Legislature(2019 - 2020)BARNES 124
03/28/2019 10:30 AM Senate SELECT COMMITTEE ON LEGISLATIVE ETHICS
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ALASKA STATE LEGISLATURE
SELECT COMMITTEE ON LEGISLATIVE ETHICS
MARCH 28, 2019
FULL COMMITTEE
10:32:34 AM
1. CALL THE MEETING TO ORDER
Joyce Anderson called the meeting to order, welcomed
committee members and guests, and directed Jerry Anderson
to conduct roll call.
Roll call
Senator John Coghill
Senator Tom Begich
Representative Sara Hannan
Representative DeLena Johnson
Skip Cook
Conner Thomas
Joyce Anderson
Deb Fancher
Lee Holmes
Quorum present.
Others
Alternate Member Senator Elvi Gray-Jackson
Alternate Member Senator David Wilson
Dan Wayne, Legislative Legal
Jacqui Yeagle, Administrative Assistant
Jerry Anderson, Administrator
2. WELCOME NEW HOUSE LEGISLATORS
Joyce Anderson welcomed new House members Representative
DeLena Johnson and Representative Sara Hannan, alternate
member for Representative Louise Stutes.
Senator John Coghill added that Representative Chris Tuck
was also in the audience.
3. APPROVAL OF AGENDA
Senator Tom Begich moved to approve the agenda.
No objection.
The agenda was approved.
4. APPROVAL OF MINUTES
a. January 31, 2019 Full Committee Minutes
Skip Cook moved to approve the minutes.
Dan Wayne offered two amendments:
• Page six: Replace the sentence, "Dan Wayne replied he did
not think the rule would necessarily interpret it that
way" with Dan Wayne replied he did not think the rule
would necessarily be interpreted that way
• Page eight: Replace the phrase, "If a legislator looks at
a bill ?" with the phrase, "If a legislator looks at
requesting a draft of a bill
Joyce Anderson offered an amendment to page five: Replace
the phrase, "advocate for a bill a during meeting" with
the phrase, "advocate for a bill during a meeting.
Joyce Anderson reviewed the amendments.
Joyce Anderson asked Skip Cook if he wanted to amend his
motion. Skip Cook responded that as the maker of the
motion, he had no objection to the amendments.
Joyce Anderson asked if there were objections to approving
the minutes as amended.
No objection.
5. PUBLIC COMMENT
No public comment.
6. ELECTION OF HOUSE COMMITTEE CHAIR AND VICE-CHAIR FOR
2019-2020
Joyce Anderson said that the chair and vice chair positions
are limited to the public members of the committee.
Joyce Anderson explained that at the January 31, 2019
meeting, the committee elected a Senate Subcommittee chair
and vice chair. Joyce Anderson was elected chair of the
Senate Subcommittee, and by statute, chair of the Full
Committee in 2019. Joyce Anderson added that Deb Fancher
was elected Senate Subcommittee vice chair.
Joyce Anderson explained that at the January 31, 2019
meeting, the committee had not been able to elect a chair
of the House Subcommittee.
Joyce Anderson opened nominations for chair of the House
Subcommittee, adding that the person elected will serve as
chair of the Full Committee next year. Skip Cook nominated
Lee Holmes chair of the House Subcommittee and Conner
Thomas vice chair of the House Subcommittee.
There were no other nominations.
Joyce Anderson directed Jerry Anderson to conduct a roll
call vote.
Jerry Anderson conducted a roll call vote for Lee Holmes as
chair of the House Subcommittee and Conner Thomas as vice
chair of the House Subcommittee.
Roll Call
Deb Fancher Y
Lee Holmes Y
Representative DeLena Johnson Y
Representative Sara Hannan Y
Skip Cook Y
Conner Thomas Y
Joyce Anderson Y
By a vote of 7-0, Lee Holmes was elected chair of the House
Subcommittee and Conner Thomas was elected vice chair of
the House Subcommittee.
