Legislature(1997 - 1998)
04/04/1998 10:08 AM House STA
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE STATE AFFAIRS STANDING COMMITTEE
April 4, 1998
10:08 a.m.
MEMBERS PRESENT
Representative Jeannette James, Chair
Representative Ivan Ivan, Vice Chairman
Representative Ethan Berkowitz (via teleconference)
Representative Joe Ryan
Representative Kim Elton
MEMBERS ABSENT
Representative Mark Hodgins
Representative Al Vezey
COMMITTEE CALENDAR
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
2/19/98 (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
WITNESS REGISTER
BEN BROWN, Legislative Administrative
Assistant to Senator Tim Kelly
Alaska State Legislature
Capitol Building, Room 101
Juneau, Alaska 99801
Telephone: (907) 465-4823
POSITION STATEMENT: Testified on behalf of Senator Kelly,
sponsor of 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.
BROOKE MILES, Administrator
Regulation of Lobbying
Public Offices Commission
P.O. Box 110222
Juneau, Alaska 99811
Telephone: (907) 465-4864
POSITION STATEMENT: Provided information on SB 105.
ACTION NARRATIVE
TAPE 98-46, SIDE A
Number 0005
CHAIR JEANNETTE JAMES called the House State Affairs Standing
Committee meeting to order at 10:08 a.m. Members present at the
call to order were Representatives James, Ivan, Ryan, Elton.
Representative Berkowitz joined the meeting (via teleconference) at
10:25 a.m.
CHAIR JAMES read Speaker Phillips' note, "With the exception of the
Finance Committee, please plan to close your committee down for the
Twentieth Alaska Legislature on May 3." She noted the committee
would not meet unless there is a specific piece of legislation that
they need to address.
SB 105 - ETHICS/LOBBYING/CAMPAIGN FINANCE
Number 0012
CHAIR JAMES announced the committee will be taking up SB 105. She
asked if the proposed committee substitute for SB 105, 0-LS0074\L,
Cramer, 4/2/98, is available in the Anchorage Legislative
Information Office.
Number 0016
BEN BROWN, Legislative Administrative Assistant to Senator Tim
Kelly, Alaska State Legislature, replied he faxed the 60 pages to
Suzie Barnett. He indicated he was sure Ms. Barnett shared it with
Patty Bielawski, Special Assistant, Office of the Commissioner,
Department of Natural Resources.
CHAIR JAMES asked if anyone, other than Anchorage, was on line.
Number 0018
SUZIE BARNETT, Professional Assistant Legislative Ethics Committee,
informed Chair James they were in the process of duplicating it.
CHAIR JAMES asked Ms. Barnett if Representative Berkowitz arrives
would she please let her know.
CHAIR JAMES noted they have been working on SB 105 for six or seven
weeks in the subcommittee. She reported that issues came up that
they weren't either willing to, or couldn't agree on, so those are
brought forward as amendments. She asked Mr. Brown if he had a
list of the changes that were made.
MR. BROWN responded he has a sectional analysis that gets about
halfway through the bill, Legal Services is overworked and can't do
sectionals for bills of this size themselves, he got as far as he
could. He said, "But I realized (indisc. ) after a certain point
that if I tried to do a sectional on the Personnel Board stuff,
which we did not change in the committee substitute, because of the
amendment that changes it substantially. It would have been kind
of a bit of a misdirected effort to analyze all these changes."
Number 0034
CHAIR JAMES stated you're right. She believes, when they get
through the Personnel Board, the pages will be much fewer. She
explained, in the Executive Ethics area, there were changes made in
the Senate to this bill which would have bypassed the ethics
manager's - (indisc.) call him that - in the Department of Law and
put all the ethics concerns through the Personnel Board. She
indicated the subcommittee addressed that issue and found it to be
not physically feasible for the Personnel Board to do that job
without more staff.
CHAIR JAMES continued, "We didn't have any real evidence that what
we had going currently wasn't working and we have made it, however,
in - I believe that will be in the amendments that makes everything
go to the Personnel Board and makes it so that they've got their
nose in everything. But they won't be in the decision-making
process - in all of them in some cases, but not all of them. Those
will be showing up as amendments."
Number 0046
MR. BROWN pointed out it's actually one amendment, it's Amendment
L.1. [0-LS0074\L.1] which has seven pages, but most of what it does
is delete changes. He explained the references to the Attorney
General that have been changed in the bill to the Personnel Board,
this amendment goes through and changes all but five or six of
those references back to the Attorney General.
CHAIR JAMES asked Mr. Brown what would be the best way to go
through the proposed committee substitute.
MR. BROWN replied by adopting the proposed committee substitute and
walk through it briskly and then consider the amendments. He
indicated some of it was going to be familiar and that the
Legislative Ethics isn't that controversial. Mr. Brown reported
the changes that were made, a lot of them were in terminology.
Number 0059
REPRESENTATIVE IVAN IVAN made a motion to move proposed CSHB 105,
Version L, 4/2/98, as a working document.
Number 0061
REPRESENTATIVE JOE RYAN objected for purposes of discussion. He
asked to have the proposed committee substitute explained. He said
if it seems to solve the problem then he'll withdraw his objection.
MR. BROWN explained the bill started out at the request of the
Ethics Committee to make several changes to the Legislative Ethics
Code. Upon passage through the Senate, it was expanded to include
major changes to the Executive Branch Ethics Code, generally to
look like our code by adding a lot of the language and
requirements. Campaign finance reform provisions were added, some
of which have been superseded by the passage of other legislation.
MR. BROWN stated the House State Affairs Committee reviewed it, and
(indisc.) what parts can be taken out. There is a host of
housekeeping changes to the Legislative Ethics Code which may not
go as far as those who think it's a bad law to begin with but would
like to see them go but at the same time are necessary to clean up
the statute. Examples would include posting a (indisc.) campaign
sign in your office is technically illegal. The parking permit
from the City and Borough of Juneau is arguably an illegal benefit
or gift.
Number 0076
MR. BROWN indicated the Subcommittee for SB 105 is to consider some
of the things outside the legislative framework that was brought
forward by various legislators and the Personnel Board to make sure
the effort to (indisc.) up the executive branch Act - didn't do so
in a way that actually weakened their statute.
REPRESENTATIVE RYAN asked, in your amendments, have you addressed
SB 275 which passed the House on April 1 (relating to fund raising
by the governor, lieutenant governor and candidates).
MR. BROWN replied yes, Amendment L.5 makes sure the provisions of
law, as ensconced in SB 275 - which again differentiates between
the state legislature and governor and lieutenant governor -- the
approach taken by this bill at one point was to create a new
definition of "state office" and ban activity for candidates for
state office during the session, as you know, that met with a lot
of opposition and the upshot was that now if you're running for
governor you can raise money during the session even if you're a
legislator, if you're running for the legislature you can't. He
indicated this amendment needs to be adopted to make the Ethics Act
conform with the changes the legislature has already made in the
campaign finance statute (SB 275).
Number 0096
REPRESENTATIVE RYAN withdrew his objection.
CHAIR JAMES noted CSSB 105, Version L, 4/2/98, was before the
committee.
MR. BROWN referred to Section 1. He indicated they might not have
seen it before, it came at the recommendation of the drafter (Terry
Cramer), she noticed there was no reference to disclosing
information about one's campaign treasurer if you're running for
judicial retention.
(c) Each candidate for state office or for retention as a
justice or judge shall file the name and address of the
campaign treasurer with the commission, or submit, in
writing, the name and address of the campaign treasurer
to the director of filing with the commission, no later
than 15 days after the date of filing the declaration of
candidacy or the nominating petition...
Number 0102
REPRESENTATIVE KIM ELTON asked what about a group, or organization
that may form against a candidate for retention, would they also be
required to...
MR. BROWN interjected as a political group they would. The problem
is, and this came up before, "What if I don't file a letter and I
raise money," it would be possible for a group - that was opposed
to a judge being retained - to probably try to do it outside the
scope of the law. But there's only so much you can do by writing
the law. He indicated there's only been a few contested judicial
retention elections over the years.
