Legislature(2005 - 2006)CAPITOL 106
04/26/2005 08:00 AM House STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| HB194 | |
| HB248 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 194 | TELECONFERENCED | |
| *+ | HB 248 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE STATE AFFAIRS STANDING COMMITTEE
April 26, 2005
8:06 a.m.
MEMBERS PRESENT
Representative Carl Gatto, Vice Chair
Representative Jim Elkins
Representative Bob Lynn
Representative Jay Ramras
Representative Berta Gardner
Representative Max Gruenberg
MEMBERS ABSENT
Representative Paul Seaton, Chair
COMMITTEE CALENDAR
HOUSE BILL NO. 194
"An Act prohibiting a public officer from taking official action
regarding a matter in which the public officer has a significant
financial interest; and defining 'official action' for purposes
of the chapter generally referred to as the Executive Branch
Ethics Act."
- HEARD AND HELD
HOUSE BILL NO. 248
"An Act relating to the exemption from public inspection of
certain records and information of public agencies that are
compiled in connection with peace or correctional officers."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 194
SHORT TITLE: EXEC. BRANCH ETHICS: FINANCIAL INTERESTS
SPONSOR(s): REPRESENTATIVE(s) GARA
03/03/05 (H) READ THE FIRST TIME - REFERRALS
03/03/05 (H) STA, JUD
04/26/05 (H) STA AT 8:00 AM CAPITOL 106
BILL: HB 248
SHORT TITLE: PUBLIC RECORDS & POLICE/CORRECT. OFFICERS
SPONSOR(s): REPRESENTATIVE(s) HAWKER
04/04/05 (H) READ THE FIRST TIME - REFERRALS
04/04/05 (H) STA, JUD
04/26/05 (H) STA AT 8:00 AM CAPITOL 106
WITNESS REGISTER
REPRESENTATIVE LES GARA
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified as sponsor of HB 194.
MYRL THOMPSON
Wasilla, Alaska
POSITION STATEMENT: Testified on behalf of himself during the
hearing on HB 194.
REPRESENTATIVE MIKE HAWKER
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 248, as sponsor.
EVERETT ROBBINS
Anchorage, Alaska
POSITION STATEMENT: Testified on behalf of the Anchorage Police
Department Employees' Association.
JULI LUCKY, Staff
to Representative Mike Hawker
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Answered a question during the hearing on
HB 248, on behalf of Representative Hawker, sponsor.
ACTION NARRATIVE
VICE-CHAIR CARL GATTO called the House State Affairs Standing
Committee meeting to order at 8:06:44 AM. Representatives
Elkins, Lynn, Gardner, and Gatto were present at the call to
order. Representatives Ramras and Gruenberg arrived as the
meeting was in progress.
HB 194-EXEC. BRANCH ETHICS: FINANCIAL INTERESTS
VICE CHAIR GATTO announced that the first order of business was
HOUSE BILL NO. 194, "An Act prohibiting a public officer from
taking official action regarding a matter in which the public
officer has a significant financial interest; and defining
'official action' for purposes of the chapter generally referred
to as the Executive Branch Ethics Act."
8:07:08 AM
REPRESENTATIVE LES GARA, Alaska State Legislature, as sponsor of
HB 194, stated that the proposed legislation "seeks to close the
major loophole that we've been told that we have in our Ethics
Act." He reviewed that under current law, executive branch
employees cannot act on matters "in which you intend ... or ...
know you are going to benefit yourself," with one exception: A
person can benefit him/herself if the benefit is what the law
calls, "insignificant." He said there have been two legal
opinions thus far regarding whether that loophole exists. The
one opinion from Bob Bundy - an attorney hired by Governor Frank
Murkowski after the dispute involving Attorney General Gregg
Renkes - is that $100,000 in traded stock was insignificant.
The other opinion from Tom Daniel - who was hired to represent
the personnel board - was issued a few weeks ago to say that
that amount was indeed significant.
