
the line.  It's to protect their representatives and senators who              
are willing to serve with them on the committee.  They felt very               
strongly that votes should not be recorded in public."                         
                                                                               
Number 0257                                                                    
                                                                               
REPRESENTATIVE JERRY SANDERS asked if there are provisions in SB
105 for an appeal if the staff determines a complaint to be                    
frivolous.                                                                     
                                                                               
MR. BROWN replied at this point he doesn't see the possibility for             
appeal in the proposed language in Section 46.  He indicated the               
one who would suffer is the complainant.                                       
                                                                               
MS. BARNETT said she believes that if someone wrote to the chair of            
the ethics committee and said, "This complaint was dismissed by a              
staff person, I object," the chair would probably immediately take             
it up, but in fact there's nothing here that either says that can              
or can't happen.                                                               
                                                                               
REPRESENTATIVE RYAN reiterated he is privy to that information                 
because his character and his reputation is on the line.                       
                                                                               
MR. BROWN concluded that this is an early stage, and likely results            
of these secret deliberations is going to be dismissals of                     
complaints.                                                                    
                                                                               
Number 0284                                                                    
                                                                               
MR. BROWN explained Section 48 deals with the committee's authority            
to revisit charges that they thought they had dismissed or disposed            
of through coming to an agreement for corrective action with the               
subject of a complaint.  He said the ethics committee feels like               
the current code doesn't provide them with that ability and it                 
creates a loophole - where you can agree to a corrective action and            
then not take it and you're off the hook.                                      
                                                                               
MS. BARNETT further explained it empowers the legislature to                   
enforce its sanctions and corrective action and provides the                   
committee a route to do that.                                                  
                                                                               
Number 0292                                                                    
                                                                               
MR. BROWN pointed out Section 49 refers back to Section 48 that if             
the ethics committee decides to charge a person, it's just a                   
conforming reference to the procedure when there's not compliance.             
                                                                               
Number 0293                                                                    
                                                                               
MR. BROWN explained Section 50, almost halfway through, deals with             
the discovery procedures that apply to proceedings under the ethics            
code.  This enables -- the reference to the rule of civil procedure            
is still there, but it also allows the committee to adopt discovery            
procedures that enable earlier discovery by the subject to the                 
benefit of that person and it also allows the committee to restrict            
the release of information - to prevent uneven gag-orders                      
basically.  Mr. Brown said, "The committee wants to tell the                   
subject, that he or she can't speak about things that come up in               
the course of discovery, they have to (indisc.) the same                       
restrictions on the complainant unless both agree, the gag-order               
basically can't be enforced."  He noted the latter part didn't come            
from the ethics committee, but he doesn't think it's something the             
committee has a strong objection to."                                          
                                                                               
     (i) A person charged under (h) [(b)] of this section may                  
     engage in discovery in a manner consistent with the Alaska                
     Rules of Civil Procedure.  The committee many adopt procedures            
     that                                                                      
                                                                               
     (1) impose reasonable restrictions on the time for this                   
     discovery and on the materials that may be discovered;                    
                                                                               
     (2) permit a person who is the subject of a complaint to                  
     engage in discovery at an earlier stage of the proceedings;               
                                                                               
     (3) impose reasonable restrictions on the release of                      
     information that the subject of a complaint acquires from the             
     committee in the course of discovery, or on information                   
     obtained by use of the committee's authority, in order to                 
     protect the privacy of persons not under investigation to whom            
     the information pertains; however, the committee may not                  
     impose restrictions on the release of information by the                  
     subject of the complaint unless the complainant has agreed to             
     be bound by similar restrictions and has not made public the              
     information contained in the complaint, information about the             
     complaint, or the fact of filing the complaint.                           
                                                                               
MS. BARNETT indicated individual members of the committee do have              
a problem with it because they have absolutely no control over the             
complainant.  She said the complainant does not receive discovery              
information - period.  It's not accessible to them.  So it's an odd            
piece of language and we don't have any control over it.                       
                                                                               
