Legislature(2005 - 2006)BUTROVICH 205
02/16/2005 08:30 AM Senate JUDICIARY
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| Overview Presentation: Select Committee on Legislative Ethics | |
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SENATOR HUGGINSALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
February 16, 2005
8:37 a.m.
MEMBERS PRESENT
Senator Ralph Seekins, Chair
Senator Charlie Huggins, Vice Chair
Senator Gene Therriault
Senator Hollis French
MEMBERS ABSENT
Senator Gretchen Guess
COMMITTEE CALENDAR
Overview of the Select Committee on Legislative Ethics (SCLE) -
Review of the SCLE Opinion dated January 7, 2005 by Ms. Joyce
Anderson, Administrator, Select Committee on Legislative Ethics
(SCLE).
ACTION NARRATIVE
CHAIR RALPH SEEKINS called the Senate Judiciary Standing
Committee meeting to order at 8:37:28 AM. Present were Senators
Charlie Huggins, Gene Therriault and Chair Ralph Seekins.
Senator Hollis French arrived at 8:41.
^Overview Presentation: Select Committee on Legislative Ethics
8:39:00 AM
MS. JOYCE ANDERSON, SCLE administrator, said she had been
working for the SCLE since June 2001. The committee is
responsible for looking at the Legislative Ethics Code, AS
24.60. It issues advisory opinions for legislators or
legislative employee.
8:41:03 AM
The request could be for a confidential advisory opinion or for
a discussion in an open session. She said the opinion could be
drafted by herself or Barbara Craver, SCLE legal counsel, and
would go to the committee for review until the final decision
was agreed upon. The advisory opinion is issued without names
even if confidentiality was waived by the complainant.
The committee is responsible for looking at complaints against a
sitting legislator or employee, present or past, if the incident
occurred within a certain timeframe. It looks at the legitimacy
of a complaint and could decide to go forward with an
investigation. At that point, the scope of investigation is
settled and will be what the committee focuses on. It is also
decided at the first meeting whether an outside investigator
would be appropriate. According to statute, if there is an
investigation, all of the materials are confidential and the
committee meets in executive session to look at them. If there
is enough information, a decision can be made on whether there
is probable cause, a dismissal or a need of more information.
8:41:53 AM
SENATOR HOLLIS FRENCH arrived.
8:42:26 AM
CHAIR SEEKINS asked what happens if a complaint has merit.
MS. ANDERSON replied that it's moved forward to an investigative
stage. Not having merit could mean the issue is not within SCLE
jurisdiction - the complaint might not be in the Ethics Code or
the timeframe may have expired, among other reasons.
8:43:31 AM
MS. ANDERSON said the statute authorizes her to give informal
advice, however it is not binding on the committee. A formal
opinion can be requested.
8:44:05 AM
CHAIR SEEKINS asked the difference between binding and advisory.
MS. ANDERSON replied that the SCLE gives a formal binding
advisory opinion - binding by the committee on the person who
asked for it.
8:44:43 AM
CHAIR SEEKINS said he couldn't find that in statute.
8:45:02 AM
MS. ANDERSON continued describing her responsibilities saying
that she provides administrative support to the nine-member
committee makes sure the disclosures are properly completed and
filed on time and distributes a bi-monthly newsletter. She has
put together a "Standards of Conduct Handbook" and put together
the published opinions. She investigates complaints the
committee has put forward during its scope of investigation
phase and trains legislators and staff. She works closely with
the Alaska Public Offices Commission (APOC).
8:46:50 AM
SENATOR HUGGINS asked the value of her informal advice since
it's not binding on the committee.
MS. ANDERSON replied that she issues informal advice based on
what a person is asking. It is given in good faith. All informal
advice is cleansed of any identifying information and submitted
to the committee at the next meeting.
8:48:40 AM
SENATOR HUGGINS asked what happens when the committee questions
her informal advice.
MS. ANDERSON explained that she gets back to the individual who
requested the advice, obtains more information and gets back to
the committee. The new information may have answered the
committee's questions or it may change the advice.
8:49:33 AM
CHAIR SEEKINS asked the value of an informal opinion on an
ethics violation if it's not binding on the committee.
8:50:28 AM
MS. ANDERSON replied when an individual requests informal
advice, she always suggests that he or she ask for an advisory
opinion if that is appropriate.