REPRESENTATIVE RYAN remarked it's a rubber-stamp process. He
indicated he had no idea that these people had treasurers and
couldn't care less and doubted seriously if the majority of the
public is concerned. He said the campaign finance law just causes
us to spend a lot of money for no useful purpose other than the
newspapers and opponents trying to dig-up a small infraction so
they could make a big deal out of it during reelection. He
concluded, "We're employing people who could be doing something
useful and productive with their lives - to go through all this
foolishness - then it's a Star Chamber sort of thing, and I think
the whole thing should be dumped personally, if it were up to me
I'd vote that way in heartbeat and I'll say that in front of
television and radio."
Number 0119
CHAIR JAMES said she could agree with most everything he said,
however, they must address the bill. She shared that she
consistently votes no on the retention of judges and has run into
a lot of other people who do the same - there are more "no's" now
then there ever used to be. Judges do have campaigns to hold their
slots because she has seen them do that. She said she doesn't know
if they pay for it out of their own pockets. It seems strange for
a judge to be running a campaign or for somebody to be running a
campaign against him. There certainly is an opportunity for it to
be there and she thinks it should be reported.
Number 0134
BROOKE MILES, Administrator, Regulation of Lobbying, Public Offices
Commission, came before the committee. She said judges are
prohibited by their ethical code from engaging in campaigning.
Occasionally, such as cited with the Rabinowitz case, groups form
to oppose retention and then, usually when that happens, another
group forms to support retention. Those groups are required to
file registration concerning their treasurer right away, before
making any expenditures.
CHAIR JAMES reiterated, "Based on what you've just said, then it
isn't a candidate for state office or for retention of a justice,
a judge would only be a group then, never be the judge of
themselves."
MS. MILES said that's correct.
CHAIR JAMES stated this language might not work.
MR. BROWN said he believes what the drafter wanted to do, was to
make it a responsibility of the beneficiary of that group's
activity.
Number 0147
REPRESENTATIVE ELTON said what you're doing is making the
beneficiary actually become part of the campaign by forcing the
beneficiary to work with the group.
MR. BROWN replied he thinks it would be disingenuous to believe
that the beneficiary would not be working the group at all.
CHAIR JAMES said they need to change the procedure, to go through
the bill, if you have concerns write them down and address them
later.
Number 0161
REPRESENTATIVE ETHAN BERKOWITZ came on teleconference. He stated
he's been listening for awhile and indicated it's about as
entertaining as the subcommittee.
Number 0167
MR. BROWN referred to Sections 2 through 5. He said, "As the
subcommittee was working on this bill, the issue of whether or not
the governor should raise money during session was being bandied
about in the form of another piece of legislation which ultimately
did pass in a form that permits the governor and legislators
seeking the governor's 'house' to raise money during session. And
that allows the 90 day exemption on the ban for legislative
candidates if there's a special election. So Sections 2 through 5
of the committee substitute really are not germane anymore. ...
Amendment L.5 is going to really go through and delete quite a bit
of this, if it's the will of this body to conform with the changes
made when SB 275 passed."
MR. BROWN continued. The CS's approach is to ban fund-raising
during session for legislators and for gubernatorial candidates but
to allow fund-raising in an almost equivalent time period in the
preceding year so that you could, as long as you declared your
candidacy or (indisc.) papers to raise money, raise money from the
first of June in the preceding year. But then you have to stop at
the beginning of session. The benefit there being that you have
disclosed everything you raised within a month by the 15 of
February so people knew what (indisc.) you raised - which they're
not going to know when your raising money during session, there
won't be that public information.
Number 0186
UNIDENTIFIED SPEAKER asked Mr. Brown if he described the amendment
or did he describe the committee substitute.
MR. BROWN replied he described the CS. The amendment deletes the
CS's provisions that are in conflict with SB 275. Amendment 5 will
conform to those provisions.
Number 0189
REPRESENTATIVE ELTON indicated one of the changes does reinstitute
the possibility of raising funds in the previous year to the
election.
MR. BROWN responded yes, but does ban it during session.
REPRESENTATIVE ELTON noted it's banned right now.
MR. BROWN replied (indisc. - speaking too fast) candidates
(indisc.) SB 275 goes into effect.
Number 0192
REPRESENTATIVE ELTON asked are we talking about statewide and state
offices.
MR. BROWN replied exactly, that is a difference, that would be
right. This would allow legislators to raise money in that prior
period as well.
0194
CHAIR JAMES stated which is a change from existing law, which now
they're precluded in the off-year.
MR. BROWN replied right. An option between the two would be to
only allow gubernatorial candidates to raise money in the preceding
year, not legislative candidates.
CHAIR JAMES explained if we restricted the governor from fund-
raising during a legislative session, and any legislator that was
running for governor during a legislative session, it's a small
window to raise money for a statewide election - which takes a lot
more money than a legislative election does. It seems like that
was clamping things down too tight. Since the decision was made
with SB 275 that the governor is not restricted from raising funds
during the legislative session - he can only raise funds in the
year of the election, and anyone who's running for governor, who is
in the legislature can also then raise money. Then we probably
don't need to go back to the period in the off-election year to
allow fund-raising. She indicated it's still a small window for
the legislature - that's a decision we'll have to make.
Number 0212
REPRESENTATIVE RYAN remarked the period is too weak. For example,
he experienced that this year - he sent back as much as he was able
to keep because of the late-coming. So it's counterproductive if
you're trying to raise money. Representative Ryan said, "This is
the first I've heard of this period from July, or something, on the
previous year. It sounds like a little more reasonable way for
people to do it."
MR. BROWN referred to Section 6. He said they changed the name of
the "legislative expense" account to "public office expense term"
account (under the campaign finance law where you have to get rid
of your unused assets within 90 days within the election). So now
it can't be confused with your LAA (Legislative Affairs Agency)
account. That is important because only the disclosure of what
happens to the funds in this account is to Alaska Public Offices
Commission (APOC)...
MR. BROWN referred to Section 7. He said it just changes the name
on the statute so it's referred to correctly (public office expense
term account).
MR. BROWN said Section 8 restricts what you can do with money in a
public office expense term reserve account that you haven't put
into your public office expense term account at the end of your
term in office. (As amended by the Senate, you could have rolled
those funds over into the next campaign, which would be a
loophole). We've closed that loophole, if you put money into a
public office expense term reserve and don't put it into your
public office expense term account you'd have to give it to charity
or repay the contributor at the end of your term.
Number 0229
CHAIR JAMES asked him to repeat that again.
MR. BROWN reiterated, "You've got money (indisc.) and you run for
office, you use your assets up -- you can do a whole host of things
under 116 [AS 15.13.116], there's ten of them. One of them is
creating an account that your going to use for legislative purposes
while your in office (or municipal is another option). To prevent
negative tax consequences, you can create a public office expense
term reserve and then transfer them in there. You have to transfer
five thousand dollars for each year of your term (indisc.) on an
annual basis. And the problem was, with the creation of the
reserve account, and if I created the reserve -- if I put twenty
thousand dollars into it, never transferred any of it into my
actual public office expense term account over the course of my
term of office, the way that the bill is currently written, I could
take all twenty thousand dollars and dump it into my next campaign
at the end of four years. This is not the intent of the voters in
passing campaign finance reform. Section 8 of the bill closes that
loophole, and any money that was sitting in my public office
expense term reserve at the end of my term can only be used for
charitable donations or to repay contributors."
Number 0237
REPRESENTATIVE RYAN asked if he missed something in the last couple
years, when did the voters pass campaign finance reform.
CHAIR JAMES replied the voters didn't pass it, but they demanded
that we do it.
REPRESENTATIVE RYAN stated to put it on the ballot.
MR. BROWN went on to Section 9. He noted that it will probably be
deleted as well (by Amendment L.5). He indicated we don't have a
definition of "state office" in the campaign finance statute as we
are differentiating between governor and legislator.
REPRESENTATIVE BERKOWITZ asked to be faxed Amendment L.5.
