Legislature(1997 - 1998)
04/16/1998 08:05 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 16, 1998
8:05 a.m.
MEMBERS PRESENT
Representative Jeannette James, Chair
Representative Ivan Ivan, Vice Chairman
Representative Ethan Berkowitz
Representative Joe Ryan
Representative Kim Elton
Representative Mark Hodgins
MEMBERS ABSENT
Representative Al Vezey
COMMITTEE CALENDAR
* HOUSE BILL 481
"An Act relating to application for and payment of permanent fund
dividends of certain deceased individuals; and providing for an
effective date."
- MOVED CSHB 481(STA) OUT OF COMMITTEE
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: HB 481
SHORT TITLE: PERMANENT FUND DIVIDENDS FOR ESTATES
SPONSOR(S): STATE AFFAIRS
Jrn-Date Jrn-Page Action
4/03/98 2869 (H) READ THE FIRST TIME - REFERRAL(S)
4/03/98 2870 (H) STATE AFFAIRS, FINANCE
4/16/98 (H) STA AT 8:00 AM CAPITOL 102
BILL: SB 105
SHORT TITLE: ETHICS/LOBBYING/CAMPAIGN FINANCE
SPONSOR(S): RULES BY REQUEST OF LEGISLATIVE ETHICS COMMITTEE
Jrn-Date Jrn-Page Action
2/25/97 494 (S) READ THE FIRST TIME - REFERRAL(S)
2/25/97 494 (S) STATE AFFAIRS, FINANCE
3/11/97 (S) STA AT 3:30 PM BELTZ ROOM 211
3/11/97 (S) MINUTE(STA)
3/13/97 (S) STA AT 3:30 PM BELTZ ROOM 211
3/13/97 (S) MINUTE(STA)
3/18/97 (S) MINUTE(STA)
3/25/97 (S) STA AT 3:30 PM BELTZ ROOM 211
3/25/97 (S) MINUTE(STA)
3/26/97 873 (S) STA RPT CS 3DP NEW TITLE
3/26/97 873 (S) DP: GREEN, MILLER, WARD
3/26/97 873 (S) FISCAL NOTE TO SB (ADM)
3/26/97 873 (S) ZERO FISCAL NOTE TO SB (LAA)
3/26/97 873 (S) FISCAL NOTE TO CS (ADM)
4/10/97 (S) FIN AT 5:00 PM SENATE FINANCE 532
4/10/97 (S) MINUTE(FIN)
4/10/97 (S) MINUTE(FIN)
4/15/97 (S) FIN AT 8:00 AM SENATE FINANCE 532
4/15/97 (S) MINUTE(FIN)
4/16/97 (S) FIN AT 8:00 AM SENATE FINANCE 532
4/16/97 (S) MINUTE(FIN)
4/16/97 (S) MINUTE(FIN)
4/16/97 1163 (S) FIN RPT CS 2DP 5NR NEW TITLE
4/16/97 1163 (S) DP: PEARCE; DP IF AM: PHILLIPS
4/16/97 1163 (S) NR: SHARP, PARNELL, ADAMS, TORGERSON,
4/16/97 1163 (S) DONLEY
4/16/97 1163 (S) PREVIOUS ZERO FN APPLIES (LAA)
4/16/97 1163 (S) ZERO FNS TO CS (LABOR, LAW)
4/16/97 1163 (S) PREVIOUS ZERO FN APPLIES (LAA)
4/18/97 (S) RLS AT 10:45 AM FAHRENKAMP RM 203
4/18/97 (S) MINUTE(RLS)
4/18/97 1276 (S) RULES TO CALENDAR & 1NR 4/18/97
4/18/97 1279 (S) READ THE SECOND TIME
4/18/97 1279 (S) FIN CS ADOPTED UNAN CONSENT
4/18/97 1280 (S) AM NO 1 OFFERED AND WITHDRAWN
4/18/97 1281 (S) AM NO 2 FAILED Y4 N13 E3
4/18/97 1282 (S) AM NO 3 FAILED Y4 N13 E3
4/18/97 1283 (S) AMENDMENTS 4, 5 NOT OFFERED
4/18/97 1283 (S) AM NO 6 ADOPTED Y12 N5 E3
4/18/97 1285 (S) AM NO 7 FAILED Y7 N10 E3
4/18/97 1286 (S) AM NO 8 FAILED Y5 N12 E3
4/18/97 1287 (S) AM NO 9 ADOPTED Y17 N- E3
4/18/97 1291 (S) ADVANCED TO THIRD READING UNAN
CONSENT
4/18/97 1291 (S) READ THE THIRD TIME CSSB 105(FIN) AM
4/18/97 1292 (S) PASSED Y15 N2 E3
4/18/97 1292 (S) EFFECTIVE DATE(S) SAME AS PASSAGE
4/18/97 1292 (S) LINCOLN NOTICE OF RECONSIDERATION
4/21/97 1334 (S) RECON TAKEN UP - IN THIRD READING
4/21/97 1335 (S) RETURN TO SECOND FOR AM 10 UNAN
CONSENT
4/21/97 1335 (S) AM NO 10 ADOPTED Y14 N5 E1
4/21/97 1336 (S) AUTOMATICALLY IN THIRD READING
4/21/97 1337 (S) PASSED ON RECONSIDERATION Y17 N2 E1
4/21/97 1337 (S) EFFECTIVE DATE(S) SAME AS PASSAGE
4/21/97 1370 (S) TRANSMITTED TO (H)
4/22/97 1232 (H) READ THE FIRST TIME - REFERRAL(S)
4/22/97 1233 (H) STATE AFFAIRS, FINANCE
2/05/98 (H) STA AT 8:00 AM CAPITOL 102
2/05/98 (H) MINUTE(STA)
2/12/98 (H) STA AT 8:00 AM CAPITOL 102
2/12/98 (H) MINUTE(STA)
2/17/98 (H) STA AT 8:00 AM CAPITOL 102
2/17/98 (H) MINUTE(STA)
2/19/98 (H) MINUTE(STA)
2/24/98 (H) STA AT 3:00 PM CAPITOL 102
2/24/98 (H) MINUTE(STA)
2/26/98 (H) STA AT 3:00 PM CAPITOL 102
2/26/98 (H) MINUTE(STA)
3/03/98 (H) STA AT 3:00 PM CAPITOL 102
3/03/98 (H) MINUTE(STA)
3/05/98 (H) STA AT 3:00 PM CAPITOL 102
3/05/98 (H) MINUTE(STA)
3/12/98 (H) STA AT 1:00 PM CAPITOL 102
3/12/98 (H) MINUTE(STA)
3/19/98 (H) STA AT 3:00 PM CAPITOL 102
3/19/98 (H) MINUTE(STA)
3/26/98 (H) STA AT 1:00 PM CAPITOL 102
3/26/98 (H) MINUTE(STA)
4/04/98 (H) STA AT 10:00 AM CAPITOL 102
4/04/98 (H) MINUTE(STA)
4/07/98 (H) STA AT 8:00 AM CAPITOL 102
4/09/98 (H) STA AT 8:00 AM CAPITOL 102
4/09/98 (H) MINUTE(STA)
4/16/98 (H) STA AT 8:00 AM CAPITOL 102
WITNESS REGISTER
JULIE TAURIAINEN, Legislative Assistant
to Representative Gary Davis
Alaska State Legislature
Capitol Building, Room 513
Juneau, Alaska 99801
Telephone: (907) 465-4939
POSITION STATEMENT: Explained HB 481.
NANCI JONES, Director
Permanent Fund Dividend Division
Department of Revenue
P.O. Box 110460
Telephone: (907) 465-2323
POSITION STATEMENT: Provided information on HB 481.
BEN BROWN, Legislative Administrative
Assistant to Senator Kelly
Alaska State Legislature
Capitol Building, Room 101
Juneau, Alaska 99801
Telephone: (907) 465-4823
POSITION STATEMENT: Provided information on SB 105.
SUZIE BARNETT, Professional Assistant
Legislative Ethics Committee
P.O. Box 101468
Anchorage, Alaska 99510
Telephone: (907) 258-8172
POSITION STATEMENT: Available to answer questions on SB 105
NEIL SLOTNICK, Assistant
Attorney General
Commercial Section
Department of Law
P.O. Box 1103000
Juneau, Alaska 99811
Telephone: (907) 465-3600
POSITION STATEMENT: Provided information on SB 105.
ACTION NARRATIVE
TAPE 98-52, SIDE A
Number 0001
CHAIR JEANNETTE JAMES called the House State Affairs Standing
Committee meeting to order at 8:05 a.m. Members present at the
call to order were Representatives James, Ivan, Elton and Hodgins.
Representatives Berkowitz and Ryan arrived at 8:10 a.m.
HB 481 - PERMANENT FUND DIVIDENDS FOR ESTATES
Number 0001
CHAIR JAMES announced the first order of business is HB 481, "An
Act relating to application for and payment of permanent fund
dividends of certain deceased individuals; and providing for an
effective date."
Number 0006
JULIE TAURIAINEN, Legislative Assistant to Representative Gary
Davis, Alaska State Legislature, presented the bill. She said HB
481 corrects an inequity in the categories of individuals who may
apply for permanent fund dividends (PFD). One category of
individuals who have been deprived of receiving their permanent
fund, these are individuals who are eligible to receive their
permanent fund but because they died during the application period,
before applying, they do not receive their permanent fund dividend.
In other words, they died at the wrong time of the year.
MS. TAURIAINEN said permanent fund dividends are applied for
between January 2 and March 31 of the year following the year for
which the dividend applies, so you earn it the year before.
Currently regulation allows, that if an applicant applies and then
passes away before receiving their PFD, their estate may keep the
dividend. However, if a potential applicant dies within the
application period, but before applying for the PFD, their estate
is unable to file for the PFD. This creates a class of individuals
based solely on the date of their death.
Number 0018
MS. TAURIAINEN explained HB 481 fixes the problem because it allows
for estates or heirs, of individuals who are otherwise eligible but
died during the application period, to apply for the deceased's
PFD. It also adds into statute that an estate may keep a PFD of an
individual who passes away after filing but before receiving their
PFD.
MS. TAURIAINEN concluded HB 481 requires no additional funding,
however, the benefit to a family who are paying for a funeral or
medical costs would be great.
Number 0023
REPRESENTATIVE KIM ELTON indicated the class of individuals created
isn't based on their death or the date of their death. It's based
on whether or not they made the application before they died. He
said we're not discriminating against someone because they died,
it's because they didn't apply before they died when the
application period was open.
Number 0029
MS. TAURIAINEN replied there are two ways you can look at that. If
you die on January 2...