MS. BARNETT stressed that the restrictions on discovery are to                 
protect the legislator.  She said, "I know this sounds odd, but                
complaints are often filed - or can be filed against more than one             
legislator in a complaint.  And a case may even involve more than              
one legislator and it's not okay for one legislator to release                 
everything at the expense of another one, or an employee involved.             
So think of it in those terms."                                                
                                                                               
REPRESENTATIVE RYAN indicated the committee spent an awful lot of              
money substantiating a case last year on whatever process they went            
through.  He stated, "And anything that the person, about whom the             
complaint was made, had to do in their defense had to be out of                
pocket.  And I don't see that that at all is fair. ... That because            
somebody made a complaint I have to reach in my pocket and to spend            
that when the committee can take public funds, and use whatever it             
seems to use, to substantiate its form of the complaint, there                 
seems to be a basic unfairness here."                                          
                                                                               
Number 0316                                                                    
                                                                               
CHAIR JAMES asked does that mean they're going to be able to get               
discovery on their own, early on, and present it to the committee.             
Or does that mean that they get to share the information of the                
discovery that the committee has found.                                        
                                                                               
MS. BARNETT read "The committee may adopt procedures that."  She               
explained you're empowering your committee to adopt procedures that            
say, "Okay we want to be able to share discovery earlier."  She                
said there are references in here as to when discovery can be                  
allowed and the committee at times has felt like they would be                 
happy to provide discovery but the proceedings wouldn't allow it.              
So that's what we're doing in this section.                                    
                                                                               
CHAIR JAMES said she certainly understands that.  Chair James                  
indicated when you're pursuing a case like this, that maybe some of            
the first discovery that you get, which appears to be one way is               
really not that way, and so there would be an opportunity for the              
subject of the complaint to rebut earlier.  She asked what other               
reason would you want the person, who is the subject of the                    
complaint to have privileged information of the discovery until you            
received all of the discovery.                                                 
                                                                               
MS. BARNETT stated, in a logical manner, the only reason you would             
want to avoid providing discovery -- is if you have incomplete                 
information.  If you depose someone and you get a reference to                 
something and perhaps you would like to then find out what that                
reference is and follow it up, generally that's about the only time            
where you have "fiery" information that's incomplete.                          
                                                                               
Number 0335                                                                    
                                                                               
CHAIR JAMES asked what kind of an opportunity does the complainant             
have to be engaged in discovery.                                               
                                                                               
MS. BARNETT replied the complainant is not involved in the                     
discovery process.                                                             
                                                                               
CHAIR JAMES asked do they have knowledge of the discovery as it                
proceeds.                                                                      
                                                                               
MS. BARNETT explained the committee process.  She said when a                  
complainant files a complaint, this is what they get.  They file               
the complaint, they get a letter saying thank you, we've received              
your complaint.  If the committee finds they have jurisdiction,                
they adopt a resolution outlining the scope of the investigation               
and the complainant gets a copy of that.  If the committee goes to             
investigation, the complainant gets interviewed during the                     
investigation.  Many, many times the complainant has no first-hand             
knowledge.  So there's not an in-depth interview.  Then the                    
complainant gets a copy of the decision at the end of the                      
deliberation.                                                                  
                                                                               
CHAIR JAMES said she didn't understand the conversation on the gag-            
order on the subject as well as the complainant.                               
                                                                               
MS. BARNETT remarked she agrees.  She noted she is not speaking on             
behalf of the ethics committee, but "On a personal note, I would               
recommend deleting that section because it is confusing and it does            
lead - I believe if I was the subject of a complaint all of a                  
sudden I would be concerned.  I would be reading this and think Oh             
My God, the complainant gets discovery."                                       
                                                                               
Number 0348                                                                    
                                                                               
MR. BROWN said, "I think what Senator Donley wanted to accomplish              
here is to prevent the subject of the complaints from being gagged             
by the committee.  When complainants, even though they're not                  
involved in a discovery process, are in fact running around to the             
media saying, 'I know so and so did this, the committee's                      
investigating it right now.'  It's an almost impossible problem to             
try to solve and a rather clumsy effort to do so that's in this                
language here.  But it's a worthy goal that he had.  Suzie's right,            
it's not very enforceable.  There's just next to nothing the ethics            
committee's ever going to be able to do to control complainants'               
behavior."                                                                     
                                                                               