CHAIR JAMES indicated the comment on Section 9 is self-explanatory,
the amendment is going to get rid of it.
Number 0248
MR. BROWN continued on to Section 10. He said this is the one that
raised a lot eyebrows when it was first before the full committee.
It's a conforming amendment. He referred to the memorandum from
Terry Cramer [February 13, 1998]. He said she explains why we need
to make a conforming amendment to the employment security statute
to prevent anyone, who is currently ineligible for unemployment
benefits, to remain eligible. By changing the definition of
"public official" as defined in AS 39.50.200(a), which is the
public official financial disclosure statute, we potentially
triggered unwarranted unemployment insurance benefits for some of
the upper level executive branch employees.
REPRESENTATIVE ELTON stated, to protect us, that keeps us status
quo.
MR. BROWN replied exactly.
Number 0257
MR. BROWN moved onto Section 11. He reported it adds a reference
to the Ethics Committee to the provisions of AS 24.25 which governs
the issuance of subpoenas - under one part of the Ethics Code the
Ethics Committee has the right to issue subpoenas but under another
part all subpoenas issued by committees have to be turned into by
the presiding officer. Mr. Brown said, "The committee thinks that
was an oversight when the statute was passed and they would like to
see themselves exempted from the concurrence of the president or
the speaker. The problem with concurrence being if the president
or the speaker or one of her staff is the subject to the complaint,
it would be a conflict of interest..."
REPRESENTATIVE RYAN said this blows me away, these fellows who are
appointed by the court are going to have subpoena power. He
personally objected to this.
REPRESENTATIVE ELTON stated this just clarifies the powers that
they already have.
Number 0271
MR. BROWN said Section 12 deals with the disclosure of legislative
employee spousal or spousal equivalent relationship. This adds to
the required information that must be disclosed by a lobbyist to
APOC, whether they are married to a legislator or legislative
employee or public official. At Terry Cramer's recommendation, she
also cited the definition of spousal equivalent from the public
official disclosure statute at the top of page 11 of the committee
substitute: [Beginning on page 10, line 30].
(7) the identification of a legislator, legislative employee,
or public official to whom the lobbyist is married or who is
the spousal equivalent of the lobbyist; in this paragraph,
"spousal equivalent" has the meaning given in AS 39.50.030(g).
MR. BROWN said if the ban on spousal lobbying goes back in, then
the word "legislator" on the bottom of page 10 will need to be
deleted.
REPRESENTATIVE BERKOWITZ asked is AS 39.50.030(g) new language,
because 39.50.030 is not a definitional section of the statutes.
MR. BROWN replied it's not a new definition to the committee
substitute, but it's a new definition for the bill because the bill
added spousal equivalency to what has to be disclosed under AS
39.50.
CHAIR JAMES said what Representative Berkowitz is asking is that it
says it has the meaning given under AS 39.50.030(g), [page 11, line
2].
MR. BROWN replied not just in the committee substitute that has
been there since last year he believes. By adding a new subsection
to AS 39.50.030 subsections (d), (e), (f) and (g) actually, all of
those put the lobbying disclosure requirement into the public
official disclosure Act.
Number 0289
REPRESENTATIVE BERKOWITZ said, "I'm not going to spread any
gasoline on this inferno, but that whole issue - what constitutes
a marriage is somewhat an issue these days."
REPRESENTATIVE ELTON stressed it is, essentially with using that
language, if the constitutional amendment passes there will never
be a prohibition that applies to a same-sex partner because you no
longer have the meaning that's given - if the only legal definition
of a marriage is between members of different sexes, this
prohibition would not apply to a same-sex partner.
CHAIR JAMES said no it would not apply to same-sex, it isn't
intended to in here.
MR. BROWN remarked if anything, that would...
CHAIR JAMES interjected it's not intended in here to be applying to
same-sex relationships. It's intended to have a man and a woman
relationship who are not married, that's what that means. She
indicated whether we change the constitution or not, and if the
constitution amendment passes, it will not change this.
Number 0299
REPRESENTATIVE ELTON said he's not sure he agrees with that. The
courts have issued a definition that the legislature is now trying
to change.
CHAIR JAMES said she understands that but her point is, "If it is
the final decision - is that same-sex people can be married here,
then it still applied here. If it's changed that no, they can't it
still applies, it just applies to different people, the same as
marriage does."
MR. BROWN said a lobbyist engaged in a same-sex relationship
wouldn't have to disclose, where a lobbyist engaged in a different
sexual relationship would.
CHAIR JAMES stated you're right. She indicated she wanted to move
on.
Number 0305
MR. BROWN brought up Section 13. He said this modifies the
definition of "public official" to make sure that we're not looping
in any new disclosure requirements for judicial officers or
appointed municipal officers and also upper-level employees who are
required to disclose. This will require substantial financial
disclosure from legislative staff and this is a definitional change
to conform with that. [Section 13 AS 24.45.171 is amended to
read]:
(12) "public official" or "public officer" means
(A) a public official as defined in AS 39.50.200(a) but
does not include a judicial officer or an elected or
appointed municipal officer:
(B) [,] a member of the legislature; [,] or
(C) and upper-level employee
REPRESENTATIVE RYAN said it does not include an "elected or
appointed municipal officer." He stressed an elected municipal
officer is a "public official."
CHAIR JAMES responded in this particular case, they're not
intending it to be a municipal officer. She pointed out they are
only talking about state-elected officials. (This is at the state-
level only).
Number 0318
REPRESENTATIVE ELTON asked if there was a definition for an "upper-
level employee."
MR. BROWN REPLIED yes "upper-level employee" is defined in the
disclosure statute because that's where we're forcing all the range
19s and up is basically what it is right now. The bill has not
changed remarkably in terms of the legislative staff disclosure.
REPRESENTATIVE ELTON asked if it is the equivalent of a range 19,
or is it range 19.
MR. BROWN replied "I honestly think the CS actually may have an
inconsistency in terms of the dollar amount, it's got both." He
indicated he knew it was going to get resistance in the Finance
Committee. It's not really resolved at this point.
Number 0328
MR. BROWN addressed Section 14. He said this amends it several
ways, the restrictions on legislative and legislative employee
behavior under the Ethics Code. Subsection (2), page 11, use of
public funds, this is language that is attempting to prevent the
problem of state resources being used for partisan purposes.
(2) use of public funds, facilities, equipment, services, or
another government asset or resource for a nonlegislative
purpose, for involvement in or support of or opposition to
partisan political activity, or for the private benefit of
either the legislator, legislative employee, or another
person; this paragraph does not prohibit
REPRESENTATIVE RYAN asked what the circumstance was that was so
outrageous that we have to codify it.
CHAIR JAMES replied Jerry Sanders sent out a thank-you to the
people who attended the straw-poll that they had for the president
in 1996. He used his staff and computer and paid the postage out
of his legislative account as opposed to paying it himself.
MR. BROWN referred to subsection (2) (A), page 11, line 23:
limited use of state property and resources for personal
purposes if the use does not interfere with the performance of
public duties and either the cost or value related to the use
is nominal or the legislator or legislative employee
reimburses the state for the cost of the use;
MR. BROWN pointed out the use still cannot interfere with the
performance of public duties, that's one standard. This still
doesn't allow for reimbursement for activity that does interfere
with the performance of public duties.
Number 0352
REPRESENTATIVE RYAN asked has the court of law ruled on the six
thousand dollars we get for office expense is part of some kind of
public money, or did the Ethics Committee make this determination.
MR. BROWN said he thinks Legislative Council did in response to
ambiguity about the status of those funds.
Number 0358
CHAIR JAMES explained you can take it as an accountable plan or a
nonaccountable plan in which case you pay taxes on it. The
difference between an accountable plan and nonaccountable plan are
simply to comply to the Internal Revenue Service (IRS) code. The
IRS code says that if you have an account with your employer that
pays certain things - or reimburses you for certain expenses, that
are valid deductible expenses for your occupation then you don't
have to report them to IRS because your employer is doing the
sieving for you. And they're being sure what you pay is a valid
expense. If you don't want them to do that - the other problem
about it is if you do it that way then it's public and anybody can
see how you spent that money. If you don't want them to see how
you spent the money, you want to take the money - they just take
the taxes off the top, then you can spend it for anything you want.