[DUE TO A MALFUNCTION, A PORTION OF THE MEETING WAS NOT RECORDED].
Number 0039
REPRESENTATIVE MARK HODGINS made a motion to adopt HCSHB 481,
version LS1716\B, Cook, 4/15/98, as a working document. There
being no objection that version was before the committee.
Number 0042
CHAIR JAMES asked Ms. Taurianinen to explain the difference.
MS. TAURIAINEN responded the difference is we're at the request of
the permanent fund. She referred to the bottom of page 1, on the
original bill, the application date. She said there was a separate
application date that went through the 31st of July which created
a problem for PFD because it was a whole new application date. So,
this falls in line with the current application date of March 31.
Then the retroactivity was taken out on what is now Section 3, it
used to say January 1, 1997, and now it's to 1998.
Number 0048
CHAIR JAMES asked if there were any objections to adopting HCSHB
481, version LS1716\B, Cook, 4/15/98. There being none, that
version was before the committee.
CHAIR JAMES noted for the record that Representatives Berkowitz and
Ryan are present.
Number 0052
NANCI JONES, Director, Permanent Fund Dividend Division, Department
of Revenue, came before the committee. She said we currently have
a provision to pay part of your dividends to 18-year-olds, who
during their lifetime, their parents did not apply for them. She
indicated they made provisions for them and also for [the
Department of] Health and Social Services (H&SS) for children that
are in their custody and seemed to fall through the cracks between
the parents and H&SS, including disabled individuals who are not
able to file for themselves.
Number 0058
REPRESENTATIVE HODGINS asked who gets those permanent funds when
you file for a dependent child or someone that's in the Division of
Family and Youth Services system. Does a child actually receive
that or is that gobbled up in the state?
MS. JONES replied no, it's put in a trust for the child.
Number 0062
REPRESENTATIVE HODGINS made a motion to move HB 481 out of
committee as amended, with individual recommendations and attached
zero fiscal note. There being no objection, CSHB 481(STA) moved
from the House State Affairs Standing Committee.
SB 105 - ETHICS/LOBBYING/CAMPAIGN FINANCE
Number 0070
CHAIR JAMES announced the next order of business is CSSB 105(FIN)
AM, "An Act relating to legislative and executive branch ethics;
relating to campaign finances for candidates for state office;
relating to the conduct and regulation of lobbyists with respect to
public officials; relating to the filing of disclosures by certain
state employees and officials; making a conforming amendment to the
definition of 'public official' for employment security statutes;
and providing for an effective date."
CHAIR JAMES noted Suzie Barnett and Mike McMullen were available to
testify. She stated there are other amendments and that she
doesn't plan to move SB 105 out until Saturday. She indicated the
Alaska Railroad hearing, regarding land between Fairbanks and
Eielson, will also be addressed.
Number 0078
REPRESENTATIVE HODGINS reminded the committee they were embroiled
in an amendment which he presented for Representative Ryan at the
last meeting.
CHAIR JAMES acknowledged they adjourned with Amendment L.8 on the
table and called a brief at-ease.
Number 0087
BEN BROWN, Legislative Administrative Assistant to Senator Kelly,
Alaska State Legislature, came before the committee. He explained
it adds a new section [Section 62].
CHAIR JAMES suggested first dealing with Amendment L.8, which has
already been amended, and then taking up the CS.
Number 0115
REPRESENTATIVE ELTON objected. He said we're expecting anybody
that makes a complaint to first make a determination of whether
it's frivolous or not. He stated there were considerable questions
raised about what the Ethics Act does now, let alone what it would
do as amended. Representative Elton said he believes we're
creating a threshold, that a lot of people considering filing
complaints may not want to step over. The other effect of this
amendment is, it's going to make the Legislative Ethics Committee
make an initial determination of whether or not a complaint is
frivolous, and they're going to have the courts looking over their
backs.
REPRESENTATIVE ELTON submitted it doesn't matter whether this is in
here or not. He said there are civil actions that can be taken
outside the Ethics Act - in the case of something that is liable or
slanderous. He believes it's something we don't need and we're
complicating the Ethics Act. It's also a dash of cold water in the
face of a lot of people who may not understand what frivolous
means.
Number 0130
MR. BROWN said the one concern he has is in Section 46, page 28,
line 11, AS 24.60.170(3). He noted this is adding to the complaint
receipt and processing process. We specifically enable the
committee to return things for frivolity:
that the complaint is frivolous on its face, that there is
insufficient credible information that can be uncovered to
warrant further investigation by the committee,
MR. BROWN indicated that's the same intent of the amendment before
us. He said he didn't know that both approaches are necessary
because there is a concern that we might almost undo what we're
doing in Section 42 because it will make Ms. Barnett uncomfortable
determining frivolity if she knows that there is a potential for a
$5,000 penalty attached. Every time frivolity is determined, it's
going to have to be done by the full committee. Mr. Brown
mentioned the other thing is, is we're not doing this for the
executive branch.
Number 0145
REPRESENTATIVE ELTON said it's not $5,000 that we're talking about,
it's $5,000 or the greater of actual damages so it could be
considerable.
The subject of the complaint may recover the greater of actual
damages or $5,000 from the person who filed the complaint.
CHAIR JAMES stated actual damages in any case should be recognized.
She indicated it would bother her if it said there aren't any
damages at all, (indisc.) still get $5,000.
REPRESENTATIVE BERKOWITZ said if it's frivolous, nothing's going to
happen, it's going to get screened out, and if there's no
jurisdiction, it's going to get screened out. So there aren't
going to be any actual damages on account of it, we're creating a
disincentive for people to make applications. He said he thinks
the protection for the legislators, against frivolous or
nonjuridical complaints, is already in this bill.
Number 0156
CHAIR JAMES agrees with Representative Elton's assumption that this
will cause people not to want to file complaints, and believes
that's the true intent of it. She said there is that argument that
every single person should be able to file every complaint that
they want to make. She also doesn't think this is necessarily
workable and believes the goal is to stop people from filing
frivolous complaints. Chair James indicated she doesn't believe
anyone would ever collect $5,000 because people would be more
serious about filing complaints if they knew, that if it was
determined to be frivolous, they wouldn't.
CHAIR JAMES said when it comes to affecting a person's life
negatively, or if there's a cost involved, there certainly ought to
be a way to address that. Going to court is always an option, but
when people plead ignorance, it's very remote to getting anything
out of it, so you're damaged and they got off-the-hook, scot-free.
When it comes to ethics, we all know what our intent is as to
whether or not it's ethical but nobody is measured on intent
regarding ethics. The whole problem she has with this issue is
that ethics is one of those areas you can't win on because it
doesn't measure your intent, it measures what you've done and
somebody else's idea of what your intent was. She said it's
contrary to common law, which common law bases our decisions of our
wrong doing on our intent. Ethics is a whole new ball game of its
own. She indicated she doesn't like it and wished the legislature
did not have an ethics committee. It's ridiculous to her that the
public would demand such a committee. However, she will try to
give them everything she can and the tools to do their job which
they have been assigned to do.
CHAIR JAMES asked Representative Ryan if he wanted to speak to
this.
REPRESENTATIVE RYAN replied no.
Number 0187
REPRESENTATIVE BERKOWITZ pointed out that it is a crime under AS
11.56.805. It's a class A misdemeanor to make a false accusation
with the Select Committee on Legislative Ethics. He said, so
that's in position, it's a class A misdemeanor but it's a class B
felony - interference with official proceedings if a person
threatens anyone with intent to affect the outcome of an official
proceeding. The criminal statutes make provision for people who
abuse this process.
CHAIR JAMES said that's absolutely true. Her own observation of
someone filing a case in court, is that you can't really take it to
small claims because in small claims that person has to agree that
they owe it. She said there's no real benefit of taking it to
court unless there's a large sum of money, and so these things go
unattended. On top of that, to determine that somebody made a
false statement, you first of all have to know that they knew that
they were making a false statement. You have to prove that they
intended to do it that way. Chair James concluded that the whole
issue is cloudy and thinks they talked about this enough and should
vote on the amendment.
Number 0201
REPRESENTATIVE ELTON stated he doesn't disagree with a lot of what
Chair James is saying, but indicated he is uncomfortable with the
definition of frivolous because it's going to be a different
definition as we go to each person at the table. He remarked we
can define false, but he's not sure we can define frivolous.
CHAIR JAMES said she would like to try. What she understands
frivolous to mean is out and about on it's own with no basis of
facts and of no need, it's extra, it's on top of everything else,
it has no purpose.
Number 0208
SUZIE BARNETT, Professional Assistant to the Legislative Ethics
Committee, testified via teleconference and asked to speak to two
things in the amendment that concern her. She said they are the
words, "or the committee lacks jurisdiction," which is a whole
different issue altogether. Those who have served on the ethics
committee can tell you that it can be a very close call as whether
an allegation falls within the ethics code or not. Ms. Barnett
said she doesn't believe the legislature truly expects the public
to have an attorney's in depth understanding of the ethics code.
For example, if a legislator embezzled funds from a company that he
or she worked for, somebody out in the public may read that and may
think that's clearly unethical behavior. However, the ethics code
doesn't address embezzlement unless state resources were used in
some way. So, should that person be potentially fined because the
committee would have to find that it lacks jurisdiction. She
mentioned that it probably wasn't a politically motivated
complaint, it was just someone in the public outraged.
SUZIE BARNETT said the second part is, just to kind of repeat what
Mr. Brown was saying, she said she believes Representative Ryan and
the committee have the same goal, and that is to be able to not
deal with frivolous complaints so that there aren't damages as
talked about. The committee put that in. She stressed that she is
very concerned that, with this amendment, there's a danger that the
committee may incorrectly create a situation that punishes the
person who felt they were filing a valid complaint. In that case,
the committee might choose to deal with all complaints in the
manner they do now, having to deal with them, the whole committee
looking at them, so that there isn't this fear of potentially
damaging someone and having the court look at it.
Number 0226
CHAIR JAMES asked if the objection is still maintained on Amendment
L.8.
REPRESENTATIVE ELTON replied yes.
CHAIR JAMES asked for a roll call vote. Representatives Hodgins
and Ryan voted in favor of the amendment. Representatives Ivan,
Berkowitz, Elton and James voted against it. Therefore Amendment
L.8 failed by a vote of 2-4.
Number 0233
REPRESENTATIVE HODGINS made a motion to move proposed committee
substitute LS0074\P, Cramer, 4/9/98, as the working document.
REPRESENTATIVE BERKOWITZ, for clarification, asked if Version P is
solely the incorporation of amendments previously accepted by this
committee.