Joyce Anderson announced that Lee Holmes would chair the
House Subcommittee at the House Subcommittee meeting
scheduled for 1:00 p.m. that day. Joyce Anderson offered
Lee Holmes her congratulations.
Joyce Anderson asked that the public members introduce
themselves to the new legislators in attendance at the
meeting.
Deb Fancher said that she is a retired educator, a
chemistry teacher, who grew up in rural Alaska and has
lived in Anchorage for the last 30 years.
Conner Thomas said that he has lived and worked as an
attorney in Nome for the last 40 years. He has served on
the Ethics Committee for 20 years.
Skip Cook said he was born and raised in Fairbanks. He
practiced law for 43 years and is now retired. He has been
on the Ethics Committee for 21 years.
Lee Holmes said he is a mechanical engineer based in
Anchorage. He has lived in Alaska for 36 years, currently
residing mostly in Fairbanks. He has been on the Ethics
Committee for a couple of years. Lee Holmes added that the
Ethics Committee has a vacancy for an alternate public
member and commented that it would be great to have
somebody from southeast Alaska on the committee.
Joyce Anderson was the former administrator of the Ethics
Committee from 2001 until 2015 and therefore has
substantial institutional knowledge. She has been on the
committee for a couple of years; this is her first time as
chair.
Joyce Anderson asked if any of the legislators wished to
introduce themselves.
Representative Sara Hannan said that like Deb Fancher, she
is a retired educator. She grew up in Anchorage and moved
to Juneau where she spent 20 years in the classroom
teaching social studies. She said that she brings the mind
of an educator to the legislature, where there is endless
homework and opportunities to learn every day.
7. ADVISORY OPINIONS
a. AO 19-02
Joyce Anderson introduced Advisory Opinion 19-02 and asked
Dan Wayne to summarize the 18 answers contained within.
Dan Wayne summarized the questions addressed in the
Advisory Opinion.
Senator Tom Begich left the meeting at 10:58 a.m.
Skip Cook recommended changing the beginning of the
sentence that answers question two on page eight from, "No.
If the bill will ?" be amended to read, "No, not if the
bill will ?" so that the answer begins with a full
sentence.
Joyce Anderson recommended for consistency that the answer
to question three begin with the word "Yes."
Senator Tom Begich returned to the meeting.
Senator John Coghill left the meeting.
Skip Cook noted a singular/plural conflict in question 7b,
which requires legislators who have a conflict of
interest to declare itand suggested changing it to
which requires a legislator who has a conflict of interest
to declare it."
Dan Wayne addressed question 17 and drew the committee's
attention to the example in the draft Advisory Opinion that
refers to a commercial guide.
There was discussion among the committee members and Dan
Wayne about whether draft Advisory Opinion 19-02 conflicts
with Advisory Opinion 19-01 or Advisory Opinion 18-05.
Joyce Anderson directed Dan Wayne to review the advisory
opinions and report his findings to the committee.
Extensive discussion about whether the legislator and
commercial guide referenced in question 17 were the same
person and whether or not the commercial guide was self-
employed.
Senator Tom Begich exited the meeting.
Jerry Anderson informed the committee that Chad Hutchison,
the person who drafted the questions, was in the audience
and would likely to able to shed some light on the
committee questions.
Joyce Anderson invited Chad Hutchison to speak to the
committee about the questions in the Advisory Opinion
request.
Senate Majority Counsel Chad Hutchison clarified that the
legislator who brought forward the question was asking the
specific questions because he himself is a self-employed
commercial fisherman. The focus of the question was meant
to be on the $10,000 threshold rather than the occupation
of a particular legislator.
Joyce Anderson stated that she had no issue with moving
forward with the questions using commercial guide and
asked Dan Wayne if he had an issue with it. Dan Wayne
replied he did not if self-employment of the legislator was
established.