8:08:16 AM
REPRESENTATIVE GARA said this is a "gray" issue. He noted that
some states define what is significant - in terms of a conflict
of interest - as an ownership interest of $5,000 or more. He
said, "That's the bright line that we want to draw." He said he
thinks most Alaskans would think $5,000 is a fair amount. He
remarked that many times a legislator will declare a conflict of
interest and then be told to vote anyway, and he suggested that
may be a subject for a future bill.
8:11:11 AM
REPRESENTATIVE GARDNER revealed that she owns stock in [General
Communication, Inc. (GCI)] and fully expects that at some point
a matter relating to GCI will come before the legislature and
she will have to vote on it. She said after making a disclosure
she would still have to participate. She asked, "What would
your bill do if it's passed and somebody has $5,000 interest in
some particular entity?"
8:11:52 AM
REPRESENTATIVE GARA clarified that there are different acts that
regulate the different branches of government. The proposed
legislation would just address the executive Ethics Act. He
said, "In the executive area you wouldn't vote." He explained,
"You should not be on the Oil & Gas Conservation Commission and
have an interest in a gas field that you're about to develop,
that the ... commission is about to decide upon. You should
recuse yourself; you should say, 'Look, I've got a conflict of
interest.'" He said a person only violates the law when he/she
knows how he/she stands to gain; therefore, mutual funds would
not apply, because normally a person doesn't know how a mutual
fund is invested.
8:13:22 AM
REPRESENTATIVE GARA, in response to a question from
Representative Gardner, said the phrase "public officer" in the
title of the bill does indeed refer only to an officer within
the executive branch of government.
8:14:16 AM
REPRESENTATIVE GARA, in response to a question from Vice Chair
Gatto, said it would be important for someone in the executive
branch of government to be sensitive to the possibility that
he/she may have invested in stock that could benefit from a
regulation, for example.
8:15:20 AM
REPRESENTATIVE LYNN asked Representative Gara if he knows what
amounts have been spent on executive investigations.
8:15:53 AM
REPRESENTATIVE GARA said he doesn't know. He said the governor
paid someone in private practice at a rate he guessed would have
been approximately $150 - $200/hour.
8:16:33 AM
REPRESENTATIVE LYNN said he may have an amendment related to
that subject.
8:16:44 AM
VICE CHAIR GATTO asked Representative Lynn to hold the
amendment.
8:16:51 AM
REPRESENTATIVE ELKINS asked if an executive could put his/her
stocks in a blind trust, where it would be known what the stocks
were, but once in the trust the executive would have no
management over them.
8:17:10 AM
REPRESENTATIVE GARA said the first question would apply, which
is for the executive branch public officer to ask whether he/she
would stand to benefit from that stock. He offered an example
whereby a person had a lot of stock in BP that was put into a
blind trust. That person happens to be on the negotiating team
that is about to hand over the gas pipeline proposal to BP.
He/she doesn't know if the BP stock is being traded in the blind
trust, but does know it exists, and thus, to be safe, should
recuse him/herself or get rid of the blind trust.
8:20:08 AM
REPRESENTATIVE LYNN suggested that $5,000 is chicken feed to
many and asked if at some point people's hands would be tied so
that they couldn't even function.
8:21:16 AM
REPRESENTATIVE GARA reiterated that the main point would be
whether they know that they would be impacted.
REPRESENTATIVE LYNN said it seems difficult to try to get inside
someone's head to figure out his/her intent, while using $5,000
as a marker. He said the amount of money doesn't get to intent.
8:22:45 AM
REPRESENTATIVE GARA responded, "No, that's just after you find
to intent."
8:23:02 AM
VICE CHAIR GATTO pointed out that if the person didn't make any
money, the question would never come up, even if he/she had the
intent.