8:51:41 AM
CHAIR SEEKINS asked whether the SCLE has questioned her advice.
MS. ANDERSON replied three times the committee questioned her
advice. She obtained additional information for two times and
changed the advice.
8:52:19 AM
SENATOR HUGGINS asked whether interpretation of advice is a
common problem.
MS. ANDERSON replied that the statute is ambiguous; it depends
on the facts of the situation.
8:53:37 AM
CHAIR SEEKINS asked whether someone could request an opinion
about someone else's actions.
MS. ANDERSON replied that the person could only request an
opinion about his own actions.
8:54:27 AM
CHAIR SEEKINS asked if it ever looked like someone wanted an
opinion to bring charges against someone else.
MS. ANDERSON said she would have to check. She added that SCLE
has received a request for a binding opinion that was not on the
action of the individual requesting it and the committee denied
responding to that request.
8:55:18 AM
SENATOR HUGGINS asked for a clearer understanding of what
advisory and binding opinions are.
8:56:24 AM
CHAIR SEEKINS said if new material facts are admitted, the
binding opinion can change. Otherwise the SCLE opinion can't
change.
MS. ANDERSON agreed. She referenced AS 24.60.165 that talks
about use of information submitted with requests for advice. The
last sentence says if the individual goes against the advice of
the advisory opinion, that information could be used against him
in a complaint process.
8:58:10 AM
CHAIR SEEKINS asked if Chapter 60, the "Standards of Conduct,"
apply to all employees or just some.
MS. ANDERSON replied that it applies to all legislators and
staff plus some Legislative Affairs employees. Certain employees
are exempt like the supply shop, the print shop and a few
others. It also covers members of the SCLE.
8:59:25 AM
CHAIR SEEKINS said AS 24.60.020 leads him to believe it includes
all legislative employees.
9:00:00 AM
MS. ANDERSON said employees under a Range 15 aren't covered
because they don't have a level of responsibility that requires
them to be covered. She offered to research the issue further.
9:00:38 AM
CHAIR SEEKINS asked what the timeframe is for an advisory
opinion.
MS. ANDERSON replied the committee must issue an advisory
opinion within 60 days. The person requesting the opinion may
waive that request or the committee, based on circumstances, may
ask him to waive that request.
9:01:48 AM
CHAIR SEEKINS asked about confidentiality.
MS. ANDERSON explained that an advisory opinion is confidential
unless, but the requestor can waive confidentiality.
9:02:19 AM
CHAIR SEEKINS asked what the responsibilities for a complainant
has.
9:02:41 AM
MS. ANDERSON replied that according to legislation that passed
last year, the complainant must keep confidential that they did
file a complaint or the committee will dismiss the complaint.
The statute also says that does not affect the right
of the committee or any other person to file a
complaint under similar circumstances. It's just that
individual that filed the complaint would not be able
to file another one.
She referenced an incident a couple of years ago when someone
filed a complaint and then went public with it on TV.
9:05:20 AM
CHAIR SEEKINS said he remembered that circumstance and asked if
that complaint would be dismissed under the new legislation.
MS. ANDERSON replied yes.
CHAIR SEEKINS asked whether the committee could dismiss that
complaint, but then might proceed forward with its own complaint
using the information.
MS. ANDERSON answered that could happen, although it hasn't. "It
would be a policy decision by the committee as to how they
wanted to proceed with that."
9:05:49 AM
SENATOR HUGGINS said Wasilla residents want integrity, but if he
goes public with a violation, he is in violation of
confidentiality. He asked if that made sense. He didn't want
people to use this as a "steel trap" for things that weren't
intended.
9:07:43 AM
CHAIR SEEKINS responded that the ethics laws don't apply to
people who aren't legislators or legislative employees.
MS. ANDERSON replied that her research shows that a lot of
states fine individuals who have filed an ethics complaint and
then make it public. Some states don't allow the complaint to be
brought forward again.
9:10:40 AM
CHAIR SEEKINS asked what the majority of complaints are
concerning.
MS. ANDERSON replied that advisory opinions run the whole gamut
- 40 opinions mentioned "financial" or "conflict of interest"
since 1984, advisory opinions have been asked for contracts over
$5,000. Some requests are very factual; others are general. It's
difficult to talk about complaints since they are confidential.
The only ones that are published are the ones that are
investigated; she can't talk about ones that are dismissed. The
committee has had complaints regarding legislators with
legislation, use of employees for personal purposes and open
meetings.