Joyce Anderson recommended amending the question to say
that the legislator is a self-employed guide. Dan Wayne
agreed. Joyce Anderson recommended also adding to the
beginning of the answer that the committee had received
clarification during the committee meeting that the
legislator is a self-employed commercial guide.
Dan Wayne referred to the committee's attention to the
earlier discussion about possible conflicts among draft
Advisory Opinion 19-02, Advisory Opinion 19-01, and
Advisory Opinion 18-05. Wayne stated that he did not think
there was a conflict but if there is, the remedy would be
to correct and re-issue those advisory opinions.
Conner Thomas moved to adopt AO 19-02 as amended.
Joyce Anderson asked if there were further discussion.
There was no further discussion.
Joyce Anderson directed Jerry Anderson to read the synopsis
of Advisory Opinion 19-02 and to conduct a roll call vote.
Jerry Anderson read the synopsis:
Formal Advisory Opinion AO 19-02 advises whether
specific actions including to take or withhold
official action or exert official influence and
declaring a conflict and voting are proper under AS
24.60.030(e) and (g) in specified situations and the
definition of "substantial harm" and whether a
legislative committee or the office of a conflicted
chair of a committee may sponsor legislation in a
situation where the chair of the committee is
conflicted and other specific details of situations
where a conflict is present under AS 24.60.030(e).
Roll Call Vote [is] to concur or not concur with the
draft opinion. A vote of yes will be a vote to concur
with the draft opinion as amended in committee
discussion. A vote of no will be to not concur with
the draft opinion as amended in committee discussion.
Roll Call
Representative Sara Hannan Y
Representative DeLena Johnson Y
Skip Cook Y
Conner Thomas Y
Joyce Anderson Y
Deb Fancher Y
Lee Holmes Y
Senator John Coghill Absent from vote
Senator Tom Begich Absent from vote
The Ethics Committee voted to concur with the Advisory
Opinion 19-02 by a vote of 7-0.
Joyce Anderson reviewed the recommended amendments to
Advisory Opinion 19-02.
b. AO 19-03
The Advisory Opinion was not available at the time of the
meeting
c. AO 19-04
Joyce Anderson said that confidentiality had been waived on
Advisory Opinion 19-04 and directed
Dan Wayne to begin addressing it. Dan Wayne acknowledged
that a statement to that effect was not included in the
draft and said that he would add it.
Dan Wayne read Advisory Opinion 19-04.
Dan Wayne suggested adding a "(B)" after the third
reference to AS 24.60.030(e)(3) in the first full paragraph
on page five so that the sentence reads: "In this instance
the legislator does have a conflict of interest under
(e)(3)(B), and therefore organizing and promoting the
meeting would be prohibited official action under (e)(3),
and create a strong appearance of impropriety under AS
24.60.010.
Joyce Anderson agreed with Dan Wayne's recommendation.
Skip Cook recommended changing the last sentence on page
four to say: Although this might constitute a public
meeting, the legislator's conduct leading up to the meeting
would constitute the taking of official action prohibited
by (e)(3).
Joyce Anderson reported that Lee Holmes had pointed out to
her that the first line of page five says: the legislator
would be taking official action to organize and promote a
public discussion or debate. Changing page four would make
it consistent with page five.
Joyce Anderson reviewed the recommended changes.
Dan Wayne added that he would also add a reference to
waiving of confidentiality.
Joyce Anderson agreed there should be a reference at the
beginning to waiving confidentiality.
Conner Thomas pointed out that in Advisory Opinion 19-02
the reference to waiving confidentiality was in a footnote.
Joyce Anderson agreed and said that adding a footnote would
also be acceptable.
Representative Sara Hannan asked if all of the references
to (e)(3) in the first full paragraph on page five would be
changed to (e)(3)(B). After some discussion, it was decided
to change only the third and fourth references.
Skip Cook recommended making it clearer to whom the "you"
in the "Facts" on page one refers.