8:23:22 AM
REPRESENTATIVE GARDNER said she thinks [Vice Chair Gatto] is
correct. She referred to [page 1, lines 8-12], which read as
follows:
(1) [OFFICER'S] personal or financial
interest in the matter and [IS INSIGNIFICANT, OR OF A
TYPE THAT IS POSSESSED GENERALLY BY THE PUBLIC OR A
LARGE CLASS OF PERSONS TO WHICH THE PUBLIC OFFICER
BELONGS; OR (2)] action taken or influence exercised
by the public officer would have insignificant or
conjectural effect on the matter;
8:24:00 AM
REPRESENTATIVE GRUENBERG asked if "immediate family member" is
defined in law.
8:24:11 AM
REPRESENTATIVE GARA said other provisions of law refer to family
members. He stated his believe that ["family member"] includes:
parent, child, or even sibling. He indicated that not knowing
that a spouse of sibling owns certain stock is one thing, but
"you really don't want to ... transfer your BP stock to your
wife or your husband and say that 'now I can go ahead and act on
this matter.'"
8:24:48 AM
REPRESENTATIVE GRUENBERG said he might know that he set up a
trust for his child, and that child might benefit from his
actions, for example.
8:26:45 AM
REPRESENTATIVE GARA pointed to the reference of "immediate
family member" on page 2, line 3. He talked about the bill
being listed in "the negative."
8:28:41 AM
REPRESENTATIVE GRUENBERG said he's focusing on page 2, line 7,
and suggested that Representative Gara consider including a
reference to "family member" there.
8:30:19 AM
REPRESENTATIVE GARA said he doesn't think that's necessary,
because the words don't have to be repeated.
8:30:50 AM
REPRESENTATIVE GRUENBERG indicated that there is a difference
between saying "a person" versus "the person"; the former would
mean the public officer, but the latter could also include a
family member.
8:31:53 AM
VICE CHAIR GATTO stated his intent to hold the bill in
committee.
8:32:05 AM
REPRESENTATIVE ELKINS recommended that the bill be moved on to
the House Judiciary Standing Committee to "fight it out over
there."
8:33:06 AM
REPRESENTATIVE LYNN moved Conceptual Amendment 1, which read as
follows [original punctuation provided]:
Any state employee convicted of violating a conflict
of interest law, may be liable for reimbursement to
the state for the cost of the investigation of the
complaint, in addition to any other fines imposed by
an administrative or judicial process.
8:33:59 AM
REPRESENTATIVE GARDNER objected to point out that Conceptual
Amendment 1 uses the phrase "state employee" while the language
in the bill is "public officer".
8:34:09 AM
REPRESENTATIVE GARDNER moved an amendment to Conceptual
Amendment 1, as follows:
Delete "state employee"
Insert "public officer"
VICE CHAIR GATTO asked if there was any objection to the
amendment to Conceptual Amendment 1. There being none, the
amendment to Conceptual Amendment 1 was adopted.
8:34:31 AM
REPRESENTATIVE GRUENBERG stated his support of Conceptual
Amendment 1 [as amended]. He asked Representative Gara if the
word "convicted" is the appropriate word to use.
8:34:59 AM
REPRESENTATIVE GARA said he thinks it's a fair not to impose a
penalty on the person unless it's clear he/she "did something
wrong."
8:35:44 AM
REPRESENTATIVE GRUENBERG asked if the term "investigation" would
also include prosecution.
8:35:55 AM
REPRESENTATIVE GARA responded, "If I were a judge I would say it
did."
8:36:13 AM
REPRESENTATIVE GRUENBERG asked if "any other fines" would be
broad enough. He mentioned civil penalties.
8:36:31 AM
REPRESENTATIVE GARA stated that a penalty is a fine.
8:36:39 AM
REPRESENTATIVE GARDNER withdrew her objection [to Conceptual
Amendment 1, as amended].
8:36:49 AM
VICE CHAIR GATTO asked if there was any further objection [to
Conceptual Amendment 1, as amended]. There being none, it was
so ordered.
8:37:10 AM
REPRESENTATIVE RAMRAS moved Amendment 2, as follows:
Page 2, line 9:
Delete "$5,000"
Insert "$50,000"
REPRESENTATIVE RAMRAS said he thinks there is "a significant
problem with attracting a high-quality talent to the executive
branch, as well as other parts of government." He stated that
$5,000 would equal less than 100 shares of many publicly traded
companies.