But you have to report the money that you got to IRS as income and
deduct all those things that are valid expenses.
CHAIR JAMES concluded they may not all be valid, you may want to
spend it for other things. That's the only difference between the
two, otherwise, it is your money. If you don't spend it all,
they'll give it to you, take the taxes out and give you a refund.
REPRESENTATIVE RYAN said, "I was trying to figure out what various
groups have made determinations of what and how money that I earn
in this occupation is to be spent, because personally, it's none of
your bloody business what I do with money I earn."
CHAIR JAMES reiterated his options.
MR. BROWN remarked if no one took the accountable allowance plan,
we would probably save money in paper and record keeping - that
would put the burden on you the legislature. All that paper going
back and forth, all the bills being paid by Legislative Affairs
Agency. It must serve some (indisc.) purpose because we're paying
them to do it. He believes it would probably be easier if they
didn't do it that way.
MR. BROWN referred to subsection (C), page 11. He said it's ok to
use a telephone nominally, you're not going to get in trouble for
using the fax the same way.
(C) telephone or facsimile use that does not carry a special
charge;
MR. BROWN said "We did not add the word e-Mail because e-Mail use
never carries a special charge..."
CHAIR JAMES stated, "But there is the point we did discuss which is
probably pretty important to put on the record now, is that whether
or not E-mail is accessible to the public in your E-mail, and I
think we kind of decided that it was, so knowing that, I would
suggest that people don't do any personal E-mail."
Number 0388
REPRESENTATIVE RYAN said he has a personal computer, which he owns
- he paid for out of his pocket, he also has a private "IPO"
account which he pays for. The only thing he uses is he shares his
fax line to access his account. ... He said, "My personal stuff is
my personal stuff."
CHAIR JAMES remarked she has the same situation, but is absolutely
sure that she is not putting anything she doesn't want anybody to
see on her computer.
[Subsection (D) remarks were not recorded due to tape ending]:
the legislative council, notwithstanding AS 24.05.190, from
designating a public facility for use by legislators and
legislative employees for health or fitness purposes; when the
council designates a facility to be used by legislators and
legislative employees for health or fitness purposes, it shall
adopt guidelines governing access to and use of the facility;
the guidelines may establish times in which use of the
facility is limited to specific groups; or
MS. BARNETT noted they only received Amendment 1 and Amendment 2.
TAPE 98-46, SIDE B
Number 0001
MR. BROWN moved onto subsection (E) [page 12]. He said this is a
provision that is mirrored on (E) on page 13. This is a special
level of protection for legislators in their private offices - it's
not for staff. There may be times when you use your office in the
capital, as long as that doesn't interfere with your public duties
and there's no cost, other than minimal wear and tear - you can
have the lights on and sit at the desk. You would probably
reimburse if there is a cost for paper or some other small charge,
you're pretty much allowed to do what you want to do in there. He
indicated this was in response to a concern by a member who thought
- the way the code is currently written, if you were in your office
every night, after hours, not talking to your staff, doing stuff,
someone can say you shouldn't be doing that. Subsection (E) reads:
(E) a legislator from using the legislator's private office in
the capital city during a legislative session, and for the
five days immediately before and the five days immediately
after a legislative session, for nongovernmental purposes if
the use does not interfere with the performance of public
duties and if there is no cost to the state for the use of the
space and equipment, other than utility costs and minimal wear
and tear, or the legislator promptly reimburses the state for
the cost; an office is considered a legislator's private
office under this subparagraph if it is the primary space in
the capital city reserved for use by the legislator, whether
or not it is shared with others;
Number 0013
CHAIR JAMES remarked you can't do it in offices in your district,
just when you're in the capital.
MR. BROWN replied the presumption being that, if you're a
professional, you probably have a plant set up for that where
you're from, you can't bring that plant with you to Juneau.
Number 0017
CHAIR JAMES said that's not absolutely true. In Fairbanks for
example - and I don't know whom all you have in Anchorage who
doesn't live in Anchorage, at the Anchorage Legislative Information
Office, when Senator Lincoln and Representative Nicholia come to
Fairbanks, if they have any personal things to do, they're going to
have to do it from their office or out on the street...
TAPE 98-47, SIDE A
Number 0001
CHAIR JAMES continued, she said everybody thinks about things in
their own terms and not about what other people's terms are. She
wanted to be sure that they haven't aced them out in any way.
MR. BROWN indicated he originally drafted it to apply to interim
offices, but the Ethics Committee staff wasn't really comfortable
with that.
CHAIR JAMES stressed she didn't think anybody would do that in an
interim office unless they were someone who didn't live in the town
where their interim office was. As long as they reimburse for
phone calls, or if they used the Xerox copier, or whatever and kept
track of that personal use, it doesn't seem to be a problem.
Number 0008
CHAIR JAMES said she could see that they might even want to meet
with somebody in their office that isn't legislative related.
There are some people who have an office in Anchorage, and people
come from various places out in the rural areas. She suggested
they think about that before they are finished to see if they
covered those people sufficiently.
Number 0014
REPRESENTATIVE BERKOWITZ indicated he had a question but deferred
to Representative Ryan because he might get to his point.
Number 0016
REPRESENTATIVE RYAN said he is getting more and more offended as he
goes through this document. Somebody on the Ethics Committee
presupposes a citizen legislator - has twenty-four thousand dollars
a year they pay us - at some outrageous amount of money that we can
just live in a lap of luxury, and that we're really up to no good
and we're trying to connive every possible way we can to do
something that's going to harm somebody and we're going to write
this stuff so we caulk every crack in the floor there possibly is
so that God knows what a person's suppose to do by the time they
get through trying to dance to this tune. He indicated he hasn't
seen in his life a document that is more ridiculous than this
thing.
CHAIR JAMES said, "You and Representative Berkowitz probably have
a lot in common here." She asked Representative Berkowitz if he
had a question.
REPRESENTATIVE BERKOWITZ replied not anymore. [This response
caused an uproar of laughter].
Number 0024
REPRESENTATIVE ELTON asked if this particular section, or part of
this section, creates attention with the earlier language in this
section that bans the use of things in the office for partisan
benefit.
MR. BROWN replied the earlier section doesn't, he asked
Representative Elton if he was looking at subsection (5) (E), the
bottom of page 12 and the top of page 13. He said that's where we
say, "use or authorize the use of state funds for the purpose of
political fund raising or campaigning" this paragraph does not
prohibit a legislator from using "a legislator's private office in
the capital city." He indicated that same exemption is there -
perhaps it creates attention, but he didn't think it creates an
insurmountable one. Mr. Brown stated this paragraph doesn't
prohibit, and that's where the (a), (b), (c), (d) all comes down
from, so this is an exemption to that ban that is put out in (2) AS
24.60.(indisc.) we say you can't, then we go down and say but, but,
but, but.
Number 0034
REPRESENTATIVE ELTON emphasized the ban controls, but doesn't.
MR. BROWN replied but there are limits to its control, the idea
being that it is suppose to be (indisc.) as possible. To just
allow for what people are reasonably going to do, not anything they
shouldn't do.
CHAIR JAMES indicated she was trying to figure out where the
instructions are that have this litany of things, telling us that
we can or can't do. She referred to page 9, line 13 (D) [work
draft 0-LS0074\L page 13, line 9 (D)]. She read the following:
(D) storing or maintaining, consistent with (b) of this
section, election campaign records in a legislator's office;
or
CHAIR JAMES asked is that saying they can or can't do that.
MR. BROWN replied does not prohibit. He reiterated it does not
prohibit storing or maintaining, consistent with subsection (b.
Number 0051
MS. BARNETT read subsection (b) to the committee:
(b) A legislative employee may not on government time assist
in political party or candidate activities campaigning or
fund-raising. A legislator may not require an employee to
perform an act in violation of this subsection.