Dan Wayne suggested adding a phrase to the first sentence
that identifies to whom the statement refers.
Joyce Anderson agreed.
Joyce Anderson recommended that the advisory opinion should
say "Statement of Facts" to be consistent with Advisory
Opinion 19-02.
Joyce Anderson again reviewed the recommended changes to
the advisory opinion and entertained a motion to approve
Advisory Opinion 19-04 as amended.
Deb Fancher moved to approve Advisory Opinion 19-04 as
amended.
Joyce Anderson inquired whether there was further
discussion. There was no further discussion.
Joyce Anderson directed Jerry Anderson to conduct a roll
call vote.
Jerry Anderson read a synopsis of Advisory Opinion 19-04,
then conducted a roll call vote.
Formal Advisory Opinion AO 19-04 advises whether
specific actions including meeting in private in a
legislator's office or in a conference room with a
public notice is taking or withholding official action
or exerting official influence under AS 24.60.030(e)
when a legislator has a conflict of interest.
Roll Call Vote to concur or not concur with the draft
opinion. A vote of yes will be a vote to concur with
the draft opinion as amended in the committee
discussion. A vote of no will be to not concur with
the draft opinion as amended in committee discussion.
Roll Call
Lee Holmes Y
Representative Sara Hannan Y
Representative DeLena Johnson Y
Skip Cook Y
Conner Thomas Y
Joyce Anderson Y
Deb Fancher Y
Senator John Coghill Absent from vote
Senator Tom Begich Absent from vote
The Ethics Committee voted to concur with the draft
Advisory Opinion AO 19-04 by a vote of 7-0.
d. AO 19-05
Joyce Anderson instructed Dan Wayne to introduce draft
Advisory Opinion 19-05.
Dan Wayne confirmed with Jerry Anderson that
confidentiality had been waived. Upon confirmation, Dan
Wayne began to read the draft advisory opinion.
Dan Wayne recommended citing Advisory Opinion 19-02 in the
full paragraph on page four because it refers to the
circumstances that constitute "official action." Dan Wayne
explained he had not included the citation in the draft
because Advisory Opinion 19-02 had not yet been approved.
Joyce Anderson agreed to the suggestion and asked if Dan
Wayne was referring to a footnote after the words, "would
not apply."
Dan Wayne responded to Joyce Anderson that was the correct
paragraph and suggested putting the footnote after the
words, "any kind of meeting."
Joyce Anderson agreed.
Dan Wayne recommended adding the same footnote to the end
of the sentence in the next paragraph that ends on page
five and to include a reference to Advisory Opinion 19-02.
He also recommended including a reference to Advisory
Opinion 19-02 along with Advisory Opinion 18-05 and
Advisory Opinion 19-01 in the first sentence of the
Sponsoring legislation section.
Joyce Anderson agreed with both recommendations.
Dan Wayne recommended changing the last sentence of the
third paragraph on page seven to say: If additional facts
become known that indicate you or your spouse could
substantially benefit from or be harmed by the passage or
failure of HB 76 or a similar bill, a conflict of interest
may arise.
Joyce Anderson asked for the committee's thoughts.
Lee Holmes said he thought it would be confusing to add
conjecture to the response by referring to something that
could happen in the future.
Joyce Anderson asked Lee Holmes if removing the last
sentence entirely would meet his concern.
Lee Holmes responded that he thinks the entire paragraph
could be deleted because the paragraph preceding it is the
conclusion that answers the specific question.
Representative Sara Hannan agreed with Lee Holmes, noting
that the proposal to add the words, "or failure," to the
last sentence of the third paragraph on page seven was
speculative and did not seem to answer the question asked
in the advisory opinion request.
Conner Thomas pointed out that the statement of facts on
the first page says, "The committee relies on facts that
you have described in answering your questions" and said
that language lays out the foundation of the answer.
Joyce Anderson said that based on discussion it sounds as
if the committee wants to eliminate the entire last
paragraph.