CHAIR JAMES mentioned she had made a note to talk to Senator Donley            
on this.                                                                       
                                                                               
Number 0355                                                                    
                                                                               
REPRESENTATIVE RYAN asked if the ethics committee is taking                    
depositions, does he have to hire an attorney and have them take               
depositions to protect himself.  If so, who bears the cost of that.            
If the committee wants to go through all this investigation, he                
thinks they should have a fiscal note that allows the person                   
subject to the complaint to have the same investigative process the            
committee has to protect themselves and the state will pick up the             
ticket, he thinks it's only fair.                                              
                                                                               
UNIDENTIFIED SPEAKER remarked if he's exonerated.                              
                                                                               
REPRESENTATIVE RYAN added we provide a public defender for people              
who don't get exonerated, and we pay a tremendous amount paying for            
these people's defense.                                                        
                                                                               
MS. BARNETT stressed most of the cases you would find are resolved             
long before the committee gets to anything that looks and sounds               
like a deposition.  In their series of stages you will see that,               
when they get to the formal changes in a public hearing and, as you            
recall the first one, under the new law, the committee had with                
Senator Jacko.  She said, "Those were the kinds of that level of               
involvement in a quasi judicial setting.  Yes, we're at depositions            
at that point, but most of the cases are resolved in a different               
manner under corrective actions."                                              
                                                                               
Number 0374                                                                    
                                                                               
MR. BROWN explained Section 51 deals with the confidentiality of               
proceedings before the stage of probable cause has been reached.               
He noted this is existing language for the most part until you get             
to the top of page 32.  Because we duplicate some of the language              
in the Executive Branch Ethics Code - the part about transmission              
of information about criminal wrongdoing or violations of the                  
Campaign Finance Act - it's kind of a streamlined mechanism.  If               
the committee finds something that is really criminal or that it's             
blatantly inconsistent with the way campaigns are supposed to be               
financed, it has to just transfer that information over to the                 
appropriate jurisdictional authority - though it can continue with             
its own ethics investigation.                                                  
                                                                               
MR. BROWN stated the change on top of page 32 specifies that                   
legislators, who aren't members of the committee, can't just decide            
to go sit in on deliberations before the probable cause stage has              
been reached - that is to address the problem Ms. Barnett spoke of             
a little while ago.                                                            
                                                                               
REPRESENTATIVE BERKOWITZ mentioned he spends a lot of time in court            
rooms looking at people and accusing them of crimes.  The Sixth                
Amendment is pretty clear to him that you should have the right to             
confront your accusers.                                                        
                                                                               
MR. BROWN responded these aren't your accusers - the ethics                    
committee isn't your accuser.  He mentioned he didn't know in                  
common law if there is much precedence for having the opportunity              
to confirm the person who's hearing your case, he's also a member              
of the same body you're a member of.  He thinks there are a lot of             
things here that are just always going to be different, this is not            
really a judicial creature, it's a committee of the legislature.               
                                                                               
Number 0393                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ stated, "Subsequent to the determination              
of probable cause is the subject entitled to be present at all."               
                                                                               
MS. BARNETT said, "First let me just remind you that we're at the              
point where the committee is serving as the jury and having the                
subject in the jury room is something inconceivable to almost                  
anyone involved in the process.  During the deliberation when the              
jury goes out and goes into their room on the side, and that's                 
what's happening is that they're acting in their jury capacity.                
Otherwise the subject of a complaint is told that they have access             
to the committee, but not during deliberations and they may request            
it at any time.  And we have had subjects come in and meet with the            
committee, subjects write to the committee, subjects ask me to say             
something to the committee - they have access."                                
                                                                               
REPRESENTATIVE BERKOWITZ repeated "Subsequent to the determination             
of probable cause."  He said he just wanted to ensure that the                 
subject of the investigation is entitled to be present at all fact             
finding stages of the proceedings.                                             
                                                                               
Number 0405                                                                    
                                                                               
MS. BARNETT stated, "As long as you are not including..."                      
                                                                               
TAPE 98-50, SIDE A                                                             
Number 0001                                                                    
                                                                               