MR. BROWN explained even though you can keep your campaign records
there, you can't have your staff using them to raise money.
Number 0057
MS. BARNETT stated the intent of this subsection, or that
reference, is just to allow you to have all your APOC records that
actually - you need to sometimes bring up-to-date or refile things
during session. This is a reference to your APOC filing.
Number 0063
MR. BROWN addressed Section 15. He said this deals with using
state-funded publications to (indisc.) if you will. He pointed out
it doesn't apply to the office account - this prohibition on using
state funds that (indisc.) a mailing 90 days before an election,
which one of the candidates...
Number 0068
REPRESENTATIVE BERKOWITZ said before they get too far down the
road, he proposed a suggestion that might alleviate the concern for
a lot of the Bush legislators in the prior section, instead of
"capital city," how about "in a place other than the legislator's
primary residence."
CHAIR JAMES indicated she would write that down and when they get
back to amendments they will address that.
MR. BROWN said Section 15 is meant to prevent the use of leadership
or committee funds for political mass mailings 90 days before an
election. It also specifies that it's not just state elections
that you shouldn't be doing this for. It says running for
telephone cooperative or anything. He stressed it doesn't apply to
your office account.
(2) a mass mailing is considered to be political if it is from
or about a legislator, legislative employee, or another person
who is a candidate for election or reelection to the
legislature or another federal, state, or municipal office or
to the board of an electric or telephone cooperative.
Number 0079
REPRESENTATIVE RYAN asked if we're talking about leadership funds
are we talking about money that was privately raised.
MR. BROWN replied no, we're talking about funds available to the
Rules Committee Chairman, the Speaker, or the President or any
presiding officer.
CHAIR JAMES jokingly said the State Affairs Chairman doesn't have
any.
Number 0085
MR. BROWN said Section 16 specifies that the ban on putting
political material about public buildings includes fund-raising
notices. But, loops in the exemption that, if it's a sign for
election that's been concluded (indisc.) for nostalgic purposes
it's all right.
REPRESENTATIVE RYAN asked, "Are you saying - during the last
municipal election in Fairbanks, there was a ruling from ... that
someone puts up a sign, that's a contribution."
MR. BROWN reported this has nothing to do with that, the commission
overturned the staff opinion on that. He reiterated this has to do
with putting up signs in state buildings and it's to prevent
legislators and legislative employees from having a notice that
they're going to have a fund-raiser on their desk in their
legislative office. But it exempts you, if you have a sign from
your last race that you had mounted and framed, that's art.
Number 0099
MR. BROWN explained Section 17. He said disclosure is required by
the Ethics Code - currently there's no deadline in this subsection
(indisc.) to be made. There's also a dual requirement, for example
you might be appointed by the presiding officer to a panel that
requires board membership disclosure, even though the appointment
is published in the Journal, you still would have to report it to
the committee and it would be published in the Journal again. This
prevents redundant disclosure.
CHAIR JAMES asked what journal are we talking about.
MR. BROWN replied the House and Senate Legislative Journal.
Number 0107
MR. BROWN stated Section 18 deals with the conflict of interest it
changes what is in current statute, a prohibition on taking
legislative, administrative or (indisc.) political action, to
disclosing it. Currently it's a practice to disclose a conflict in
committee or on the floor and ask that you don't have to vote and
be told that you do most often. But there isn't really a provision
to disclose a conflict when you have a bill drafted, or when you
get a legal opinion on something, or when you even perhaps call
(indisc.) on regulations, or whatever. This basically deletes an
unenforceable prohibition and replaces it with an enforceable and
livable disclosure requirement. You still would have to disclose
orally in committee or on the floor, but if it's something you're
doing that doesn't allow for oral disclosure, you have seven days
to write a note to the committee saying, "I drafted a bill which
may..."
CHAIR JAMES said she can't believe this.
REPRESENTATIVE RYAN said give me a break.
Number 0118
REPRESENTATIVE BERKOWITZ informed the State Affairs Committee
members that Ms. Barnett left the Anchorage LIO.
MR. BROWN reiterated currently it's technically prohibited to that
you take actions that you have an interest in without disclosing
them. But there's no mechanism for disclosure for actions that
taken in the informal context of telephoning and requesting a bill
to be drafted or calling and saying, "I think these regulations are
horrible." The committee's solution to that, which really hasn't
met with much conflict or much resistance up to this point, is that
you just have to disclose it orally on the floor or in committee,
but if you do something that invokes the conflict of interest in a
place you can't get up and say you're doing it, you just jot a note
to the Ethics Committee saying, "By the way, I had a bill drafted
that could substantially benefit me financially, I assume you would
put in the disclosure, that's not why I did it." It's the
committee's idea and I hope that Ms. Barnett will come back and
speak to us.
CHAIR JAMES asked where did we get the technically prohibited.
MR. BROWN replied that was the committee's interpretation that led
to that. He said, "This is something that was in the bill both
times as it was introduced at the request of the Ethics Committee."
REPRESENTATIVE RYAN asked what section and chapter he was referring
to.
MR. BROWN responded Section 18, it amends AS 24.60.030(g).
CHAIR JAMES directed the committee to circle that section and
indicated they would come back to it.
Number 0133
MR. BROWN said Section 19 relates to government time, this would
add a new section which is in response to some questions in ethics
cases that have been heard over the last few years that this has a
nebulous standard of when people [legislative staff] are working or
not working and it makes it hard to decide whether or not they were
working when they did what they did. This (indisc.) the committee
will consider a work schedule as set by the immediate supervisor --
that has the effect of encouraging legislators or supervisory
legislative aids to set work schedules for others in the office.
He concluded, "When you draw lines, that just makes it easier to
know whether you're inside or out them. I think it's uncommon, I
don't think most offices have a weekly calendar where they've been
-- people popping in and out."
(h) In this section, when determining whether an employee is
considered to be performing a task on government time, the
committee shall consider the employee's work schedule as set
by the employee's immediate supervisor. An employee who
engages in political campaign activities other than incidental
campaign activities as described in this subsection during the
employee's work day shall take leave for the period of
campaigning. Political campaign activities while on
government time are permissible if the activities are part of
the normal legislative duties of the employee, including
answering telephone calls and handling incoming
correspondence.
Number 0144
REPRESENTATIVE RYAN said, "My staff can't do this, that and this
period, because if I'm out on the campaign trail and I'm going to
speak at a luncheon or a constituent group and I have a staff
member come along to remind me of things and to carry things which
are part of their duty, and then someone files an ethics complaint
against me for having my staff with me when I was campaigning I
don't want to hear it. That is nothing but a net full of holes for
these guys in the Ethics Committee to sit there all day long and
take potshots at you and I don't want to hear it. My staff can do
this or can't do that, anything other than that is helping me
campaign and they're prohibited from doing it ... I don't use
legislative staff to campaign and I can live with that. But this
wide-open deal here where no matter what anybody does - and we're
setting hours, holy mackerel, you're going to be getting complaints
until you can't see straight, you're not going to be able to do
anything. Ben [Brown], this is ridiculous, we're talking about --
we have to assume that human beings have some kind of moral ethical
standards. This document assumes you have absolutely nothing that
you leave a slime trail when you go along the ground. I'm not
going to support this thing for five seconds and I'm not about to
give any group of people appointed by the chief justice, whoever
does this kind of power over my life. Who in the ... are these
people that they are so morally - sitting so high that they cannot
possibly be doing anything wrong and they can sit on all this kind
of judgement on you. It's bologna."
Number 0158
REPRESENTATIVE ELTON said he can understand the frustration of
Representative Ryan. He pointed out this is a clarifying section,
the Ethics Committee already has jurisdiction over - if a complaint
is filed. He believes that the question is not whether or not this
section is appropriate or not, it clarifies the role of the Ethics
Committee. He indicated Representative Ryan's frustration maybe
with the role of the Ethics Committee.
CHAIR JAMES said she understands Representative Ryan's concern. Do
we want to put that in that the supervisor - in other words, does
this require her to have to have a work schedule for her employees?