CHAIR JAMES replied that's correct, there being no objections, that
version is before the committee. She again announced the committee
will only walk through the amendments because there will be more
amendments offered since the bill is currently being reviewed by
the leadership in the House.
Number 0257
MR. BROWN explained Version P.1 very much mirrors what we put in
the bill last week which put a moratorium on the receipt of new
complaints by the Legislative Ethics Committee in a campaign
period, the period immediately preceding an election. He said
that's the period when it's likeliest to be politicized, that a
complaint is going to be filed for the wrong reasons, that it's not
going to be possible for the committee to investigate adequately
and come up with a resolution in a fair manner to the subject.
Therefore, the subject is going to be at a political disadvantage
because of misuse of the legislative ethics system.
Page 27, line 28, following ".": Insert:
The committee shall treat a complaint concerning the conduct
of a candidate for election to state office that is pending at
the beginning of a campaign period in accordance with (p) of
this section.
Page 31. line 6:
Delete: "a new subsection"
Insert: "new subsections"
Page 31, line 21, following "." Insert:
(p) When the committee has a complaint concerning the conduct
of a candidate for state office pending before it at the
beginning of a campaign period that has not resulted in the
issuance of formal charges under (h) of this section, the
committee may proceed with its consideration of the complaint
only to the extent that the committee's actions are
confidential under this section. The committee may not,
during a campaign period, issue a dismissal order or decision
under (f) of this section, issue an opinion under (g) of this
section, or formally charge a person under (h) of this
section. If the committee has formally charged a person under
(h) of this section and the charge is still pending when a
campaign period begins, the committee shall suspend any public
hearings on the matter until after the campaign period ends.
The parties to the hearing may continue with discovery during
the campaign period. If a hearing has been completed before
the beginning of a campaign period but the committee has not
yet issued its decision, the committee may not issue the
decision until after the end of the campaign period.
Notwithstanding the suspension of public proceeding provided
for in this subsection, a candidate who is the subject of a
complaint may notify the committee in writing that the
candidate chooses to have the committee proceed with the
complaint under this section.
(q)
Page 31, line 22:
Delete: "subsection"
Insert: "section"
Number 0262
MR. BROWN stated the concern is that there are times when it's not
a matter of receiving a new complaint that the committee may find
itself being forced to act in a political way. And the case being,
release the public information concerning a complaint that had been
received before the moratorium began. He said he believes what
this will do is prevent the committee's release of public
information in a time-period similar to the moratorium dealing with
the receipt of new complaints. So, the committee would still be
able to dismiss a complaint that's confidential communication that
goes to the complainant and to the subject during this moratorium.
The committee can also adopt a resolution outlining the frivolous
investigation which is not a dismissal that's still technically a
confidential communication. He indicated all the communications
after that point are public information.
MS. BARNETT stated she hasn't received a copy of the Amendment P.1.
Number 0278
REPRESENTATIVE BERKOWITZ said, "Assuming there's an adverse ruling,
it would seem to me that the public has a right to know, it's
important information prior to an election."
MR. BROWN replied they certainly have more of a right to know that
probably than when (indisc.) the complaint has not even been
initiated. It's certainly easier to justify banning the receipt of
new complaints in the initiation of new investigations then it is
to stop the clock on ones that are already going on. But at the
same time it's a tradeoff, at the same time it's still possible to
politicize the process.
Number 0282
REPRESENTATIVE BERKOWITZ stressed that he is very sensitive to the
concern that what we're doing might be construed as any kind of
coverup. He believes if someone is found culpable by legislative
ethics, that's really important information. Representative
Berkowitz said, "There's a different argument, if there's a charge
made, and there's questions of confidentiality - which always
sounds a little intriguing that we're quicker to extend
confidentiality proceedings around ourselves than for juveniles.
But that's something else. We need to make sure that if there's a
ruling that it gets out there if it's adverse. If it's not
adverse, it seems to me that should be up to the discretion of the
subject."
MR. BROWN said the way it's written the subject, just like the
moratorium on the receipt of a new complaint, has the right to
waive this. If the committee would release good things and hold on
to bad things, it would be obvious on what they've decided. He
indicated there is no answer to Representative Berkowitz's
question. You would have to be opposed to this amendment if you
wanted to ensure that information was released as decisions were
reached by the committee. Mr. Brown stated it's a trade off on
whether delaying the release of that information serves the public
policy goal of not allowing things to become political footballs.
Number 0295
REPRESENTATIVE BERKOWITZ stated, assuming there's a complaint made
during this period, the ethics committee acts quickly on it, and
the subject is exculpated, there's no reason for any of that
information to become public. But assuming the complaint is made
that's confidential, then the ethics committee finds the legislator
or whoever's the subject of the investigation culpable, that, if
it's a legislator in particular, it's just bad luck that it came
out during a campaign season.
MR. BROWN explained the way it's written right now, when the
committee released its resolution outlining the scope of the
investigation that would be the last public communication. He said
that's a "maybe," that's definitely not a, "no there's no problem
here." That's the committee saying there is something that merits
further investigation. The way it's written, the last piece of
confidentially information, which has a way of not remaining
confidential very often is going to be something that is a question
mark. So the way this amendment is structured, although we are
stopping the release of the technically public information, the
last piece of technically confidential information that would be
released would not necessarily be to the subject's benefit.
MR. BROWN said if the committee's going to adopt a resolution
outlining the scope of its investigation that means enough of a
flag went off that they want to keep looking at it. In laymen's
terms it is probably enough for the complainant or whoever's going
to run to the press with the information, even though it's
technically confidential, to say, "The committee investigates
blank." Mr. Brown said corruption must exist, or something, so the
point with this stop thing is not necessarily to the subject's
advantage. The idea here is to prevent the committee's release of
public information from being an accessibly political act.
Number 0311
REPRESENTATIVE ELTON summarized that if the committee dismissed the
complaint, the subject of the complaint, even with this language,
would be able to waive the confidentiality provisions.
MR. BROWN replied the subject can always do that, you can't waive
somebody else's confidentiality. He said of course it would be to
your advantage to waive it if you were being exculpated.
REPRESENTATIVE ELTON stated, "Under (f) of that section, when I
first read this I was most concerned about what happens if the
complaint is dismissed, and I just wanted to make sure that the
subject can waive the confidentiality..."
MR. BROWN interjected, he said, "And then even if it's not a
dismissal, even if the subject decides that they want to have
anything released, they can waive." The subject is always able to
say, "Shine the light of public scrutiny in on this process." The
protections that the moratorium, in subsection (o) that was adopted
in Version P, that's an option that -- it's built-in so it's
assumed that you don't want the (indisc.) receive so you don't make
yourself look any guiltier by saying, "Oh, I need the moratorium."
He noted the moratorium is automatic unless you affirmatively ask
to waive your right to it.
Number 0321
REPRESENTATIVE BERKOWITZ said he is still unclear of the process.
He said there's nothing that prohibits the complainant from going
public with the complaint.
MR. BROWN asked Ms. Barnett if she wanted to answer that one.
REPRESENTATIVE ELTON believes Ms. Barnett isn't available because
she's probably at the Legislative Information Office picking up a
copy of Version P.
Number 0323
MR. BROWN continued. He said the proceeding is described as
confidential in the statute, and Suzie [Ms. Barnett] will say it's
confidential. You're not supposed to go around saying, "I filed a
complaint and here's a copy of it," however, that's a very thin
line. He said you can walk around saying, "I know Representative
so and so did this, this is unethical, someone ought to file a
complaint. If a complaint were filed, I'm sure he would be found
guilty." He assumed you probably haven't technically violated the
confidentiality provision of the statute.
Number 0327
REPRESENTATIVE ELTON noted somebody that may be a complainant can
walk around saying, "I'm going to file a complaint, that this
person did this, as soon as I legally can." He stressed, but isn't
it strange that the legislature has protected itself and can't
accept the complaint until after the election and there's nothing
that stops that from happening. Representative Elton indicated the
protection is pretty thin.
CHAIR JAMES asked are we going to condemn the reaction of public
for that, are they going to contend the entire legislature of which
that person is a part, or are they going to say, "Well that person
didn't support that idea." She indicated she doesn't see that
that's a problem when you're being general. Chair James explained
that we're trying to eliminate these kinds of things as a political
reason and it's very difficult to separate between ethical and
political because ethical becomes political and vice versa. So
what we're trying to do is make ethical as unpolitical as possible
by not having these things be a part of the 45 days before an
election.
Number 0341
REPRESENTATIVE ELTON specified the point he is trying to make is
that this gives an opportunity to somebody who wants to make a
damaging political statement. This gives them the opportunity to
do that without the subject being able to really respond by saying,
"The committee has dismissed the complaint."
CHAIR JAMES asked Representative Elton to repeat his statement.
REPRESENTATIVE ELTON repeated his statement.
Number 0348
REPRESENTATIVE BERKOWITZ made a motion to move Amendment P.1.
CHAIR JAMES called an at-ease for approximately 12 minutes to find
the missing members to establish a quorum.
CHAIR JAMES asked Ms. Barnett if she could weigh in on this
amendment.
Number 0356
MS. BARNETT replied the amendment is just in her hand for the first
time. Since she had to pick it up, she didn't get to hear the
discussion. Ms. Barnett said she couldn't jump in at this point.
REPRESENTATIVE ELTON asked Ms. Barnett about her comfort level with
the concept of Amendment P.1.
MS. BARNETT conveyed, the committee did talk about the concept and
she believes individual members of the committee would feel
uncomfortable with this, that it would be a concern. She said they
meet so often in closed meetings, now they have all these closed
periods of time when they can't accept complaints and can't issue
information. Ms. Barnett stated that they haven't had a meeting to
look through these amendments, but she does believe there will be
a level of discomfort on several members.
Number 0371
CHAIR JAMES asked for a roll call vote on conceptual Amendment P.1.
Representatives Hodgins, Ivan and James voted for the amendment.
Representatives Elton and Berkowitz voted against it. Therefore,
Amendment P.1 passed by a vote of 3-2.
Number 0376
MR. BROWN explained Amendment P.2 deals with the ban of fund-
raising by elected officials who have traveled somewhere at state
expense for that fund-raiser. The problem with the way it was
written is that the ban precluded a...
TAPE 98-52, SIDE B
Number 0004
MR. BROWN continued. That same place, within the 48 hours, and
still be able to have a fund-raising event. Especially those on
the road system near Anchorage would be penalized by that. He
indicated that wasn't the intention that was a drafting error.