REPRESENTATIVE RYAN said, "... And there was no responsibility on              
the part of the people who brought forth the accusations, or                   
whatever.  In fact they profited quite a bit because the person's              
goods were confiscated as a fine.  And then when they were finally             
determined to be guilty, another fine was imposed and their                    
relatives were sold into slavery to pay that fine.  It's an old                
tradition, it (indisc.) Roman Catholic Church, it's well                       
established in history.  And bringing it forth and codifying it in             
Alaska law - I'm not too sure if we really want to do that.                    
English common law says you look your accuser in the eye."                     
                                                                               
Number 0017                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ said he had the initial concern that                  
Representative Ryan does.  But, as he understands it, we're in a               
situation here where anytime the accuser is presenting evidence,               
subsequent to the determination that a proceeding will occur, you              
do have the right to be present.  This is akin to - in a criminal              
proceeding the defendant is not allowed to be present during jury              
deliberations, which everyone understands is acceptable, and the               
defendant is not required to be present during the determination of            
probable cause in front of a grand jury, although a defendant can              
present testimony to a grand jury.  Representative Berkowitz stated            
he believes a probable cause determination here - would the subject            
have the opportunity to present testimony or present evidence.                 
                                                                               
MS. BARNETT replied the subject always has the opportunity to                  
present evidence and is in fact encouraged to do so in a variety of            
ways.  She said, "However, I did misspeak - what this bill allows              
is the committee may permit the subject of the complaint to attend             
a meeting.  So it empowers - at the moment - the committee was                 
unsure whether they actually could allow the subject of the                    
complaint to attend their executive sessions.  This is allowing the            
committee to do so."                                                           
                                                                               
REPRESENTATIVE BERKOWITZ stated, "So this opens it up over..."                 
                                                                               
CHAIR JAMES interjected with exceptions to the deliberations and               
the vote.                                                                      
                                                                               
MS. BARNETT replied correct.                                                   
                                                                               
MR. BROWN explained the final provision in Section 51 allows you to            
waive the confidentiality provisions.  If you are a co-subject of              
a complaint, you can't waive somebody else's confidentiality                   
provisions.  You can only waive your own confidentiality provisions            
here.                                                                          
                                                                               
     The confidentiality provisions of this subsection may be                  
     waived by the subject of the complaint, except that the                   
     subject of the complaint may not waive the confidentiality                
     duty the committee owes to others and may not require the                 
     committee to deliberate in public.                                        
                                                                               
Number 0075                                                                    
                                                                               
MR. BROWN explained Section 52 deals with the options available to             
the committee as punishment, it mandates that there be a timetable             
for compliance if there are certain steps in compliance, which is              
meant to protect the subject.  And it testifies that it may include            
fines, but fines have to be imposed by the legislature - they can't            
be imposed by the committee.                                                   
                                                                               
MS. BARNETT added that sanctions are imposed by the appropriate                
body of the House, or the Senate, or the appointing authority.                 
We're talking about something, in the next few sections where the              
committee recommends putting into language, but the legislature                
holds the final power on all sanctions.                                        
                                                                               
Number 100                                                                     
                                                                               
MR. BROWN explained Section 53 deals with the time line reporting              
and the committee's ability to recommend further sanctions to the              
legislature if the committee doesn't feel that compliance has been             
met by the subject.  For example, when the committee recommends                
something and that recommendation is followed by the appropriate               
house of the legislature, the committee will be notified - okay the            
House and Senate went ahead and did what you said we should do.                
The subject then has the responsibility of keeping the committee               
informed, not the whole body, of whether or not they're doing what             
they were told to do.  If they don't meet the time line, then the              
committee has the responsibility to decide - well, we need to tell             
the House or the Senate that Representative X or Senator Y didn't              
do what the legislature told him to do.  It's the committee's                  
responsibility to go back and say - well, the legislature told                 
Representative X to do this, and he didn't, and therefore we're                
back to you again notifying you of that fact.                                  
                                                                               