She said she is not going to be taking the time nor ask her staff
(whose in charge of her staff) to have a work schedule particularly
when they're in session. Staff work so many hours anyway that she
can allow them to go out and do personal things during the middle
of the day. Chair James doesn't believe requiring them to figure
out what the work schedule is the answer.
MR. BROWN replied it doesn't require you to, it encourages you to.
Your work schedule could be, "My staff works eight hours a day."
CHAIR JAMES stressed her staff works whenever she wants them to.
Number 0187
MR. BROWN remarked the idea is that you're setting some standards
as opposed to not discussing it at all. He believes that is what
this intended to encourage, not 9:00 a.m. to 5:00 p.m., not only an
hour for lunch - it has to be between noon and one, it can be
whatever you want - you can put a comp. [compensation] time into
effect...
CHAIR JAMES said she has to write this down then.
MR. BROWN replied if you don't write it down, they're saying when
a complaint comes up, there's not going to be an (indisc.) standard
for them measure what is alleged against. That's all this is
trying to do, it's trying to point out that whenever you say,
"Well, I do what the policy (indisc.) and my staff abides by it,"
it's going to be easier for you to defend yourself against a
complaint. ... If you don't have rules and somebody is accusing you
of breaking them, then you have to prove to us what the rules were
that you weren't breaking.
Number 0193
MR. BROWN pointed out the last two sentences refer to political
activities. This isn't meant to affect organization of social
functions this is really meant to get to making sure people aren't
doing a little bit of campaigning.
CHAIR JAMES said she doesn't think that they need to have
documentation of work time. As long as they work their hours that
they need to work she did see why it made any difference when they
do it.
Number 0199
MS. BARNETT said, "Just to clarify a little bit, there is no
requirement for a written document, when people call and ask me for
informal advice concerning campaign activities because they want to
participate in campaigns and they are legislative employees, this
is when I recommend to them that they put something in writing so
that if they happen to go to a campaign activity between - not
during a lunch hour necessarily, but at 3:00 in the afternoon,
that's probably going to illicit a complaint from the other camp.
They're going to see a legislative employee at a political event
during the middle of a normal workday. If in fact you, at the
office, had something in writing or an agreement then the committee
can come to you, as the supervisor - as the boss and say, 'Was this
approved time off and did they work their full time?' It doesn't
necessarily have to be in writing but at least there would be, as
Ben [Brown] said, you would pay attention for those activities. It
could be in writing or it could be an agreement that every
afternoon between 3:00 and 4:00 the employee gets to leave." She
believes it's expanding language versus limiting language.
CHAIR JAMES said as a good example is every Friday at noon is a
Republican luncheon and one of her staff attends with her (but,
that's the day she's not working). She asked, "What do I have to
do, write them an excuse and say you're excused from 11:30 to 1:30
or 2:00 to the Republican lunch and you'll make up your time..."
Chair James noted her staff works more than the required hours, she
said she didn't know why she would have to do that.
MS. BARNETT said Representative Berkowitz just said he doesn't
allow his staff to go to Republican luncheons. In response she
said, "This is actually the goal in any of this language in this
section is to protect the legislators. When you have staff at
campaign functions, and I can tell you after four years of being on
this job, the other camp will call me, they will ask whether your
staff was on leave or not. So what this is saying is not that you
have to have something in writing but be prepared to be able to
show or tell us, if a complaint is filed, that they were on leave.
What you just said to me Representative James, you would be able to
obviously write a note saying, 'Yes, my staff takes a long lunch,
but they go to community council meetings every Thursday night and
so this is how it's worked out.' It would just be an agreement
that you have. So, anything you told me, I didn't have a problem
with."
Number 0233
REPRESENTATIVE RYAN noted the Employee Handbook tells employees
that they are on call seven days a week, twenty-four hours a day
and they serve at the pleasure of the legislature who hired them to
assist that legislator in the job that he or she does.
REPRESENTATIVE RYAN said during the off - noncampaign season, which
in this respect I can say is really that's not an appropriate term
because if you're a legislator you're probably campaigning every
day of the year for two years. ... He asked, "How do I know if I am
out during some time when there is a campaign being run - and I'm
a declared candidate and I need my staff to be with me to assist me
in certain things, I'm open for a shot anytime that I've got my
staff helping me campaign. If my staff is, during government time,
at a fund-raiser in the middle of the afternoon, yes, that's
obvious. But there are too many subtleties, there are too many
other times where you're going places, you're talking with
constituents, and you're doing the sort of things you do as a
legislator that you require your staff to be with you. And it's
going to be - the other side's going to take the shot anyway. That
and one other thing, the basic premise of an English common law in
America jurisprudence is you are innocent until such time you are
proven guilty when you're accused of some kind of criminal
activity. And I don't assume that this is a civil case, that the
ethics has, I assume that this has some kind of criminal nature so
why do I have to come before this body and prove (indisc.).
They're making the choice let them prove that I did it."
Number 0250
CHAIR JAMES asked Ms. Barnett what the next step is after receiving
a list of complaints.
MS. BARNETT replied if a complaint is filed with the Ethics
Committee their first step is just to make sure they have
jurisdiction over the allegations. If they have jurisdiction and
the complaint is properly filed and properly notarized, then their
next step is to adopt a resolution defining the scope of
investigation and at that point then they would initiate an
investigation and Ms. Barnett would come to you, you would have
already seen the complaint, and talk to you and your staff and put
together an investigative report and come back before the
committee.
Number 0259
CHAIR JAMES asked in your investigative report, if there's no
written documentation to prove that it was "innocent," would you
assume it was "guilty."
MS. BARNETT replied no, no there would not be that assumption. She
said, "I can tell you one thing is that I think that the committee
- you can imagine, again this is your committee, but that they do
need to have - try and have some lines and again this is
protective. ... This is more of a recommendation that when somebody
reads through this law they see this and they think if I've got my
staff out campaigning, I really should document their time - they
should document their time. That's probably best I can say about
this, but it's up to you folks."
Number 0266
MR. BROWN said the bottom line in writing is turn in leave slips.
CHAIR JAMES asked are you talking about a leave slip to take time
off without pay.
MR. BROWN responded no, paid leave or whatever, you can do leave
without pay or paid leave.
Number 0271
REPRESENTATIVE BERKOWITZ said he thinks they're creating a "tempest
in a teapot." If someone complained about a staffer doing
unauthorized work during a lunch hour or something - Ms. Barnett
would call up and you'd say, "Well, yes but Patrick was working all
weekend and he just took an hour to do something here and there."
That pretty much would be the end of the story.
MS. BARNETT pointed out there are two levels, one on an "informal
basis" that scenario could occur. If in fact someone filed a
"formal complaint" we would formally go through that same process
and the end of the story would be - that statement from the
representative would go forward to the committee and the committee
would make a judgement at that time. She deferred the question to
him since he serves on the committee.
Number 0279
REPRESENTATIVE ELTON responded he probably can't answer it any
better than Ms. Barnett who has been doing this for four years now.
He said he thinks one of the things that they're getting trapped in
here is they're looking at this as what are the prohibitions. He
believes one of the best services of the Ethics Committee is
helping people figure out what's allowed. Most of the work of the
Ethics Committee never gets to the committee, most of the work of
the Ethics Committee is done by Mr. Barnett who fields all kinds of
phone calls and is giving guidance - some of that guidance is based
upon what's written in the Ethics Code, some of that guidance is
based upon what the Ethics Committee has found over its ten year
history. A lot of the work of the Ethics Committee and the Ethics
staff isn't to try and figure out how to zing people and how to get
them, most of the effort is dealing with people to let them know
what's allowed and what's not allowed. That's why when you have
these provisions in the Ethics Code, that are somewhat muddy, or
somewhat unspecific, it hinders that effort in letting people know
what's allowed. Representative Elton didn't think anybody wants to
say to Representative Ryan's staff, you can't do this.