8:37:43 AM
REPRESENTATIVE GARA said everyone is focusing on shares;
however, the publicly traded Wall Street company is the least
important of the possible violations. He said the real focus is
on the smaller companies where "a legislative act would have a
real bump on that company's value." He offered an example. He
said he thinks $50,000 is a bit "out."
8:40:01 AM
REPRESENTATIVE RAMRAS replied that he does not read any language
regarding large versus small companies in the bill. He
reiterated that he wants to attract high quality people to the
executive branch. He described the amount of $5,000 as "an
ever-shrinking sum of money," and keeping that amount in the
bill as "a little bit short-sided."
8:40:58 AM
REPRESENTATIVE GRUENBERG said he tends to agree that $5,000 is
too low, but he said he thinks that $50,000 is too high.
"Public official" can be anybody. He suggested that another
figure may be more appropriate.
8:42:00 AM
REPRESENTATIVE GARA said many states use either a $5,000 or
$10,000 limit. He said, "Frankly, the states are all over the
map, which is why Mr. Bundy had a hard time figuring out how to
interpret Alaska law, unless we came up with a bright line." He
indicated that he would have not problem if the amount were
$10,000. He explained:
Whether the company is huge or not huge has an impact
to the answer on that first question. The first
question is: Did you do it knowing it was going to
improve your financial position? And if it's a huge
company and you're working on small matter ..., nobody
can say that you knew that was going to have an impact
on your financial position. ... But, if it's a small
company, in that your action really involves its only
big business deal in the last year, [it's] a whole
different question.
8:43:10 AM
VICE CHAIR GATTO offered an example in which a company with a
contract for a huge job may not actually make any money.
[Regarding Amendment 2] he said, "I sort of support it, because
it's going to be very difficult, without a very significant
investigation, to determine that a person has indeed knowingly
entered into an agreement to direct legislation so they can make
money. And then, the question is, "How much money?"
8:45:28 AM
REPRESENTATIVE GARDNER objected to Amendment 2.
8:45:35 AM
REPRESENTATIVE GRUENBERG also objected to Amendment 2.
8:45:42 AM
REPRESENTATIVE LYNN said he agrees that it's crucial to attract
high talent to fill public offices, but he suggested that it may
be more crucial to attract people with high ethics. He stated,
"No dollar amount can make somebody ethical that's not ethical;
nothing we write here can work magic ..., it can only hold
people accountable." He said he doesn't know what the magic
dollar figure would be. He posited that the committee would
have to pick a number that's both reasonable and practical, and
he said $50,000 seems far too high an amount. He said he might
agree to $10,000.
8:47:06 AM
REPRESENTATIVE ELKINS asked, "How far down in the executive
branch does 'public officer' or 'official' go?"
8:47:18 AM
VICE CHAIR GATTO noted that Representative Elkins' question
delves into the entire bill, not just Amendment 2; however, he
said he would allow it.
8:47:37 AM
REPRESENTATIVE GARA answered:
It applies to all executive branch employees, but
remember, you're only forbidden from doing things
where you know that your action is going to cause you
a financial gain.
REPRESENTATIVE GARA said it's only those in the higher level of
public office who would have the opportunity to do things that
would cause them financial gain. He said Mr. Bundy recommended
a $10,000 limit. He said he knows there was "a lot of
controversy over ... his role in this," but he said he thinks
Mr. Bundy "deserves all the credit in the world" for working
hard on the issue.
REPRESENTATIVE GRUENBERG said he would support the amount of
$10,000.
8:49:29 AM
REPRESENTATIVE LYNN moved an amendment to Amendment 2, to change
"$50,000" to "$10,000".
8:50:36 AM
REPRESENTATIVE RAMRAS [objected] to the amendment to Amendment
2.
8:50:52 AM
REPRESENTATIVE ELKINS said he thinks the people being targeted
are in higher executive public offices; therefore, a higher
amount of $40,000 to $50,000 is appropriate.