Skip Cook moved to approve the decision eliminating the
last paragraph and other changes.
Joyce Anderson said there was a motion to approve Advisory
Opinion 19-05 with recommended changes.
Joyce Anderson asked if there was further discussion.
Joyce Anderson directed Jerry Anderson to conduct a roll
call vote.
Jerry Anderson read the summary of draft Advisory Opinion
19-05.
Formal Advisory Opinion AO 19-05 advises whether a
legislator who is a residential appraiser and who has
a spouse who is a mortgage originator may take or
withhold official action or exert official influence
under AS 24.60.030(e) and (g) on legislation replacing
the state residential code specifically referencing HB
76.
Roll Call Vote to concur or not concur with the draft
opinion. A vote of yes will be a vote to concur with
the draft opinion. A vote of no will be to not concur
with the draft opinion, both as amended in committee
discussion.
Roll Call
Lee Holmes Y
Representative Sara Hannan Y
Representative DeLena Johnson Y
Skip Cook Y
Conner Thomas Y
Joyce Anderson Y
Deb Fancher Y
Senator John Coghill Absent from vote
Senator Tom Begich Absent from vote
Joyce Anderson announced a short break.
Joyce Anderson called the meeting back to order, directed
the committee to item number eight on the agenda, and
referred discussion of that item to Jerry Anderson.
8. CHAIR/STAFF REPORT
a. H 17-03 COMPLAINT UPDATE
Jerry Anderson summarized the complaint proceedings to
date. Representative David Eastman contested Complaint
Decision H 17-03 by filing an appeal with the Superior
Court. The order dismissing the appeal was included in the
packet. Jerry Anderson said that the Ethics Committee used
outside counsel, Brent Cole, for purposes of the appeal.
The Ethics Committee is seeking attorney fees and that
motion is still pending.
Joyce Anderson explained that the reason this item is on
the Full Committee agenda rather than the House
Subcommittee agenda is that the Ethics Committee complaint
process is confidential only until a decision is issued.
After a decision, details related to the complaint become a
public matter.
Jerry Anderson added that this complaint had gone through
the complaint process, including a public hearing.
Representative Sarah Hannan asked clarifying questions
regarding the routineness of the process of seeking
attorney fees. Jerry Anderson confirmed Representative
Hannan's understanding that the process for seeking
attorney fees was routine.
Conner Thomas said that the time for an appeal had not yet
expired. Jerry Anderson confirmed the accuracy of Conner
Thomas's statement.
Conner Thomas said it was routine in litigation to ask for
attorney fees.
Joyce Anderson stated that appealing an Ethics Committee
decision is unusual, adding that during her tenure as
administrator there had never been an appeal to the court
system.
Representative Sarah Hannan asked how long the process of
recovering attorney fees takes.
Conner Thomas said the court has up to six months to make a
decision after all the documents are submitted. He added
that it is usually much quicker than that.
Skip Cook asked whether Representative David Eastman was
personally responsible for the attorney fees or if he would
be able to use legislative funds. Cook added that the
Ethics Committee can recommend penalties to the legislature
but in this case, it is a court order, so it is a different
situation.
Representative DeLena Johnson asked what the amount of
attorney fees may be recovered.
Jerry Anderson answered the amount is expected to be less
than one-third of the amount the Ethics Committee approved
for the outside counsel.
Skip Cook commented that the Ethics Committee would not
expect to see reimbursement for the public hearing and
related costs.
Jerry Anderson said that Joyce Anderson had approved an
increase from $5,000 to $8,000 for the outside counsel
contract for a period beginning January 1, 2019. It is
anticipated that would leave about $2,000 to meet a need
that may arise before the end of the fiscal year. The
contract is being drafted now.
Joyce Anderson questioned if even with chair approval
the increase in the contract needs to be brought up in a
committee meeting.
Skip Cook said he thinks that is something that has been
considered in the past by the committee. Joyce Anderson
expressed her desire to do so.