Number 0295
REPRESENTATIVE RYAN said he understood what Representative Elton
was saying and appreciates that. He indicated his problem is all
the stuff that they codify he has two choices, he can go to civil
litigation or he can file a criminal complaint. He said, "This is
a horse of a different color, I had some people appointed by this
guy across the street that our (indisc.) behind them, but tell me
how I have to conduct myself, and I don't find that is part of the
American system."
CHAIR JAMES remarked it's not totally true what you're saying.
What we're doing is we're authorizing them, so were the
legislature, they work for us and we in this document are telling
them what their rules are. What we're determining here is not what
they're going to do by what we're going to tell them to do.
CHAIR JAMES asked Ms. Barnett if staff is working on a campaign on
a Saturday, when they could be doing regular business on Saturday
is a question.
Number 0309
MS. BARNETT replied, "No, I don't think it's a question.
Representative James, I do understand how they are expected to work
any hour, any day, but 7.5 hours per day has to be devoted to
legislative business, how you work that out - it can easily be
worked out. ... They put in 7.5 hours Monday through Friday, it's
now Saturday, they get to do what they want."
CHAIR JAMES pointed out there may be a week as an example that they
haven't put in 7.5 hours a day for five days and they will be
making it up. She stated she doesn't intend to dock them for not
working for 7.5 hours for five days.
MS. BARNETT reported, unfortunately you are now into a personnel
issue because they actually do have to do that, it's when we go
above that 7.5. You're outside of ethics you're into personnel
comp. [compensation] time - those issues, and we don't touch those
issues. We make the assumption that there's 37.5 hours worked in
a week.
MR. BROWN said Section 20 makes conforming amendments to the
Legislative Ethics law governing fund-raising during a session.
Fund-raising is banned during a session, or did for everyone,
except for the governor in the campaign finance statute.
Legislators are banned from raising money during a session as an
ethics matter. This section of the bill puts in the 90 day
exemption which is needed to prevent special session or special
election from not being able to have adequate fund-raising
capacity.
MR. BROWN indicated when they take up Amendment L.5 they will
probably go through and change the references to state office to
state legislature which will prevent it being an ethical violation
of a sitting legislator running for governor raising money during
a session.
Number 0335
CHAIR JAMES said if we were in a special session in July and
August, and the primary election in August, this exemption allows
us because it's within 90 days of an election that we can fund-
raise during the special session.
MR. BROWN replied yes, you've already got accelerated reporting
going on to a commission.
REPRESENTATIVE RYAN noted the governor might call a special session
in an election year. You having to go to a special session, and
your opponent is allowed to raise money in the campaign and you're
stuck.
CHAIR JAMES replied that's not going to happen as long as it's
within 90 day from the election. The same thing is true after the
primary.
Number 0346
REPRESENTATIVE BERKOWITZ referred to line 27, [subsection (2)],
"accepting money from an event held," he asked why that language is
in there. He indicated money doesn't always come from an event.
however, this paragraph does not prohibit a legislator from
accepting money from an event held during the 90 days
immediately preceding an election in which the legislator is
a candidate for state office; or
CHAIR JAMES replied anybody gives you any money it's an event,
right.
REPRESENTATIVE BERKOWITZ responded, "I celebrate, but it's not
necessarily an event."
Number 0351
CHAIR JAMES pointed out subsection (1) says you can "solicit or
accept a contribution or a promise or a pledge," and if there's an
event during that 90 days you can keep that too because it may be
some of your campaign people are out there having an event while
you're busy in the legislature.
Number 0355
REPRESENTATIVE ELTON said he thinks the purpose for this language,
and for subparagraph (2), is essentially - if the Democratic Party
is holding an event or if some other group is holding an event and
money is raised at that event, then it's into your campaign.
Subparagraph (1) covers the solicitation and the acceptance of a
campaign contribution that wouldn't be from an event.
Number 0361
REPRESENTATIVE IVAN asked Mr. Brown to summarize Section 20.
MR. BROWN stated it makes two changes. The first change the
committee wanted - currently if the House was gavelled out but the
Senate was in session, you could have a fund-raiser as a
representative, which is not really the intent of banning session
fund-raising. So this makes it that either house is in session,
the ban is in effect, you can't raise money during session. It
also allows you to raise money or take money from an event if it's
90 days before the election you're a candidate in. The reason is
it wouldn't be fair to have the governor be able to call a special
session - and you'll have a fund-raiser planned and will have to
cancel. It's not fair to limit people's rights, that's when they
need the money most acutely right before the election.
Number 0370
CHAIR JAMES said under the recent campaign finance reform about 90
days before the primary, without a special session, is all the time
you have to raise the money.
MR. BROWN referred to Section 21. He said, "This allows the Ethics
Committee to defer consideration of a complaint that deals with
human rights issues to the - until the Human Rights Commission has
had a chance to look at it. It's pretty simple. It prevents dual
(indisc.)."
CHAIR JAMES stressed, "I'll tell you what that's going to do, we
just had that bill in this committee and it takes them 12 to 18
months to get to looking at something. I don't think we want to be
able to defer any decision by the Ethics [Committee] until they
finish that."
MR. BROWN replied they may, they don't have to, they may. He asked
Ms. Barnett how many complaints has she had that allege only
violations of human rights.
MS. BARNETT replied normally we don't go into this, but none.
Number 0380
CHAIR JAMES asked then why do we need it.
MS. BARNETT pointed out the purpose of this is just to say when
it's a human rights issue it should go first to the Human Rights
Commission who deals with their code all the time. Then it can
come back to us. She stated it's a logical step.
Number 0387
MR. BROWN referred to Section 22. He said this deals with
contracts and leases, it takes out some of the restrictions that
existed before and puts in new restrictions. It increases the
annual amount of the lease that requires disclosure of $5,000. It
doesn't require that things be only let through competitive bidding
because there are some things that are just as good as competitive
bidding in the State Procurement Code. He indicated that was too
restrictive a reference to the kind of contracts that could be
permitted. And it adds the requirement that family member
contracts have to be disclosed. He mentioned it's something the
committee wanted and it's a compromise in their eyes, it gives a
little, it takes a little.
Number 0395
MR. BROWN explained Section 23 adds a new subsection that clarifies
that there are certain state (indisc.) benefit programs that aren't
subject to disclosure and that the Ethics Committee publishes a
list and that just makes it clear that you don't have to disclose
it (indisc.) program. It also clarifies that a grant - the result
in a contract is a contract. He asked Ms. Barnett if that was
right.
(c) This section does not apply to a contract or lease issued
under a state program or loan that is subject to AS 24.60.050.
A grant that results in a contract but that is not subject to
AS.60.050 is subject to this section.
MS. BARNETT replied correct.
CHAIR JAMES remarked a grant that results in a contract is also
subject to this.
Number 0401
REPRESENTATIVE RYAN offered an observation. He said almost all the
money that goes out to do anything in Alaska comes from the state
because of the oil money and the various taxes that are collected.
We are citizen legislators, we have to make a living we can't
survive on 24...
TAPE 98-48
Number 0001
REPRESENTATIVE RYAN continued. He said her profession does not
allow her to trot out her list of clients off to APOC because these
people have a right of privacy, they can't do that. What are we
going to do, narrow this pool down to people who panhandle on the
corner to make a living? This is what we're generally doing, we're
taking all kinds of professional people and everybody else and
excluding because they can't. He indicated lawyers, physicians and
psychiatrists are not going to trot out their list of clients - so
here we come down the line until we get to a bunch of people who
have no one with whom they're doing any business of any consequence
that they can come and tell you. This is what the net result of
this is. Representative Ryan asked is this the type of individual
you want to serve in this body.
CHAIR JAMES asked Mr. Brown if he could respond to that.