8:51:18 AM
[A roll call vote was begun; however, there was an interruption
to request clarification mid-way, which voided the roll call.]
A roll call vote was taken. Representatives Gruenberg, Gatto,
Lynn, and Gardner voted in favor of the amendment to Amendment
2. Representatives Elkins and Ramras voted against it.
Therefore, the amendment to Amendment 2 passed by a vote of 4-2.
8:53:09 AM
REPRESENTATIVE RAMRAS withdrew Amendment 2 [as amended].
8:53:52 AM
REPRESENTATIVE RAMRAS moved Amendment 3, as follows:
Page 2, line 9:
Delete "$5,000"
Insert "$40,000"
8:54:05 AM
REPRESENTATIVE GRUENBERG objected.
A roll call vote was taken. Representatives Elkins and Ramras
voted in favor of Amendment 3. Representatives Gatto, Lynn,
Gardner, and Gruenberg voted against it. Therefore, Amendment 3
failed by a vote of 2-4.
8:55:15 AM
REPRESENTATIVE GRUENBERG said sometimes several managed funds
may aggregate to a little more than $10,000, particularly with
inflation. He suggested $15,000.
8:56:01 AM
REPRESENTATIVE GARA reiterated that he doesn't think the managed
fund has a bearing on the bill.
8:56:19 AM
REPRESENTATIVE GRUENBERG clarified that he is not talking about
a mutual fund, but rather a managed account which may include
30-40 stocks. He said an individual stock may well be worth
more than $10,000.
8:56:38 AM
VICE CHAIR GATTO proffered:
I think what he's referring to is: Let's say he hires
me to manage all of his assets. And he has this
asset, and I'm just trying to make him a good dollar.
It could be my decision that says, "I know this guy's
going to be able to vote on something and ... he owns
a compelling share." That's different than a mutual
fund where nobody knows who he is.
8:57:01 AM
REPRESENTATIVE GRUENBERG responded, "That's exactly my concern."
8:57:25 AM
REPRESENTATIVE GARA responded:
I don't know how to say this any more clearly. ... If
... he's managing a portfolio of very largely traded
companies, you're not going to violate that first
prong of the law. The first prong of the law is: Is
what you're doing in your public capacity going to
make you money on that stock? I can't imagine that
there's anything that is going to make you money on a
publicly traded large, large, large company when you
make a decision like that. And so, that's why, in the
history of the Ethics Act, when people have probably
owned $5,000- or $10,000-worth of a stock, nobody's
ever prosecuted them for it. It's the distinction
between that and a smaller company where the thing
you're working on is their big deal for the year.
That's a big difference.
8:58:26 AM
REPRESENTATIVE GRUENBERG moved Amendment 4, as follows:
Page 2, line 9:
Delete "$5,000"
Insert "$10,000"
The committee took an at-ease from 8:59:37 AM to 9:00:59 AM.
9:01:42 AM
REPRESENTATIVE GRUENBERG restated Amendment 4.
9:02:03 AM
REPRESENTATIVE RAMRAS objected to Amendment 4.
REPRESENTATIVE RAMRAS moved an amendment to Amendment 4, to
change "$10,000" to "$35,000".
VICE CHAIR GATTO objected to the amendment to Amendment 4.
A roll call vote was taken. Representatives Elkins and Ramras
voted in favor of the amendment to Amendment 4. Representatives
Lynn, Gardner, Gruenberg, and Gatto voted against it.
Therefore, the amendment to Amendment 4 failed by a vote of 2-4.
9:03:37 AM
REPRESENTATIVE RAMRAS maintained his objection to Amendment 4.
He said that if $10,000 is too low now, ten years from now, with
inflation, it really will be too low. He reiterated his
previous comments regarding attracting high quality talent.
9:05:36 AM
REPRESENTATIVE LYNN reiterated that he agrees there is a need to
attract and retain talented [public officers], but said, "Talent
needs to include ... ethics."