Sec. 17. AS 24.60.031 is amended by adding a new subsection to
read:
(c) A legislator may not travel at state expense to a place in
which the legislator plans to hold a campaign fund raising
event if the travel occurs less than 48 hours before the event
is scheduled to begin. This subsection does not prohibit a
legislator from holding a fund raising event in a place to
which the legislator traveled at state expense if the
(1) travel to the place is completed at least 48 hours before
the event was scheduled to begin;
(2) legislator made a trip at state expense to a place,
returned from that place, and then, within 48 hours, made a
second trip to the place and the cost of the second trip was
not paid for at state expense; or
(3) travel was to the capital city immediately before the
beginning of a legislative session or from the capital city to
the legislator's home immediately after the final adjournment
of a regular or special legislative session.
Renumber the following bill sections accordingly.
Page 47, line 28:
Delete: "a new subsection"
Insert: "new subsections"
Page 47, following line 28:
Insert a new subsection to read:
(d) Except for travel to the capital city, the governor or the
lieutenant governor may not travel at state expense to a place
in which the official plans to hold a campaign fund raising
event if the travel occurs less than 48 hours before the event
is scheduled to begin. This subsection does not prohibit the
governor or the lieutenant governor from holding a campaign
fund raising event in a place to which the official traveled
at state expense if the
(1) travel to the place is completed at least 48 hours before
the event was scheduled to begin;
(2) official made a trip at state expense to a place, returned
from that place, and then, within 48 hours, made a second trip
to the place and the cost of the second trip was not paid for
at state expense.
MR. BROWN said the prohibition doesn't exist right now. It's come
up more as an issue in terms of the executive branch and concern
about travel at state expense by the chief executive and then fund-
raisers being held. He implied the same standard has been put in
place for the governor, and the governor's home is considered to be
Juneau for the purposes of the governor's term of office. Other
than that, there is the same 48-hour ban and the go, come back, and
go back again at personal expense or campaign expense exemption.
Number 0022
REPRESENTATIVE BERKOWITZ asked what's a campaign event. If someone
slips him a check, is that a campaign event.
MR. BROWN responded no.
REPRESENTATIVE BERKOWITZ asked if he goes around collecting checks
from people that's fine.
CHAIR JAMES replied, "No that's a campaign event. If somebody
accidentally gives you one, or sends you one, gives you one when
you're there - people do that all the time, but if you are making
an effort to collect them (indisc. - interrupted) depends on who
initiates it."
MR. BROWN added that we would hold that standard if an invitation
went out, or a public announcement was made, or there was a guest
list, or someone was coordinating the event.
Number 0029
REPRESENTATIVE BERKOWITZ said if he starts calling people and
asking for money that doesn't seem to rise to the level of being an
event.
MR. BROWN said he doesn't foresee that being a problem, of course
for legislators, running for legislative office, this isn't going
to happen during session anyway, this is an interim concern. For
the governor, as SB 275 is now on its way through the system, it's
a concern year-round. He implied that it's a heightened level of
concern for the governor.
Number 0037
REPRESENTATIVE ELTON expressed that his heightened concern is for
the governor and the lieutenant governor. He asked does this mean
that if they're in Anchorage on business that they cannot have
dinner with their campaign manager.
MR. BROWN replied he didn't think dinner with the campaign manager
is a fund-raising event. If the campaign manager invited ten
employees from the timber industry to sit down with the governor,
and they were told ahead of time to please bring a check, that
would be an event. He expressed the public policy goal is not to
have the governor fly to Anchorage at state expense and attend that
dinner.
REPRESENTATIVE ELTON indicated they may be discussing a fund-
raising event that they will be setting up a month later.
MR. BROWN responded saying that's a strategy, that's not a fund-
raising event. He said they didn't want to (indisc.) in that too
wide here. It was just to ban a very specific organized type of
fund-raising activity. It's a public perception thing, people will
say, "Gosh I saw this public official on TV this morning cutting a
ribbon, and I know tonight this public official is having a fund-
raiser at so and so's house, and I know that this public official
traveled to and from Anchorage - is paid by the state."
MR. BROWN implied Ms. Barnett recommended that if it were possible
to apportion the cost of your trip, say it was 50 percent business
and 50 percent campaign. He said that would be the squeaky clean
way to do it, but in terms of enforcement and advising people, it
just didn't seem that that was going to be a very workable statute.
It seemed easier to say, if it's for state expense you travel at
state expense, and if it's for campaign purposes you travel at
campaign expense.
Number 0056
REPRESENTATIVE IVAN IVAN indicated he can respect the intent of the
legislation to correct deficiencies that occurred several years
ago, but it's getting to a borderline of controlling our thinking.
He said, "The governor sitting down with his campaign manager, or
me sitting down with someone that will help me ... and now his
thoughts are going to be controlled."
CHAIR JAMES stated that she doesn't think that was the intent of
the conversation. She said she thinks the intent was to try to
define a fund-raising event and if it's still questionable, as to
what a fund-raising event is, we might want to describe what it is
and what it isn't. It's not questionable and would be easy to
define. That the questions that Representative Berkowitz had - if
somebody hands you an occasional check, when you're out on state
business, or whatever, during a period of time, when it's okay to
accept a check, that certainly is not a fund-raising event. Chair
James interpreted a fund-raising event as a place where people
come, they either pay to come, or they're invited to attend and to
bring their checkbook to an event. This could be any kind of event
where more than a certain number of people come together for that
purpose.
Number 0073
CHAIR JAMES said, "If any one of us has traveled ... and we talk to
somebody who is a campaign chairman or something, it wouldn't
necessarily happen with the legislator because the legislator is
going to be traveling within their own district. ... It's 250 miles
from one end of my district to the other and I live in one end, and
if I go down the other end - sometimes I go down there for business
and sometimes I go down there because I'm campaigning - and it's
not like buying an airplane ticket because I don't fly to get there
I get in my car and I drive. And then if it's legislative business
I turn in the mileage and any expense I had as a legislative trip.
If I'm going down there, and going to be campaigning, or having a
fund-raiser or something, then I don't do that. I don't turn that
in. And so there is a decision as to whether or not you're going
on state business or not."
CHAIR JAMES said, "But generally when you're talking about
traveling some place on state business, having a fund-raiser
happens a lot when we have fund-raisers in Anchorage and I'm in
Fairbanks. And so if I'm going to travel down there, even if I'm
traveling on fund-raising money, my campaign account is an example,
and I'm going to be there for several days, I'm going to do
legislative business too, which could be in an election year
considered to be almost campaigning too - if I'm going to be
talking to the people that I want to talk about, about future
issues (indisc.) help as to how things should be addressed. We
have many times caucuses in Anchorage, and then we also have a
fund-raiser when we have a caucus. To me the caucus is happening
because we have the fund-raiser. I'll pay my way with my campaign
account to get there. In fact, we don't usually get any
reimbursement for going to a caucus anyway because it's a political
issue. So, the only time that I would be down there on state
business is if I'm going to be there for some kind of a hearing,
some kind of a committee meeting, or something to that effect. And
if it happens to be that there's a fund-raiser scheduled at that
same time, then I either should pay for my way to get down there,
under this law, or with my campaign funds, or I should go back home
and come back again, one way or the other, or I shouldn't go to the
fund-raiser. Now that may affect some of the ways we've been doing
things in the legislature because it is true, if we happen to have
committee meetings or something and there is a fund-raiser, that
there probably are some cases in the past where I was paid to go to
Anchorage and back because of the committee. I don't know of any
specifics, but there could have been, and I don't know that that
ever happened. But it's a possibility, probably not under the
current campaign finance law where you can't do any fund-raising in
the off-year, then that might not be the case. And so I didn't go
to any -- but they had some fund-raisers in this last campaign year
for the party, I didn't go to any of them. So I know I haven't
done that. But this would make it perfectly clear, that if you're
going anywhere to attend a fund-raiser - and the only ones I could
think of would be going to Anchorage because that is where a lot of
fund-raisers are happening. You don't use state funds to get
there, and I'm perfectly comfortable with that, I think it's a good
thing to put into law."
CHAIR JAMES said, as far as the governor is concerned she believes
that is also the case. That during an election year, it can't
happen in the other three years before that, and it can't happen
under this current law because there can't be any fund-raising in
those three years. It's only in the year of the campaign that the
advantage of the governor and the lieutenant governor is (indisc.)
in their being able to travel the state on governmental business,
and have a fund-raiser everywhere they go. Chair James indicated
that is wrong in her estimation. It doesn't make it fair if the
governor can travel all over the state, having fund-raisers and
campaigning, and the challengers can't. What we're trying to do is
to make a level playing field. She believes this is a rational way
of doing it.
Number 0117
REPRESENTATIVE ELTON asked Ms. Barnett how comfortable she is now
that the Legislative Ethics Committee is going to have this kind of
oversight of the chief administrative officers of the State of
Alaska which is under AS 24.60.
MS. BARNETT replied she still doesn't have the P version of the
bill but is assuming that other section, page 47, must go under
39.50 or must appear in a different part.
MR. BROWN directed the members to page 1, line 21 of the amendment.
He said it refers you to page 47 of Version P of the bill under the
Executive Branch Ethics Act.
Number 0126
REPRESENTATIVE ELTON asked how does this effect, for example, the
Democratic Party. Every year it has a fund-raiser that's a golf
tournament in Anchorage, how would this affect participation. If
a person were in Anchorage on business, would they have to return,
and then go back assuming that part of those receipts go to the
Democratic Party and then to candidates?
MR. BROWN replied, "Right now, all this party building fund-raising
- governor's funds, House and Senate Majority fund, those are not
fund-raising events for individual candidates. This ban wouldn't
apply to those, this is not a very wide net, this net is cast
specifically for fund-raisers for individual campaigns. And the
biggest one I'd like is, it doesn't apply to campaigning it applies
to fund-raising. You can still go kiss every baby you want to, and
shake every hand you want to, and hand out a million little plastic
flags, you just can't raise money. ... So I don't think it's an
onerous intrusion upon the rights of the incumbents to continue
behaving politically, it's just targeting a very specific form of
their activity which is raising money for themselves. If they were
raising money in the off-year for themselves, they'd be violating
the Campaign Finance Act. So those have to be party fund-raisers."
CHAIR JAMES reiterated that when you are raising money for your
campaign, it doesn't seem right to have the expense of that fund-
raiser be paid for by the state, that's the issue. She emphasized,
if you get there at state expense, you better pay it back with your
campaign expense. It's that simple.
MS. BARNETT referred to Representative Elton's question. She said
she's not quite sure that it is clear in this language that it is
a fund-raising event solely for that legislator. Maybe there's a
way to clean that up a little bit more. She said she's not arguing
at all with the notion, or concept. Ms. Barnett said it could be
confusing if there was a party fund-raiser where moneys ended up in
that legislator's hand at a later point.