MR. BROWN explained Section 54 is where the subject is a                       
legislative employee, appointing authorities are told what they                
will do in response to the committee's findings to punish the                  
person.  He said this actually expands the appointing authority's              
ability to impose a different sanction, but it mandates that the               
appointing authority shall impose a sanction and again puts into               
statute the need for some timeliness to the compliance which                   
doesn't exist right now.                                                       
                                                                               
REPRESENTATIVE RYAN asked is the appointing authority the person               
who hires this legislative employee.                                           
                                                                               
MR. BROWN replied we get to that in the next section (Section 55)              
of the bill, it specifies very clearly who the appointing authority            
is for everyone, because that is also a gray area of the current               
code.                                                                          
                                                                               
Number 0151                                                                    
                                                                               
MR. BROWN referred to Section 55, he said it's very easy with                  
personal staff to figure out who the appointing authority is, but              
for committee staff, or employees to the Legislative Affairs                   
Agency, it's not as clear.                                                     
                                                                               
MR. BROWN read the list for the appointing authorities: (1)                    
Legislative Council - Legislative Affairs Agency and anyone else               
whose floating out there, (2) Legislative Budget and Audit                     
Committee - the fiscal analyst and everyone at the Division of                 
Legislative Finance and Legislative Audit, including the                       
Legislative and Budget and Audit Committees, (3) appropriate                   
Finance Committees for the House and Senate Finance staff, (4)                 
appropriate Rules Committee - for standing committees, and staff in            
the Chief Clerk and Senate Secretary's Offices, (5) is where most              
staffs are going to come.  The legislator is given an out here, if             
you don't want to be the appointing authority for your staff                   
because you're afraid that it's going to look like your not                    
imposing the sanction recommended by the committee, you have the               
option of having the Rules Committee to do that for you - so it's              
impartial as possible, (6) Ombudsman - employees, and (7) the                  
Ombudsman himself - the legislature.                                           
                                                                               
CHAIR JAMES asked what if a member of the ethics committee is                  
unethical.                                                                     
                                                                               
MR. BROWN replied the appointing authority would seem to be the                
speaker or the president.                                                      
                                                                               
MS. BARNETT said because they would be considered joint employees              
they would go before Legislative Council.                                      
                                                                               
MR. BROWN indicated anyone else, whose floating around there, we'll            
let Legislative Council be the appointing authority for.                       
                                                                               
Number 0196                                                                    
                                                                               
MR. BROWN explained Section 56 is a new section, it lists several              
options that are available to the ethics committee.  He indicated              
right now there isn't a real limit on what the committee can try to            
impose.  This gives people the idea of what might happen if they               
violate the code.  It's been the duty of this committee to come up             
with appropriate penalties, some of those things that have been                
used in cases over the past few years appear in this list.                     
                                                                               
MS. BARNETT stated these are only recommendations to the                       
legislature and the committee is not stuck with them.  Most of all             
it's recommendations to the legislature and the legislature, when              
it gets a list of ten recommended sanctions, it can pick (1), (3)              
and (7) and dump the rest, or it can create a whole new list.                  
                                                                               
REPRESENTATIVE BERKOWITZ said as he understands it, based on some              
of the prior sections, if there's a sanction imposed on one of his             
employees, he could reduce it.                                                 
                                                                               
MS. BARNETT replied no.  She referred to page 33, lines 9 [8] and              
10:                                                                            
                                                                               
     The appointing authority shall enforce the sanction and shall             
     report to the committee at a time specified by the committee              
     concerning the employee's compliance with the sanction.                   
                                                                               
MS. BARNETT explained you have the ability to impose a sanction                
recommended by the committee, or impose a different (indisc. -                 
noise), but you shall enforce the sanction.                                    
                                                                               
Number 0249                                                                    
                                                                               
REPRESENTATIVE BERKOWITZ stated, "If you say, for example this is              
a $500 fine, I can say no, it's a $100 fine, that's a different                
sanction, but I can enforce it still."                                         
                                                                               
MS. BARNETT replied correct, because again in that upper language              
it says:                                                                       
                                                                               
     The appointing authority shall assume the validity of the                 
     committee's findings and determine and impose the appropriate             
     sanctions.                                                                
                                                                               