9:05:52 AM
REPRESENTATIVE GARDNER concurred [with Representative Lynn].
She emphasized the importance of discouraging participation out
of self-interest, and encouraging participation for the public
good.
9:06:12 AM
VICE CHAIR GATTO stressed the importance of counting public
perception, which currently may be that "we might be ...
straying a little bit beyond the bar."
9:06:31 AM
REPRESENTATIVE LYNN stated his support of [Amendment 4].
9:06:56 AM
A roll call vote was taken. Representatives Lynn, Gardner,
Gruenberg, and Gatto voted in favor of Amendment 4.
Representatives Ramras and Elkins voted against it. Therefore,
Amendment 4 passed by a vote of 4-2.
9:08:04 AM
REPRESENTATIVE GARA made it clear that he would have preferred
that the amount had stayed at $5,000; however, since it did not,
he recommended deleting the language following "5,000" on lines
9 and 10.
9:09:24 AM
VICE CHAIR GATTO moved Amendment 5, as follows:
Page 2, line 9:
Between "$5,000" and "."
Delete "or one percent of the total value of the
business, whichever is less"
9:10:09 AM
REPRESENTATIVE RAMRAS objected to Amendment 5 and the bill in
general, using the expression that "it stinks."
9:10:25 AM
REPRESENTATIVE GRUENBERG, as a point of order, asked
Representative Ramras to rephrase his opinion.
9:10:51 AM
REPRESENTATIVE RAMRAS substituted the word "stinks" to opine
that the bill is, although well-intentioned, "poorly
constructed, ... narrow, and short-sighted."
9:11:17 AM
REPRESENTATIVE LYNN said he thinks any committee member has an
obligation to speak freely. He said, "If we think something
stinks - rightly or wrongly - I think we ought to be able to say
it. Last I heard, we still have the First Amendment."
VICE CHAIR GATTO indicated that that is true; however, any
individual is able to respond to a statement. He said he thinks
Representative Gruenberg's comment was just as appropriate. He
redirected the committee's focus to Amendment 5.
9:11:31 AM
REPRESENTATIVE RAMRAS withdrew his objection to Amendment 5.
VICE CHAIR GATTO asked if there was any further objection to
Amendment 5. There being none, Amendment 5 was adopted.
9:12:26 AM
MYRL THOMPSON, testifying on behalf of himself, shared the
advise of his father to the committee: "If you're ever in a
position of power, and something comes up that you're going to
make a decision on, and it benefits you, the thing to do is to
recuse yourself. Or, if you can't recuse yourself, vote against
... your benefit." He said this bill should be "a no-brainer,"
especially considering "what we've been through." He spoke of
former Attorney General Gregg Renkes. He indicated that he
witnessed Mr. Renkes pushing for something that would directly
benefit himself, which Mr. Thompson said was wrong. He said the
general public has a huge distrust in the public process, and
"this is just a simple way of addressing that." He stated that
there's no equating the amount of money somebody makes with
getting good people into positions. He echoed Representative
Lynn's comments about focusing on getting ethical people to
work. He said, "You guys need to get the trust of the public
back behind you."
9:14:26 AM
VICE CHAIR GATTO said he thinks the use of the phrase "you guys"
is disrespectful.
9:14:41 AM
MR. THOMPSON said he meant no disrespect. He continued with his
testimony. He revealed that in the area where he lives, a poll
was conducted and 87 percent of the people polled said ethics
are needed. He said it's because of "the Renkes issue." He
concluded, "This is just a cut and dry problem."
9:15:42 AM
REPRESENTATIVE RAMRAS said he shares Mr. Thompson's point of
view that the attorney general's behavior was reprehensible.
Notwithstanding that, he spoke of assigning "a specific
incremental value." He asked, "Do you really think that that's
a viable mechanism for ascertaining ethics in government, or
does it become an impediment to exclude certain people that have
been successful in the private sector from ... going into the
public arena?"