REPRESENTATIVE BERKOWITZ said, "When the legislator plans, I think
that's the determining phrase, if the party plans, it is something
else."
CHAIR JAMES mentioned she is also having a problem with that. She
said she is thinking of some of the fund-raisers that occurred in
the campaign year. In particular, a majority fund-raiser where
individual checks were made out to candidates. She indicated she
doesn't feel comfortable with saying that because it's a party
event.
MR. BROWN explained, under the Campaign Finance Act, those are
reportable either as contributions to the party or to your
campaign. The clarity exists in the Campaign Finance Act. He
said, "You would be planning to hold an event - if there was a
basket with your name on it at the event. If there was only a
basket that said 'House Majority Fund' at the event - you know
under the law you have no guarantee of receipt of those funds in
your personal campaign even though you might be shaking people
(indisc.). So I don't know how to go beyond the clarity of an APOC
[Alaska Public Offices Commission] has to go on, when very likely
some of those funds will end up in your campaign coffer. But
they're going through the party first, and they're reportable to
the party, and then the party has to report its donation to you,
and someone has to make that decision."
Number 0160
CHAIR JAMES reiterated that she understands the intent and that she
is not comfortable with the language as well because it's not
specific enough.
MS. BARNETT referred to 24.60.031. She said in the existing law
there is something that says a legislator or a legislative employee
may not accept money from an event held during a legislative
session. She said this language may help:
if a substantial purpose of the event is to raise money on
behalf of the member for campaign purposes
MS. BARNETT stated she is a little more comfortable with that where
it targets that person.
CHAIR JAMES said she is willing to put Amendment P.2 aside since we
will be working on it between now and Saturday to come up with
something that's more definitive.
MR. BROWN said, "I asked the drafter, 'Do we know what a fund-
raising event is,' and she said 'yes, it's a fund-raising event,'
just like you [Chair James] said. So there are times when you want
to define, and there are times when you think the language is going
to do the job itself. But I think it's -- if there's some gray
area, that's the point of concern here is what's a fund-raising
event - if it's party building, if it's a majority event. So I'm
happy to work with the drafter and actually put a definition in for
the purposes of the subsection of the Legislative Ethics Code and
the Executive Branch Ethics Act."
REPRESENTATIVE BERKOWITZ said, another thing, when you're looking
at the executive branch, not all governors call Juneau home.
MR. BROWN responded, "It's like a tax home. You have to take a
home and not have it, you can't have two. Juneau has to be your
home, it is, the governor's house is here - some governor's have
chosen not to reside in it - in a very regular basis and they might
take exception to that." He said he didn't know if it is possible
to craft a statute to enable the governor to say, "I don't want to
live in Juneau..."
CHAIR JAMES said she would venture to say that wherever the
governor lives that when he goes back and forth between Juneau and
that place, he's paid for at state expense, so the same applies.
MR. BROWN remarked that only one of them can be - he can only come
home in one direction, you can't be going home both ways. He said,
"If you have a suggestion about giving the Chief Executive the
option of declaring some other place in the capital city his or her
home for the purposes of their term office, I think it would be to
that governor's disadvantage to pick some place besides Juneau,
unless the governor's really not going to spend very much time
here. But if the governor's really going to spend (indisc.) time
here..."
REPRESENTATIVE BERKOWITZ said he spends four months of the year
here and this doesn't make Juneau his home. If he is living in
Clark for example that would be his home.
MR. BROWN said, "That's fine, but I'm going to say it's probably to
your advantage, as the governor who wants to raise money. By the
way he was the last governor who ran as an incumbent, right. So
that's the last time we dealt with this issue really since the last
two governors (indisc.) haven't run for reelection - or three. But
the issue here is, do you want to be able to come back to Lake
Clark and have unlimited fund-raisers within 48 hours, or do you
want to be able to come back to Juneau and do that. So you can
give the person the option, but they still have to pick one place."
REPRESENTATIVE BERKOWITZ said he doesn't want, by law that we
declare that Juneau is the governor's home.
REPRESENTATIVE ELTON stated that he is not totally bothered by
that.
MR. BROWN said, "For the purposes of the subsection."
REPRESENTATIVE BERKOWITZ reported that he's raised the point, he's
thrown it out there, we've chewed on it, and now he's letting it
go.
Number 0196
REPRESENTATIVE HODGINS said, "While we were pondering about the
definition of frivolous, I wonder if we should ponder about the
definition of high-centered. I think there's some important stuff
in this amendment as I pointed out earlier. My discomfort with the
language was discriminatory about my situation. If I traveled to
Anchorage from Kenai which I do quite a bit on state business the
day before a fund-raiser, I can't really, the way the existing law
is, is I cannot really accept - I have to travel on my own nickel
even it's going to be for state business if it's 48 hours. This
amendment allows me to make a round-trip the day of the thing at my
expense and then to attend a fund-raiser which I think is very
appropriate. And I would hope that we would go ahead and move this
amendment, or some portion of this amendment. I don't have any
problem on waiting until Saturday even though I detest Saturday
meetings. As long as we don't get high-centered, I'll be here.
But if we continue to get high-centered I won't be here."
MR. BROWN suggested the committee adopt the amendment now. He said
he can bring forward a definition of a fund-raising event, or we
can take this away and come back with one remembering everything
that's been discussed.
Number 0209
CHAIR JAMES announced if there's no objection, we'll just set P.2
aside and deal with it again on Saturday. She said this bill is
not leaving this committee without this provision in it.
REPRESENTATIVE BERKOWITZ said he thinks we just got off-center.
Number 0214
MR. BROWN explained Amendment P.3 deals with several small
questions that have come up. He said this is a fairly substantial
provision, but most of it deletes unnecessary language in the bill.
The first question that was raised is whether or not it was
necessary to have a reference to legislators in the disclosure
requirement for lobbyists, AS 24.45, page 9 of Version P, line 24.
(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, "And there's something that you would probably
expect to see in Amendment P.3 that's not there. You had asked me
why the identification of a legislator - the reason that's in there
is because we are requiring legislators to disclose because we're
not banning them so that does need to be in there. I was a little
scatterbrained when the question was asked of me yesterday but we
have to have the identification of the legislator, legislative
employee or public official because we're requiring disclosure,
we're not banning them, that's why that's in there. Because we
want, I would assume, to require the disclosure of..."
CHAIR JAMES interjected saying they had taken the ban out.
MR. BROWN replied right, the ban's gone.
CHAIR JAMES indicated that she thought that the ban was still
there.
MR. BROWN reiterated the ban is gone, spousal lobbying is permitted
- disclosure of the lobbying relationship has to be made to APOC.
So that's why that's still in there. He indicated he still has an
amendment to the last version of the bill that puts the ban back in
with contingency language and takes the disclosure requirement out.
He indicated he wasn't sure the committee wanted to revisit that
issue.
UNIDENTIFIED SPEAKER remarked that it's going to Finance.
MR. BROWN agreed that it would be redrafted for the Finance
Committee's consideration. He said, "I don't know if anyone will
want to move it there but."
Number 0230
MR. BROWN referred to page 10, line 23, page 11, line 5 and line
31, and then page 12, line 8 [Version P, 4/9/98]. He explained
that we're changing the reference from "nongovernmental" to
"nonlegislative." He said it was done up in the initial
prohibition on legislative or legislative employee behavior of
24.60.03(a)(2), line 13 of Version P which has already been changed
from "nongovernmental" to "nonlegislative," this goes through the
rest of the section of the ethics code and changes it similarly.
He indicated the drafter had asked him if he wanted to change it
initially, but he never got back to her.
CHAIR JAMES reiterated that this just makes it consistent
throughout.
Number 0237
REPRESENTATIVE BERKOWITZ referred to page 10, line 24, Version P.
He said he thought that they had discussed inserting E-mail.
(C) telephone or facsimile use that does not carry a special
charge;
MR. BROWN replied we did discuss that. He said, and then at the
end of the subcommittee process we determined E-mail use never
carries a special charge. It's probably subsumed under telephone
or facsimile. Mr. Brown stated, "By putting it in this specific
reference it would expand the committee's already probably fairly
significant right to investigate the context of people's E-mails.
So it doesn't afford you any more protection, if anything it would
erode your protection."
REPRESENTATIVE BERKOWITZ said he just wanted to make sure he can
reply to his mother without getting in trouble.
MR. BROWN added there's no charge for it so that should solve the
problem.
Number 0245
MR. BROWN explained Section 14, page 1 of Version P.3. He said the
committee had recommended going in and repealing and reenacting AS
24.60.030(g).
Delete all material and insert a new bill section to read:
(g) Unless required by the Uniform Rules of the Alaska State
Legislature, a legislator [OR LEGISLATIVE EMPLOYEE] may not
vote on a question [PARTICIPATE IN LEGISLATIVE,
ADMINISTRATIVE, OR POLITICAL ACTION] if the legislator [OR
LEGISLATIVE EMPLOYEE] has an equity or ownership interest in
a business, investment, real property, lease, or other
enterprise if the interest is substantial and the effect of
the action on that interest is greater than the effect on a
substantial class of persons to which the legislator [OR
LEGISLATIVE EMPLOYEE] belongs as a member of a profession,
occupation, industry, or region.
MR. BROWN mentioned that this is to prevent people from voting for
bills solely to feather their own nest, of course it's a very
common practice that you asked to be allowed not to vote either in
a committee or on the floor.
CHAIR JAMES added that you disclose your conflict.
MR. BROWN agreed. He said, "The proposed language from the
committee would have required a similar disclosure in writing
within seven days when other actions were taken such as requesting
the bill be drafted, an amendment be drafted, (indisc.) that
research was done, that a memorandum was prepared on a point of a
legal dispute, that you want a legal opinion on any of these
actions. I suppose even a memo requesting a bill be scheduled
could (indisc.) have been subsumed under this disclosure
requirement for actions that are not voting. And the reason that
P.3 substantially changes that is because that was thought just to
be too onerous. You're not really taking action unless your
voting, and to have you write a letter to the ethics committee
that's going to go to the Journal every time you have an amendment
drafted, it's just too much, and that the public process is
definitely served by having you disclosed when votes are taken."
MR. BROWN said section 14 would be amended by P.3 by shortening the
existing language as opposed to putting in this much longer
language. There would be no disclosure requirement when you have
a bill drafted because you're not taking action in the sense that
voting does. Mr. Brown reread Section 14 and concluded, "We delete
the reference to legislative employee because we don't vote. There
are numerous provisions in the statute that prevent a legislative
employee, or a legislator from taking improper action to benefit
his or her own financial interests. This is a specific provision
on voting that was put into the code, and really what I think what
the language in Amendment P.3 does is clean that up to make sure
that you know you can't vote unless the Uniform Rules mandate that
you do. And then everything up to that point is not considered
taking action to the same extent."