Number 0009
MR. BROWN replied you either prohibit or disclose are the two
options in this type of law and we're trying to go the disclosure
route. This particular section is allowing larger amounts of money
to go undisclosed, it's specifying certain programs - never trigger
the disclosure requirement because they're available to everyone
(which saves paperwork and time and money for everyone). If you
(indisc.) know that your family member is getting a contract over
$5,000 the public has the right to have that disclosed. He stated
he can't think of many contracts, or leases, that invoke us into
the confidentiality requirement as medical professional
relationships or legal professional relationships. Mr. Brown
believes that's a different matter, that's a matter for whether or
not legislative financial disclosure or public official disclosure
should include that level of detail. He believes the commission
makes allowance for that. You don't need to know every person who
went to see Doctor (indisc.) and he's a psychiatrist in any given
year do you.
Number 0020
MS. MILES pointed out the conflict of interest law that requires
disclosure of a clients name does have a exemption for
psychiatrists, for medical doctors and certain (indisc.- noise)
client.
CHAIR JAMES asked about attorneys and accountants.
REPRESENTATIVE BERKOWITZ responded attorneys have to disclose and
he found that very troubling because people can come to him with
confidentiality and he has to breach that confidentiality for what
he finds is minimal state interest.
CHAIR JAMES said, as an accountant, she doesn't release the names
of whom she works for. She indicated she did make a list when she
first filed to run for office (it was a much smaller list because
she sold her larger business). There are so many reports, one
report is over $100 and another is over a $1,000, because she has
a corporation that is the property management, she has to list her
tenants that pay over $1,000 and has to report that. Chair James
remarked it's a nuisance.
Number 0037
REPRESENTATIVE BERKOWITZ suggested an amendment that allowed, if
there is proprietary or privileged information connected with the
relationship, that relationship need not be disclosed except in the
most general terms.
MR. BROWN believes the commission would probably be more
comfortable if it would be disclosed and maintained confidentially.
REPRESENTATIVE BERKOWITZ explained his problem as an attorney is he
has an ethical obligation to advocate zealously on behalf of his
clients and to protect their concerns. When they raise a concern,
if he had a client that said, "My name should not be disclosed,"
he's boxed in. He doesn't believe he should be required to divulge
the name of a third party who has no connection to the state. If
he generally says he's an attorney and he has clients that ought to
suffice.
MR. BROWN noted they wouldn't be able to cover that section of the
bill today due to time. He stated they can look at that in AS
39.50, specification of what has to be disclosed.
Number 0052
CHAIR JAMES mentioned both in campaign finance reform and in
legislative ethics we narrow the field of who can do this job, and
that certainly is not in the best interest of the public. With
campaign finance, unless you're an incumbent or unless you have a
lot of your own money, it's just not going to be possible for you
to do it, she thinks that was a big mistake. On ethics as well,
she believes they could limit the requirement to disclose, if there
is a special relationship between you and that person, but just
because you're their accountant, attorney, or their professional in
any way - and they paid you money for that - it's just a business
relationship it seems this shouldn't have to be disclosed.
CHAIR JAMES continued. She said down the road it might be
necessary for you to put the type of cases you handled will be
affected by this piece of legislation, (as was mentioned before)
you can do that on the floor, in committee and you also have to do
it in writing if you ask for a bill to be filed or in an amendment
she suspects. On what Representative Ryan was saying, there has to
be a presumption that we all have a conflict of interest. What it
amounts to is you have to put your life as an open book, and even
if you do there's no guarantee that people aren't going to pick on
you anyway, even after you've told them everything. She wants to
make sure they give the tools to the Ethics Committee that it makes
it easier for them to do their job in protecting us not destroying
us. From her perspective she believes they should err on the part
of substantiating that we're not being unethical and that their
goal shouldn't be to find out that we are but that we are not and
that's a message we need to get to the public. However, when we
put another line in the statute it's one more thing we have to do,
the more you put in the more things are going to get missed and
then somebody's going to be in trouble for missing something.
Number 0097
MR. BROWN moved to Section 24. He said this enables the Ethics
Committee to refrain from publishing details of a (indisc.)
disclosure that otherwise would be public information. This is in
response to a payment made by the Violent Crime Compensation Board
to someone covered under the code, perhaps a legislator, and they
decided that wasn't going to serve a public interest it was going
to harm that person's right to privacy being a victim of a crime
more than it was going to benefit the public's right to know that
he or she got a compensatory payment.
A legislator or legislative employee who believes that
disclosure of participation in a program would be an invasion
of the participant's right to privacy under the state
constitution may request the committee to keep the disclosure
confidential. If the committee finds that publication would
constitute an invasion of privacy, the committee shall publish
only the fact that a person has participated in the program
and the amount of benefit that the unnamed person received.
The committee shall maintain the disclosure of the name of the
person as confidential and may only use the disclosure in a
proceeding under AS 24.60.170. If the disclosure becomes part
of the record of a proceeding under AS 26.60.170, the
disclosure may be made public as provided in that section.
MR. BROWN stated this new language is almost the same thing they
could put into the public official and legislative financial
disclosure statutes relating to APOC.
Number 0110
REPRESENTATIVE BERKOWITZ stressed the right to privacy doesn't flow
wholly from the state constitution's expressed section, Section 22,
there are also federal constitutional interpretations that show a
right to privacy and those interpretations could also flow through
other parts of the state constitution as well as through statutory
interpretation. He suggested they remove this section which limits
the right to privacy from the state constitution.
MR. BROWN asked just refer to the participants right to privacy.
REPRESENTATIVE BERKOWITZ replied yes.
Number 0117
MR. BROWN referred to Section 25. He said this specifies that in
protective orders issued by the committee you are going to get in
trouble if you violate it. This has to do with protecting people
who are joint subjects of a complaint, for example, "I can't
violate the other subject's right to privacy for whatever my
motivation might be, that I'm angry, that we got in trouble, that
I think it was his or her fault more than mine, that I'm so bitter
I have nothing to loose." He noted there is no reason he should
jeopardize that person's right to privacy under ethics proceedings,
so this enables the committee to issue protective orders for that
purpose.
(b) A legislator or legislative employee who is the subject of
a complaint under AS 24.60.170 violates this section if the
legislator or legislative employee violates a protective order
issued under AS 24.60.170(i).
REPRESENTATIVE RYAN asked if they were talking about his right to
employ or not employ any of his staff.
MR. BROWN replied this has nothing to do with employment, it has to
do with talking about an ethics investigation.
Number 0128
MR. BROWN said Section 26 adds a reference to the deadline, which
has been moved to the 15 of February elsewhere in the bill (AS
24.60.105). He indicated that's probably something they're going
to revisit in the next committee of referral because there are
those who think that's too early for everything to be produced on
an annual basis.
(b) A legislator or legislative employee required to make a
disclosure under this section shall make a disclosure by the
date set under AS 24.60.105 of the legislator's or legislative
employee's close economic associations then in existence.
Number 0133
MR. BROWN reported Section 27 relates to spousal and lobbyist
disclosure. He said since the ban on spousal lobbying was taken
out of the bill, this adds a new subsection which requires spouses
of legislators or legislative employees or their spousal
equivalents to disclose lobbying relationships. And if a new
client gets picked up you have 48 hours to notify about the new
client.
(d) When making a disclosure under (a) of this section
concerning a relationship with a lobbyist to whom the
legislator or legislative employee is married or who is the
legislator's or legislative employee's spousal equivalent, the
legislator or legislative employee shall also disclose the
name and address of each employer of the lobbyist and the
total monetary value received by the lobbyist from the
lobbyist's employer. The legislator or legislative employee
shall report changes in the employer of the spouse or spousal
equivalent with 48 hours after the change. In this
subsection, "employer of the lobbyist" means the person from
whom the lobbyist received amounts or things in value for
engaging in lobbying on behalf of the person.
MR. BROWN said this will be amended if they put the ban back in by
taking out the reference to legislators because if they're banned
they can't disclose this.
REPRESENTATIVE RYAN asked, "If I were to have my staff send a
letter out to everybody in my district that held a fishing license
and congratulate them on doing something, would I have a problem."
MS. BARNETT replied no, this does not relate to partisan
activities.
CHAIR JAMES indicated SB 105 will be brought up again on Tuesday.
ADJOURNMENT
CHAIR JAMES adjourned the House State Affairs Standing Committee at
12:00 p.m.
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