9:16:33 AM
MR. THOMPSON said he doesn't really care how much stock somebody
may own; all he/she has to do is "recuse yourself from the
process if something you own is going to benefit you, with your
being in charge of it."
9:16:51 AM
REPRESENTATIVE RAMRAS said recusal is not the gist of the bill.
He said the bill would put up a threshold that says, "If you
have accumulated this much value, you can't participate." He
said it's discrimination. He said he finds it an offensive way
to deal with the ethics issue.
9:18:09 AM
MR. THOMPSON said he takes exception to the practice on the
House floor where a Representative recuses him/herself and is
then made to vote anyway. He said he thinks that needs to be
changed. He said, "The matter over on the administration side
is that they're not recusing [themselves], and therefore this
limit needs to be set. I mean, it's the public trust."
9:18:44 AM
VICE CHAIR GATTO said the activities on the House floor may be a
subject for a different bill.
9:18:54 AM
REPRESENTATIVE GRUENBERG stated his appreciation for the care
and interest Mr. Thompson has taken in the legislature this
year.
VICE CHAIR GATTO ascertained that there was no one else to
testify.
9:19:34 AM
REPRESENTATIVE LYNN stated his support in holding the bill. He
stated for the record: "We worry about a budget deficit, and we
also need to be worrying about a trust deficit." He offered
further details.
9:20:23 AM
VICE CHAIR GATTO [announced that HB 194 was heard and held].
HB 248-PUBLIC RECORDS & POLICE/CORRECT. OFFICERS
VICE CHAIR GATTO announced that the last order of business was
HOUSE BILL NO. 248, "An Act relating to the exemption from
public inspection of certain records and information of public
agencies that are compiled in connection with peace or
correctional officers."
9:21:30 AM
REPRESENTATIVE GARDNER moved to adopt the committee substitute
(CS) for HB 248, Version 24-LS0768\Y, Bannister, 4/11/05, as a
work draft. There being no objection, Version Y was before the
committee.
9:22:01 AM
REPRESENTATIVE MIKE HAWKER, Alaska State Legislature, presented
HB 248, as sponsor. He explained the purpose of the bill by
paraphrasing a portion of the sponsor statement, which read:
House Bill 248 will protect law enforcement officers
from being targeted for frivolous lawsuits.
Currently, a person can request a copy of a peace
officer's Internal Affairs (IA) files through the
Freedom of Information Act.
REPRESENTATIVE HAWKER directed attention to page 1, [beginning
on] line 6 of Version Y, which read:
(a) Every person has a right to inspect a public
record in the state, including public records in
recorders' offices, except
REPRESENTATIVE HAWKER noted there are a list of exceptions
following that sentence, and the sixth exception read:
(6) records or information compiled for law
enforcement purposes, but only to the extent that the
production of the law enforcement records or
information
REPRESENTATIVE HAWKER pointed out that after the sixth
exception, there is a list "which puts a moderator on the
blanket exemption for law enforcement restrictions." Version Y
would add a moderator with [subparagraph (H)], which read as
follows:
(H) would disclose the contents of an
internal investigation or proceeding of a public
agency, except to the extent a court orders otherwise;
9:25:22 AM
REPRESENTATIVE HAWKER stated that the change to the language
would not in any way impede the right of citizens to charge
individual officers if they have truly been mistreated. He
said, "If there is an issue, an officer of the court ... can
review the internal records and determine if they are relevant
and appropriate."
9:26:35 AM
REPRESENTATIVE RAMRAS expressed his appreciation to
Representative Hawker for bringing forward the bill. He said he
would like to hear about the pressure that law enforcement
officers find themselves under "from the less savory characters
that attack them and some of the defense attorney's that go
after them."
9:27:09 AM
REPRESENTATIVE HAWKERS deferred to a police officer whose
testimony is forthcoming.
9:27:45 AM
REPRESENTATIVE GRUENBERG stated, "There's a body of law that's
growing up under the Legislative Ethics Act, and I'm wondering
if this will overturn any of that body of law."