Number 0272
CHAIR JAMES called on Ms. Barnett. She said, "In the discussion
that we had with the Speaker, and I agree that, although the
language in the existing statute did indicate administrative or
political action, it was my assumption, and also the Speaker's,
that the only real action that we have that is effective is a vote
and that all of these other little things that we do are not
necessarily conclusive actions, they're just participation."
MS. BARNETT said she thinks that in the previous language, and what
the committee had recommended, was removing the prohibition and
putting in some disclosure requirements, so it's a policy call.
What this does, is it takes you back to a prohibition and drops the
disclosure requirements. She said she believes that the committee
felt, in reviewing this section, that it was fairly phony to say,
"You're prohibited but that everyone always has to vote," so they
preferred a more open -- at disclosure. But the bottom line is you
either prohibit or loosen it up and disclose.
CHAIR JAMES remarked you don't have to vote in a committee.
MS. BARNETT replied correct.
CHAIR JAMES said you can leave the room - which happened at the
previous committee meeting. But when you're on the Floor, if there
is a call on the House, unless you're excused, you must be there
and you must vote. She stated that's the only place where we're
forced to vote. Chair James said, "So that means still, if we're
doing any voting in committees, subcommittees, wherever, if we're
doing any voting, we may not vote unless - if we have a conflict.
So we've actually tightened it up, because now you can vote in
committee on these things, you just have to disclose."
Number 0288
REPRESENTATIVE IVAN said his situation is that he probably has a
conflict of interest everywhere he goes. He noted he belongs to
Board of Directors of the Regional Alaska Corporation [CALISTA], he
asked does that mean he can't introduce legislation as far as
resource development efforts are concerned.
CHAIR JAMES explained, if you're voting on the floor and you say
that you are going to have a conflict because it might affect you
personally, in other words you might benefit personally from your
vote on the floor, and you make that disclosure on the floor you
have to vote anyway. She said, "This one says that you can't vote,
and I don't know exactly - in your committee I know you can leave
and you can't be called back by the call of the House, you can only
come back on your own will, and so that's a little different. But
you could say you have a conflict and not vote in committee by this
piece of legislation. I think we all have a vested interest in
what we're doing. How deep does it go is that you have to have a
personal financial interest the decision on that decision - a
personal financial decision."
Number 0297
REPRESENTATIVE IVAN asked what was in the previous law or statute
before we messed with it here.
CHAIR JAMES read Section 14 (g). She said, "So in other words, if
you have more of an interest than other people do in this issue,
financially, because of your own financial situation, then you
can't participate. We're talking about participating, we're
talking about having an amendment in a committee, we're talking
about drafting a piece of legislation, we're talking about all
sorts of participation that we do that we would not be able to do
in this case without making a note to the ethics committee and
telling them we did that. And we thought that was just too far
reaching and not reasonable to expect us to do that and have it in
statute that indicated if we don't do that it's a violation. It's
just unwieldy to go that far." Chair James asked Representative
Ivan if that answered his question.
REPRESENTATIVE IVAN replied yes.
Number 0310
REPRESENTATIVE ELTON stated he is comfortable with the amendment.
He said he is putting it in terms, if we have for example an
attorney whose primary caseload might be criminal law this would
mean that that attorney, every time they had a change to the
criminal statutes that might be before the body or before a
committee, he would have to file a disclosure statement every time
they asked for an amendment to be drafted. Another example would
be an attorney who might have a primary practice insurance, during
the tort reform debate, anytime they would have had to have an
amendment drafted to the tort reform measure he would have to file
a disclosure. He explained that this takes us back to the point
where the only time that attorney would have to declare a conflict
is when a vote was taken - and that would be a verbal declaration.
CHAIR JAMES said right - which goes on the record incidently
because this (indisc.) didn't get to be put in the Journal. It had
to go on the record.
MR. BROWN said, "The problem with the way the bill had been
drafted, with all this disclosure - not only is it a flurry of
paper work to Suzie - and then back down to the Chief Clerk and the
Senate Secretary, but the whole anonymity of the legal drafting
process - that our director of Legal Services has worked very hard
to put it in place with the random letters for CSs and everything.
Throw it out the window. I mean you're disclosing every amendment,
your strategy as a legislator is revealed for the world to see as
soon as you disclose it. And you're not taking an action - you're
not really taking very much of an action, you're taking incremental
steps in the process toward an action of a vote in committee or a
vote on the floor. I understand what the committee wanted to
accomplish but I think there's a much cleaner way to do it."
Number 0323
MS. BARNETT added that it's a policy call and a prohibition versus
a disclosure. She said her only concern is that a lot of action
can be taken at a kind of administrative level and on influencing
the administration. Ms. Barnett indicated she was a little
uncomfortable pointing that out, but when you vote on a question
you don't vote over an administrative action so she guesses, once
that line goes in, it's only applicable to legislative action.
MR. BROWN said, "Suzie [Barnett] as I said, I think you know -
talking to Terry [Cramer], and tell me if I'm wrong, there are
numerous other places in the code where calling and leaning on a
director to do something for your behalf - that's threatening to
withhold action, or to take action. You know it's already banned
under the code."
MS. BARNETT replied it is in this part. She indicated she is
frantically looking through it because taking out legislative
employees really bothers her. The section Mr. Brown was referring
to only talks about legislators, so she is concerned. Ms. Barnett
stated, "I'm trying to find the level of protection, you're looking
at '030(e)' in existing code, and it only talks about legislators
and threatening and implying. And you know we've got some
highfalutin staff every once in a while that tends to lean on
people. I'm trying to make sure that they aren't allowed to do
that either. And I don't know if you and Terry had that
discussion."
MR. BROWN humorously said she [Terry] wanted to, but he leaned on
her.
MR. BROWN replied, "No, we didn't actually. If there's something
we need to address -- that we're taking out legislative employee
here, but obviously this reference Uniform Rules - it's not very
well drafted. The Uniform Rules don't govern our behavior the way
they govern legislative behavior. So if there's another place we
need to put some prohibition in on legislative employees..."
Number 0337
CHAIR JAMES interjected, she said she understands exactly what Ms.
Barnett is talking about. Especially after people have been here
for ten to twenty years, they do know a lot more than legislators
when they first arrive and they will tell you, is true. She said,
"And I remember when I was first elected and being a naive
freshman, of not really up on what was happening. And someone told
me that I should hire staff that's been here before, and I didn't.
And quite frankly I'm really pleased that I didn't. Not that I
have anything against all of the other staff - we use them too.
We'll ask them things ... and they'll help us. But I think that my
staff and I have learned together, and so we have a different
relationship than you do if you have a staff who thinks they know
more than you. And a lot of mine do know a lot more than me, but
they have different knowledge than I do and we share... So I share
your concern Suzie, I don't know that this is the place to fix it."
MS. BARNETT replied it may, in existing law, it may be possible if
we added, "a legislator or legislative employee may not directly
or," and then it goes into three subsections. The parts that apply
to legislative employees - then we'd have the hook to say, "Look
you can't go in and strong-arm people." The parts that don't
apply, voting, drafting bills, those things, providing constituent
services, things that may not directly apply to employees, well
then they won't apply. She said, "I guess I would prefer if we
amended '030(e),' the beginning line and say, a legislator or a
legislative employee may not directly, or by authorizing another to
ask on their behalf to do such and such. And of course the Uniform
Rules don't apply to them, so then we'd know that section didn't
apply at all."
Number 0353
CHAIR JAMES said we're going to be having more discussion on this
piece of legislation between now and Saturday. She said she would
be willing to revisit that issue for legislative staff.
MR. BROWN interjected, he said he made a note of that.
CHAIR JAMES continued. She stated, "Because it is a concern, ...
I just want to say this because I think it is appropriate because
when we're talking about term limits for legislators, and we had
that discussion at length - what if anything, those ten or fifteen
years of staff work have to do, and the influence that they may
have had or not, or whatever, and their positions and knowledge
that they have. Why is it that the public wants term limits, what
is it about a legislator having been here for some number of years
that they want term limits? Is it only because they want other
people to have an opportunity to run, or does it have anything to
do with how effective they are, so they've been here for a while,
or how ingrained they are, or how much power they have, or
whatever? In which case, if they have been a staff member before,
which many of them have, they come ... with much more experience
than the rest of us, and much more ability to do things, and pull
the wool over the eyes... So the whole issue of staff is a valid
one, so I think - address it in a separate way as to just exactly
what they can and can't do as far as influencing the whole process
because I agree that they do have an awful lot to do with it. And
second of all, I also agree we couldn't be doing this work down
here without them. So it's a kind of a mixed-bag. So we'll take
that into further consideration. And we've got the note down here
Suzie, and when we come back Saturday maybe we'll have some ideas
to how to fix that."
Number 0371
CHAIR JAMES said we can move on to page 14, line 31.
Delete:
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.
MR. BROWN said this revisits the committee's suggestion that
employers set work schedules so that there's some objective
standard if a complaint arises. He said this language caused a lot
of concern, it's just not reflective of the reality of the way the
legislature works and the people are not going to have nine to five
work schedules and time clocks on the door to the office. He
explained the amendment deletes the first sentence of proposed new
subsection AS 24.60.030(h). It would also delete a reference to as
described in this subsection. The new subsection [page 15, lines
2-7] would read:
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.
MR. BROWN said there's no reference to work schedules and there's
no reference to a description in this subsection, above and beyond
what those words mean on their face.
CHAIR JAMES indicated Ms. Barnett wanted this in here to provide
backup for some of the decisions they might have to make. She
said, "But sorry Suzie we just can't get this through."
MS. BARNETT joking said she hasn't been a staff person long enough,
she's just not powerful enough.
Number 0386
MR. BROWN referred to page 21 of the CS. He said, "This is a
banner day for dead people in the House State Affairs Committee.
This deletes the reference to reporting requirements for
inheritances. Right now there's some question as to whether or not
an inheritance is a gift. No one has really alleged that it
necessarily is successfully, but this would have made them
confidentially disclosable. But really the question is, is how
much influence can the dead buy... This just deletes inheritances
all together, and reletter the following subsections accordingly."
Number 0393
MR. BROWN referred to page 22, [lines 2-3]. He said this deletes
the reference at the end of the subsection that allows you to have
a JTPA (Job Training Partnership Act) or a university intern
without violating your gift requirements.
Delete:
This subsection does not permit a legislator or legislative
employee to accept a gift of services for nonlegislative
purposes.