MS. BARNETT added, "You don't get to debate, guilt or innocence, or            
finding a probable cause.  That's not yours to determine, but you              
get to determine and oppose the appropriate sanction."                         
                                                                               
REPRESENTATIVE BERKOWITZ said for example you oppose a $5,000 fine             
required divestiture.  He can say, "Well, no divestiture, and $1.00            
token fine."                                                                   
                                                                               
MS. BARNETT replied that's correct.                                            
                                                                               
REPRESENTATIVE BERKOWITZ stated, "So I can essentially, as a                   
legislator, gut what the committee does."                                      
                                                                               
MS. BARNETT responded that is the bottom line of everything to do              
with the ethics committee, the legislature and an individual                   
legislator hold the power.                                                     
                                                                               
REPRESENTATIVE BERKOWITZ said he has enough confidence in his staff            
not to worry that they'll run afoul.  But he would imagine that                
there could be circumstances where this kind of power could be                 
readily abused.  There is a distinction between allowing an                    
individual legislator to be the final arbitrator, and allowing the             
legislature as a whole to go through its various (indisc.) to                  
dispense this justice.  The pressure on an individual legislator,              
particularly where staff is concerned could be relatively enormous.            
You don't have a judge handing down sentences against her son or               
her employee, it's inconceivable to him that you can be in that                
sort of situation.                                                             
                                                                               
CHAIR JAMES stated we can give it to the Rules Chairman.                       
                                                                               
REPRESENTATIVE BERKOWITZ responded even the act of giving it to the            
Rules Chairman shows - you're caught on the horns of a dilemma.                
Either you comply with the sanctions, and you do what's                        
recommended, or you do the loyal thing - which is to protect your              
staff even from their own folly - and get hammered.  He believes               
the legislature should be taken out of the loop as far as                      
administering punishment to his or her own staff.                              
                                                                               
CHAIR JAMES asked who would he suggest do it.                                  
                                                                               
REPRESENTATIVE BERKOWITZ replied the legislature as a whole.                   
                                                                               
MR. BROWN said he thinks the legislature might find that unwieldy.             
                                                                               
CHAIR JAMES suggested the Legislative Council.                                 
                                                                               
MR. BROWN replied maybe it could be the Legislative Council.  Right            
now it's the appointing authority but there's no clear definition              
of who the appointing authority is.                                            
                                                                               
Number 0300                                                                    
                                                                               
CHAIR JAMES stated she agrees with Representative Berkowitz, she               
also believes it should be Legislative Council in all cases.                   
                                                                               
MS. BARNETT referred to page 33, subsection (b):                               
                                                                               
     (5) the legislator who made the hiring decision for employees             
     of individual legislators; however, the legislator may request            
     the appropriate rules committee to act in the legislator's                
     stead;                                                                    
                                                                               
MS. BARNETT explained she believes the committee, when they created            
the ethics bill, had actually said the appropriate Rules Committee             
as opposed to Legislative Council because you have the protocol                
that says, "House members won't do business over in the Senate side            
and Senate members won't do business on the House side."  They                 
originally thought it was better not to have the legislator in for             
the reasons as stated by Representative Berkowitz and had                      
recommended the appropriate Rules Committee and felt comfortable               
with that.  It changed over the years but she thinks the                       
legislature would prefer the Rules Committee versus Legislative                
Council.                                                                       
                                                                               
CHAIR JAMES said they ought to have an authority instead of                    
spreading it out and causing a lot more distress.  She asked how it            
changed over the years.  Was that statutory changes?                           
                                                                               
Number 0324                                                                    
                                                                               
MS. BARNETT replied no, just in the bill itself.  The reason is                
because some of the legislators said, "Darn it, we hired the guy               
and we want to deal with him."                                                 
                                                                               
CHAIR JAMES suggested they earmark that section, they will begin on            
Section 57 on Thursday.  She announced they will also be hearing HB
330 and HB 257 before they go into SB 105.                                     
                                                                               
ADJOURNMENT                                                                    
                                                                               
Number 0381                                                                    
                                                                               
CHAIR JAMES adjourned the House State Affairs Standing Committee at            
10:00 a.m.                                                                     

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