9:28:50 AM
REPRESENTATIVE HAWKER said he doesn't know, but he suggested
that the question would be: "To what degree would ethics
information be compiled for law enforcement, rather than ...
legislative compliance?"
9:29:29 AM
REPRESENTATIVE GRUENBERG stated for the record that he does not
think that "this amendment" is intended to apply to the
Legislative Ethics Act.
9:30:43 AM
REPRESENTATIVE HAWKER, in response to a question from Vice Chair
Gatto, said [HB 248] "would not apply to those of us running for
public office," but he said he believes there is similar
legislation surfacing that would address that issue.
9:31:17 AM
REPRESENTATIVE GARDNER asked what the mechanism would be by
which somebody would find out if a member of the public had a
legitimate concern.
9:31:48 AM
REPRESENTATIVE HAWKER responded, "We're carving out,
specifically, the exception in this statute that these internal
investigations and (indisc. - overlapping voices) agency
proceedings are protecting, except to the extent that a court
orders otherwise."
9:32:27 AM
REPRESENTATIVE GRUENBERG said he doesn't see a definition of
"law enforcement purposes" in AS 40.25.100-220. He said he
would like to work with Representative Hawker to determine if a
definition is necessary.
9:33:50 AM
REPRESENTATIVE HAWKER said he would argue that the House State
Affairs Standing Committee role is to get to a public interest
finding, and the House Judiciary Standing Committee can "craft
the best language in the legal context."
9:35:19 AM
REPRESENTATIVE GRUENBERG, in response to a question from Vice
Chair Gatto regarding the language on page 2, line 5, explained
that "production of document" is a term of art in law, and the
method of discovery is called, "a motion to produce."
9:36:11 AM
REPRESENTATIVE HAWKER, in response to a question from Vice Chair
Gatto, said he is not prepared to address paragraphs in the bill
other than paragraph (6); they are only listed as existing
statute in order to propose the amendment to the bill.
9:38:05 AM
EVERETT ROBBINS, testifying on behalf of the Anchorage Police
Department Employees' Association, noted that he is a police
officer in Anchorage, Alaska. He said [Version Y] would prevent
opportunists from getting into police records to figure out
"whether or not there's a lawsuit there." He noted that a
traffic officer, over the course of a year, will probably
generate a number of complaints, most of which are going to be
unsubstantiated. However, there will be a trail of written
documentation of those complaints that someone could follow. He
said, "We're not trying to prevent those files from ever being
opened." He added that if a person thinks he/she has been
wrongly arrested or detained and sues the police department, a
judge can look at the records "in camera" to "see if those
records are pertinent to move over to trial basis." He
concluded, "We don't want to take away anybody's rights."
9:42:03 AM
JULI LUCKY, Staff to Representative Mike Hawker, Alaska State
Legislature, on behalf of Representative Hawker, sponsor,
explained that "in camera" means in [the judge's] chambers.
9:43:52 AM
MR. ROBINS, in response to a question from Representative
Gardner, offered his understanding that there are three
conclusions possible: sustained, "unsustained," or unfounded.
In response to a follow-up question from Representative Gardner,
he said an "unsustained" complaint is one that is dropped, while
an unfounded complaint is one that is baseless or false. He
reviewed the process by which a judge would make a decision in
camera.
9:46:17 AM
REPRESENTATIVE GARDNER said, "So, essentially what you're trying
to do is avoid fishing expeditions which might result in a
suit."
9:46:28 AM
MR. ROBINS answered in the affirmative.
9:46:54 AM
VICE CHAIR GATTO closed public testimony.
REPRESENTATIVE LYNN stated, "We have an obligation to do what we
can to protect the officers who try to protect us."
REPRESENTATIVE GARDNER stated that she is glad to see that there
is recourse for those individuals who may truly be wronged and
have grounds for a lawsuit.
9:47:09 AM
[HB 248 was heard and held.]
ADJOURNMENT
There being no further business before the committee, the House
State Affairs Standing Committee meeting was adjourned at
9:47:19 AM.
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