MR. BROWN stated the concern was that language might interfere with
volunteers helping in your campaign. He said, "So if we strike it,
it certainly is not going to allow BP [British Petroleum] to pay
for a maid at your house - which is prohibited under other areas of
the code. The language was in there to make sure that no one tries
to use the allowance for volunteer services - to let them have BP
(indisc.) a maid at their house I suppose, or whatever the sensible
possible violation was. It does not weaken the gift part of the
statute at all, it just makes sure that no one reads it and gets
concerned about it I think."
CHAIR JAMES agreed that it raised a lot of concern. She said they
just didn't understand why it had to be there.
Number 0402
MR. BROWN referred to page 23, line 26. He explained we are
getting rid of a secondary reference to the inheritance because we
are no longer going to disclose those.
(5) receipt of an inheritance under AS 24.60.080(i);
Number 0404
CHAIR JAMES announced this completes the explanation of Amendment
P.3. She asked if there were any objections. There being none,
Amendment P.3 was adopted.
TAPE 98-53, SIDE A
Number 0004
[There's discussion as to where Amendment P.4 would fit into
Version P.]
CHAIR JAMES indicated she doesn't like the new amendment.
MR. BROWN said this will probably go on page 37, where Section 60
is and we would renumber the following sections accordingly.
CHAIR JAMES asked Representative Berkowitz to move his amendment.
Number 0015
REPRESENTATIVE BERKOWITZ made a motion to adopt conceptual
Amendment P.4 which relates to open meeting requirements. He said,
"It's a very simple concept, we've been trying it in the Minority
for a while and its been very successful. People come, and may
come again to our meetings, and we've been able to actually have
strategy sessions with the press there, with members of the public,
and it hasn't hurt anything. I think the whole argument about open
meetings is that it fosters public confidence in the process. And
I know, as a member of the Minority, who's never been a member of
the Majority, how distressing it is to find that the Majority
disappears behind closed doors and things get rearranged. And it
certainly doesn't do much for my confidence in the way the process
works."
CHAIR JAMES stated she could probably tell him [Representative
Berkowitz], with a good conscience that if suddenly he was to come
back next year and be in the Majority that he might have a
different attitude toward that, unless he wants to have a no
Majority-Minority system, a no caucus system. She indicated she
understands his position on this issue and much of it distresses
her as well. But having been part of the Majority certainly see
the benefits of it.
REPRESENTATIVE BERKOWITZ further explained to make it clearer you
can close caucuses if strategy is being discussed.
CHAIR JAMES said she understands, that's why we do that.
REPRESENTATIVE BERKOWITZ remarked, so am I to understand that the
majority has never discussed anything but strategy in a caucus.
CHAIR JAMES replied that's true.
UNIDENTIFIED SPEAKER said "wow."
REPRESENTATIVE ELTON said, the reason he favors this amendment is
we're applying to ourselves, the same that this legislature has
applied to every other public body in the state, and he thinks
that's only fair and just.
CHAIR JAMES asked if there were any objections to proposed
Amendment P.4.
Number 0035
REPRESENTATIVE HODGINS objected.
REPRESENTATIVE BERKOWITZ said to Representative Hodgins, "I thought
you were going to support it."
REPRESENTATIVE HODGINS asked, "What's that on page 21."
REPRESENTATIVE BERKOWITZ replied he will shift it to page 21 if
that's what it will take.
Number 0038
CHAIR JAMES asked for a roll call vote. Representatives Berkowitz
and Elton voted in support of the amendment. Representatives
Hodgins, Ivan and James voted against it. Therefore, Amendment P.4
failed by a vote of 3-2.
CHAIR JAMES mentioned she would keep the amendment since she didn't
have the time to fully read it. She indicated she didn't like the
"dark" print.
REPRESENTATIVE BERKOWITZ jokingly implied it's the light.
CHAIR JAMES mentioned she will read it because she wants to see
what the benefits are.
Number 0044
REPRESENTATIVE HODGINS referred to page 21, lines 3, 4, and part of
5 of Amendment P. He noted they discussed immediate family as a
grandparent, aunt or uncle, and finds that difficult unless they
reside in the same household. A distant aunt would then be
considered immediate family. Representative Hodgins stated he
would like to have a little discussion on whether we need sections
(4) and (5).
(4) a parent, sibling, grandparent, aunt, or uncle of the
person; and
(5) a parent, sibling, grandparent, aunt, or uncle of the
person's spouse or the person's spousal equivalent
CHAIR JAMES said she understood what he was saying and asked would
we need a qualifier.
MR. BROWN explained the current definition of immediate family. He
said this definition applies to the gifts section of the
legislative ethics statute. The current definition is immediate
family as the meaning given in AS 24.69.990.85 which are
definitions for the legislative ethics statue and includes the
grandparents, aunts and uncles of the person, and also includes the
person described in this subsection who's related to the person by
marriage. Mr. Brown asked Ms. Barnett to speak to the desirability
of requiring people to consider these somewhat distant, perhaps
geographically or residentially distant relatives of family
members.
Number 0063
MS. BARNETT said she understands Representative Hodgins concern in
this section. She said she believes he wants it broader. He wants
the largest definition of family possible because the broader the
definition the more gifts you can accept that obviously are from
family. And they aren't trying to influence you, and you don't
have to disclose them, you don't have to think about them.
MS. BARNETT stated again that she doesn't have Version P or
Amendment P.4 in front of her. But whichever of the two, the
existing one or the one that he is trying to get to, she
recommended whichever is broader.
MR. BROWN said, "If I recall correctly, the broader one is the one
that lists everyone out here, that's why we don't see any language.
So this is a permissive (indisc.) definition. These are people
that can give you gifts that are immediate family that don't
(indisc.) requirements under the gift limits of the code."
REPRESENTATIVE HODGINS stated his curiosity was, if you have a
definition in one section, does that carry over as definitions to
other sections if not explicitly stated.
CHAIR JAMES replied she doesn't believe it does. It says, in this
section immediate family means - only in this section.
Number 0077
MS. BARNETT said, to help clarify, in the other sections, for
example, in some places you want broad - acceptance of gifts, she
thinks it makes absolute sense and the public would agree. They
don't care who in your family gives you something. Ms. Barnett
said, "But when we get to contracts, for example we talk about
family members and what family members can accept, you want narrow.
You want those people with whom you actually have a contact.
That's, Representative Hodgins, I think exactly where you want to
get narrow, and where you say people that you would know what was
going on."
CHAIR JAMES asked how narrow are we there. The other thing is when
you're disclosing a conflict of yourself or your family member.
MR. BROWN pointed out that that's under proposed Section 18 of
Version P. He said, there the definition is family member, not
immediate family member, and the definition that we referred to,
Suzie, is the one that's going to go into the entire code, right.
UNIDENTIFIED SPEAKER replied Section 60.
Number 0089
REPRESENTATIVE BERKOWITZ asked why this doesn't include step
family.
CHAIR JAMES said this one doesn't say what the immediate family is.
UNIDENTIFIED SPEAKER referred to page 37, Section 60, lines 11-16.
(5) "immediate family" means
(A) the spouse or spousal equivalent of the person; or
(B) a parent, child [, PARENTS, CHILDREN], including a
stepchild and an adoptive child, and sibling [SIBLINGS] of a
person if the parent, child, or sibling resides with the
person, if financially dependent on the person, or shares a
substantial financial interest with the person;
MR. BROWN explained that's the definition applying to the entire
code, and there, there has to be financial dependence. It's much,
much, much narrower.
MS. BARNETT recommends this approach overall. She said, so that
you have broad in the gift section, narrow in the others. So that
you are aware of your family member's activities and you only have
to really deal with the ones where you would know, or you would
have knowledge.
REPRESENTATIVE HODGINS said that answers his question.
Number 0099
REPRESENTATIVE IVAN asked to have the gift section to the family
members summarized.
MR. BROWN said basically it will enable you to receive gifts from
immediate family and not violate the gift restrictions. He said,
"You can get a more than $250 gift. I guess - if a lobbyist is
your family member does that exempt you as well. Suzie, has that
come up."
MS. BARNETT replied if you are married to a lobbyist, you are
allowed to accept anything from the lobbyist.
MR. BROWN stated and you wouldn't be otherwise, but if...
CHAIR JAMES added, but if it was your brother or sister, or
somebody.
MS. BARNETT replied the family member overrides the lobbyist
prohibition.
MR. BROWN stated that everyone on this list can give you stuff that
otherwise would be a violation of the gifts code. He indicated
it's the good part of the bill.
Number 0107
REPRESENTATIVE BERKOWITZ asked if it could be expanded to include
step families.
MR. BROWN replied he thought it did for gifts.
CHAIR JAMES noted it does for gifts, but it doesn't...
REPRESENTATIVE BERKOWITZ pointed out that it refers to step child
but it doesn't refer to step parents or step grand parents.
CHAIR JAMES asked what page was that on.
MR. BROWN replied page 21 of Version P. He asked Ms. Barnett what
would the committee's feelings be on allowing other step family
members.
Number 0014
MS. BARNETT said she thinks that's a logical, common sense approach
to say step family.
CHAIR JAMES asked where would we add it.
MR. BROWN replied under (4) we would say, "a parent, sibling,
grandparent, aunt, or uncle of the person or a step parent, step
sibling, step grandparent, step aunt, or step uncle."
REPRESENTATIVE BERKOWITZ noted it also doesn't include in-laws.
MR. BROWN said it does under (5) "a parent, sibling, grandparent,
aunt, or uncle of the person's spouse or the person's spousal
equivalent." He asked, do we include step in-laws. You can either
add the step reference to (4) and (5), or only to (4). Mr. Brown
said, "And since Suzie doesn't think the committee doesn't have a
problem with it - so I'm happy to bring back whatever sort of
amendment the committee would like to see on Saturday."
CHAIR JAMES asked him to please do that.
MR. BROWN asked with just (4), or (4) and (5).
REPRESENTATIVE BERKOWITZ replied both.
MR. BROWN asked Chair James if we could allow Mr. Slotnick to
briefly address his concern about the constitutionality of the way
we've tweaked the Personnel Board stuff because it's going to be in
an amendment on Saturday. He thought this would be helpful.
REPRESENTATIVE HODGINS humorously asked if we were to allow
cousins, would that give Representative Ivan an unfair advantage.
Number 0134
NEIL SLOTNICK, Assistant Attorney General, Commercial Section,
Department of Law, came before the committee. He said he wants to
go over briefly one of the actions this committee took last week in
adopting Amendment L.1. Amendment L.1 came out of the subcommittee
that was meeting on SB 105 and concerns the Executive Branch Ethics
Act. One of the provisions that the subcommittee decided on was
that they would like to see a little more oversight of the attorney
general's settlement authority of ethics complaints under the
existing law. As it works right now, the attorney general can
dismiss an ethics complaint if he finds that it's not warranted, or
can settle it with the subject of the complaint. Under existing
law, all the attorney general has to do is file a summary of the
action taken with the Personnel Board. What the subcommittee asked
for was that the Personnel Board be granted the power of review.