Jerry Anderson pointed out that the contract was not on the
agenda and the contract was not ready.
Joyce Anderson directed Jerry Anderson to add that item to
the agenda under Other Business.
b. 2019 ETHICS TRAINING
Jerry Anderson said that all of the employees who needed to
finish training with the exception of new employees
have completed their training. New employees are required
to view six hours and ten minutes of video training. Forty
minutes of that training would not apply to non-legislative
staff.
Joyce Anderson added that the Ethics Committee requires two
types of training: ethics training and preventing sexual
and other harassment training, which is why training
requires over six hours.
9. 2019 LEGISLATION UPDATE
Joyce Anderson directed the meeting to the legislation
update.
Jerry Anderson said the Senate Judiciary Committee had
passed the CS for SB 89, which Ethics Committee members had
received in their packets. Jerry Anderson deferred to
Senator John Coghill for more information.
Senator John Coghill said that SB 89 had been heard in the
Rules Committee and in the Senate Judiciary Committee. He
explained that the bill re-sets some of the provisions of
HB 44 [from 2018]. The bill had been debated on the Senate
floor where it passed by 15-4.
The bill will move to the House for consideration. Senator
John Coghill said the bill had been noticed in the House
Judiciary Committee, pending referral, and would probably
be read across the House floor the next morning, where it
would be considered right away.
Representative Sarah Hannan commented that prior to the
governor's budget proposal, amending HB 44 was one of the
top concerns so the House has an interest in expediting the
bill.
Senator John Coghill said that he has been working on this
issue steadily and that the ambiguities in the provisions
make it difficult to understand and follow.
Joyce Anderson commented that the Ethics Committee does not
pass legislation; the committee only enforces the
legislation.
10. OTHER BUSINESS
a. CONTRACT FOR LEGAL SERVICES
Joyce Anderson deferred to Jerry Anderson about whether the
committee should vote on the increase without having the
contract.
Jerry Anderson said he thought it was fine to go ahead with
a vote on the contract.
Joyce Anderson entertained a motion to increase the amount
of the outside counsel contract.
Deb Fancher moved the question.
Joyce Anderson entertained discussion of the motion.
Representative DeLena Johnson asked if this action confirms
the action of the chair.
Joyce Anderson answered yes and read the applicable section
of the Rules of Procedure.
Skip Cook said there already exists a contract, the
question is whether to increase the amount. He inquired if
action could be taken if it was not noticed for the
meeting; it was not in the agenda.
Joyce Anderson said it had been added to Other Business.
Representative DeLena Johnson voiced concern that it was
not on the agenda and asked if counsel were available to
answer the question.
Joyce Anderson answered that counsel does not attend the
meetings.
Deb Fancher offered to withdraw the motion.
Joyce Anderson agreed.
Deb Fancher withdrew the motion.
Representative DeLena Johnson said she thought it was smart
to follow procedure.
Joyce Anderson agreed.
Joyce Anderson said there is no date scheduled for a future
meeting, leading to discussion about possible future
meeting times.
Jerry Anderson said there is still one outstanding advisory
opinion but that is the only other thing he knows of at
this time to discuss in committee.
Joyce Anderson responded the advisory opinion issue
addressed in the request is most pertinent during the
legislative interim so she advised the advisory opinion
could be held back. Jerry Anderson should check with
Senator Begich, the requester of the opinion and member of
the Ethics Committee, to determine if waiting to issue an
answer to his request is OK with him.
Dan Wayne expressed appreciation for that sentiment.
Joyce Anderson said that by statute there is a timeframe
under which the advisory opinion request is addressed.
Joyce Anderson said she does not anticipate another meeting
until after session.
Joyce Anderson invited the new committee members to let
Jerry Anderson know if they have agenda items for future
meetings.
11. ADJOURN
Joyce Anderson adjourned the meeting.
1:53:00 PM
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