What the amendment adopted last week did was to give the Personnel
Board the power to order the subject, order the complainant, and
have the attorney general appear before them, undertake a review of
the dismissal or plea bargain, if you will, and then issue a
report, and that's all noncontroversial. Then, ask me if we can
take it one step further and let all of that go public. And I
advised him, yes you can do that but you have to give the subject
a hearing because the subject has been accused of things and would
have to have a chance to clear his or her name.
Number 0145
NEIL SLOTNICK said he was a little hasty in his advice. What we
did is we drafted the provision that says, "If given a hearing, the
Personnel Board can go public," and that's not enough. Just on
common sense, that's not enough, when the Personnel Board doesn't
have to make any findings that there's substantial evidence, it can
just go public after giving a hearing. After doing a little
research he determined that's unconstitutional, in fact, our
constitution has a special Anti McCarthyism provision in it that
people have to be protected from legislative and executive hearings
and reports. What Mr. Slotnick suggested, and this is something we
can take up on Saturday, is if there's a need to let the Personnel
Board let the matter become public, that we let the court decide
because the court can make the determination, "Is there substantial
evidence to support some of the allegations." The court can make
the determination, "Is the subject's constitutional rights
protected by letting this report go public." So, he redrafted, for
our review, this provision only regarding when the matter is made
public. Mr. Slotnick said, "And the truth is, that's really not
going to be that much of a problem. Very often, when we resolve
matters in the plea bargain arena, we go public anyway, even though
we're not required to, we ask the subject to agree if you're - 'You
know we'll cut a deal with you if you will agree to make this
public.' And so often these matters are public anyway and would
only arise in the situation where the Personnel Board was
dissatisfied with the dismissal, or the plea bargain that the
attorney general entered into. So I suggest..."
Number 0164
CHAIR JAMES interjected, "Having been a member of the LB&A
[Legislative Budget and Audit Committee], ... did the auditor
discuss this at all with the (indisc.) if that is what the auditor
was wanting in this case. It doesn't seem to me like that was. We
had a situation, and it was in an executive session so I'm limited
as to what I can say about that, but the conclusion was that the
auditor wasn't even able to tell us in LB&A because of the secrecy
over a particular personnel situation. So we didn't even get to
know very much about it because of that disclosure. And the
comment by the auditor is that the lid ought not be quite so tight
when state funds are involved, particularly as we are LB&A
Committee. And so that was the issue there, and it seems to me
like this issue is different - that we have in this amendment."
MR. SLOTNICK replied he believes that's true. He said he thinks
this issue grew out of concern about just oversight of the attorney
general's action. Which he believes is what prompted the original
Senate change to the Executive Branch Ethics Act. He indicated the
legislative auditor did contact him about a situation and he sent
over a proposed amendment which is included in here to tighten up
disclosure. But the auditor did not discuss the concept of when
matters can be made public. Mr. Slotnick said he thinks
individuals have a constitutional right to privacy, and to
protection to avoid having the government so leak their name.
Number 0181
CHAIR JAMES indicated her understanding of the situation, it was
however, there are two personal cases that are out there that are
generally private. They are ones that either were dismissed by the
attorney general, or settled. In other words if there's a
settlement, there's an admission that there's a problem but it's
settled and best thought let that be the end of it as opposed to
going onto a hearing. She asked Mr. Slotnick if he was saying that
due process is not provided a totally --for the publication of a
settlement because that person's due process is short-circuited in
some way.
MR. SLOTNICK replied, "Yes, that's exactly what I'm saying. That
person has entered into a settlement, and if the settlement is
confidential, if that's a provision of the settlement, then that's
what they've bargained for. It's an understanding that their name
and these accusations against them will never be made public. And
maybe they gave up the right to defend themselves, just to save
money. For example, 'I'll pay $250 if this (indisc.) go away, but
I never did any wrong doing.' Well, that's your version and so and
so forth, that's plea bargaining is, if that's what they bargained
for. And then someone else comes along and says, 'Well, I'm going
to make this public anyway and make public these accusations
against you,' where you've never had a hearing, and an opportunity
to cross-examine witnesses against you, then I would consider that
to be a violation of due process."
MR. SLOTNICK mentioned he advised Ben [Mr. Brown] we need to give
him a hearing. But when you read this, all it says is they get a
hearing, it doesn't say they get to cross-examine witnesses...
Number 0198
CHAIR JAMES interjected, she said she understands that part of it
totally. Chair James stated, "To try to get my finger on what the
real problem is, is when there is a misuse of state funds. Which
is not necessarily all of the complaints that might be filed, it's
just one of the complaints that might be filed. And that's more of
a personnel matter than it is an ethics issue. All ethics doesn't
necessarily have to have money attached, it might in some indirect
way. But if there's been a misuse of state funds, that's more than
an ethics complaint."
CHAIR JAMES said, for example, the City of North Pole had a clerk
who admitted using the city's credit card for personal purchases
because she was able to receive a discount. And it was published
in the paper. She pointed out that was the original complaint,
then the mayor negotiated with the clerk and she reimbursed the
city. Supposedly she said, 'okay the problem's gone away.' But
the city council said it didn't go away, there was theft. So you
don't just pay the money back and go away when there is theft in a
government agency and using public funds. Then they did an audit
and come to find out that wasn't all she did so now she's in court.
Had the city council been happy with just the reimbursement that
wouldn't have become more public than that. That's a personnel
issue, and now she's going to have a court decision. But in the
mean time the paper tells it all, so she's not protected even
though she might have had an agreement.
Number 0217
CHAIR JAMES continued. She said she's not saying anything like
that would happen in state government because this was a small city
situation. However, we're only the strength of the weakest link,
and so there are those kinds of things that can happen. She
stated, "I suppose if it's a lot of funds, that it would be
something the Office of the Attorney General would decide going on
with to a hearing. If it's an insignificant thing, or maybe there
was some misunderstanding of whatever was useable (indisc.). And
we had another case like that in Fairbanks where someone was
operating on public funds and they left, or something, and they
took their vacation and paid themselves. ... And then they said,
'Wait a minute, you don't have a right to do that - so now you
thieves.' Well, come to find out the court said no, they didn't
thieve. But that had to go through that whole process, so that was
the due process part. Would we believe then, we the public, and we
the legislators, and whoever is responsible for that state funds,
that if there was an obvious intent ... to misuse government funds
that we wouldn't be doing any plea bargaining? But if it was
misuse of state funds, and it was not intended but just a mistake
in understanding or something like that, that then you could have
plea bargaining. Would that be a correct assumption? So that we
really don't have anything to worry about in this issue because
it's not made public. I guess my question is, should we have more
protection over the misuse of state funds than we currently have."
Number 0233
MR. SLOTNICK said, "To answer your question, to be absolutely
certain that there would be no plea bargaining in the situation
that you've described, I think that you'd have to be put that into
law. I can think of lots of reasons why - even such a case as
you've described, might be plea-bargained away. What, at least the
version that I am suggesting here does, is it would give an
interested party an opportunity to go into court and ask the court
to order publication of the matter."
CHAIR JAMES asked, and that will fix the whole issue.
MR. BROWN said that may be constitutional, but the interested party
is probably going to be the Anchorage Daily News, it's what this
comes down to. If the Personnel Board issues an anonymous or
pseudonymous critical report (indisc.) the attorney general and the
dismissal or resolution, unless...
CHAIR JAMES remarked we're talking about the public, we're always
talking about the media, we're not talking about Johnny on the
street, it's the media that is the public.
MR. BROWN continued. He stated it's very easy to see the Personnel
Board being able to use its bully pulpit, criticizing the attorney
general's handling of a matter to provoke a quite substantial media
response. He said he doesn't fault Neil's (indisc.).
Number 0243
CHAIR JAMES mentioned she is very sensitive to this issue because
she believes they want to serve the public in the way the public
needs to be served. She said we also know, that when we serve the
public, they some times go overboard and then people get hurt when
they really shouldn't necessarily be. She indicated it's a balance
that we want to achieve. But she doesn't know the answer because
it's beyond her scope of knowledge as to what generally happens,
that's why she's asking those questions. Chair James suggested
they talk about this more to see if this hearing issue is enough,
and whether we should do this.
MR. SLOTNICK stated the other option, of course would be to not
necessarily go this far, to not include the court provision for
going public and just keep it as is. He said he agrees with
Representative James that it's a good policy that plea bargains are
nonpublic plea bargains be avoided when there's substantial misuse
of funds. But he can easily imagine circumstances where it's in
the best interest of the state, and limited resources, and the bill
(indisc.) of enforcement funds to enter into a plea bargain. And
some times the only way you can get it is to agree to make it
nonpublic. So that will happen, particularly when there's cloudy
issues of proof, and witnesses, and you know if you're the attorney
general, you're not sure if you're going to prevail at hearing
anyway, lots of reasons.
Number 0256
CHAIR JAMES said she can also think of lots of reasons, but being
on the outside looking in, she can see the demanding public saying,
"None of those reasons count." What's in the best interest to them
is totally different from ours. She mentioned they have this
argument almost on a daily basis on what's in the best interest of
all of us and is questionable in each one of our minds. Where is
the line, and when do you want to cross it or not? She said she
will try to talk to Pat Davidson today and will report to the
committee and define what it is that she was concerned about.
MR. BROWN informed the committee that he had talked to Pat Davidson
and had an amendment drafted to put in a specific provision into
the Personnel Act, which was Amendment L.7, which we didn't take up
last week because it's probably not within a single subject to this
bill. He said, "And to effect the change she wants in the
Personnel Act, regarding the confidentiality of information about
the use of state funds - which we might have some language problems
- Mike [McMullen] thinks anyway. It may require a separate bill
that just does that, by request of LB&A or the Rules Committee."
He pointed out we've put everything possible into this bill, within
the title that we can and there are limits, so the answer may be a
separate piece of fast-track legislation.
CHAIR JAMES replied we don't need to fast-track, we can come back
with it next year. She said she thinks we've fast-tracked enough
stuff already.
CHAIR JAMES announced the committee will take Mr. Slotnick's
changes into consideration on Saturday. She indicated they will
bring SB 105 up after the Rail Road Right-of-Way hearing.
ADJOURNMENT
Number 0276
CHAIR JAMES adjourned the House State Affairs Standing Committee at
10:13 a.m.
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