9:14:23 AM
SENATOR HUGGINS asked if she thought anything should be changed
based on the coalbed methane issue in the Mat-Su Valley.
MS. ANDERSON replied when to declare a conflict of interest on
the floor is one of the areas that require clarification. Her
advice has been to announce a conflict in committee as well as
on the floor, although the Ethics Code does not require action.
Most people attend the committee meetings and not the floor
session.
9:17:58 AM
SENATOR THERRIAULT commented that you don't have to stand up on
the floor and say you're a fisherman every time a fishing issue
comes up; you disclose that information on a financial
disclosure. "We don't want to get to the point where at the
beginning of every committee meeting everybody turns in a copy
of their financial disclosure. We're required to do it once."
9:19:16 AM
CHAIR SEEKINS said there is a difference between impropriety and
appearance of the same. Sometimes it's a good idea to insulate
oneself from appearance of improper behavior. The question is if
the statute makes what improper behavior clear.
9:21:00 AM
MS. ANDERSON referenced AS 24.60.030 (g) that says a legislator
may not vote on a question if the legislator 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 that interest of the action to be voted on is
greater than the effect in a substantial class of persons to
which the legislator belongs as a member of either that
profession, occupation, industry or region.
9:22:51 AM
CHAIR SEEKINS asked how the Uniform Rules come into effect.
MS. ANDERSON replied that they say, "Unless the entire body
agrees to allow that person not to vote, they must vote."
CHAIR SEEKINS he thought that referred to Rule 34(b) and that it
referred to voting on the floor, but not in committee.
MS. ANDERSON agreed and said there is an example on page 15 of
the SCLE Handbook.
9:26:20 AM
SENATOR THERRIAULT said it gets to be absurd.
9:28:01 AM
CHAIR SEEKINS asked if she had seen someone dismissed from a
vote.
MS. ANDERSON answered that it had happened according to research
she did.
SENATOR THERRIAULT remarked, "There are only 20 of us.... I have
never seen anyone excused from voting - ever."
CHAIR SEEKINS asked the definition of "substantial."
MS. ANDERSON replied that it isn't defined in the code and that
would be an area the Legislature could look at. The other
example has to do with stock ownership.
Owning $2,000 worth of stock in a major oil company
would not be considered substantial, whereas owning
$2,000 of stock in a fledgling business that only
issued $10,000 total in stock would be considered
substantial.
9:29:25 AM Recess 9:38:08 AM
9:38:53 AM
SENATOR THERRIAULT asked who determines the appearance of
conflict of interest.
MS. ANDERSON replied that the statute itself has no definition
of "substantial" and if a complaint were received, the committee
would have to look at it to see whether there is a possible
violation of the Ethics Code, in which case, it would be moved
forward to an investigation.
9:41:06 AM
SENATOR THERRIAULT said he thought the issue of appearance of a
conflict of interest in the findings section is problematic.
MS. ANDERSON replied that she doesn't speak for the SCLE, but
for informal advice, she doesn't look at the findings. She looks
at a particular statute that talks about the issue. The issue
Senator Therriault is talking about is in AS 14.60.010 (2).
9:44:24 AM
SENATOR FRENCH said he thought findings lay out high standards,
but a violation must be grounded in some statute. Findings are
good precepts to guide one's behavior.
9:45:32 AM
SENATOR THERRIAULT referenced section (4) that says, "The law
should not impose unreasonable or unnecessary burdens that would
discourage citizens from entering the state of government
service." If the law is fuzzy, that discourages public service.
9:47:20 AM
CHAIR SEEKINS agreed that it must be clear and definitive.
9:48:22 AM
SENATOR THERRIAULT asked if an outside group requested an ethics
opinion on the coalbed methane issue.
MS. ANDERSON replied a legislator or a legislative staff person
could only request an advisory opinion.
9:49:03 AM
SENATOR THERRIAULT asked if a complaint was made.
MS. ANDERSON replied that committee neither acknowledges nor
doesn't acknowledge if a complaint has been filed.
If a complaint had been filed and investigated, it
would have been put in the book that was sent around
to offices and no, there is not one in there.
9:49:50 AM
SENATOR THERRIAULT said the troubling aspect is the appearance
of conflict. "What is the bar for that?"
MS. ANDERSON replied that she hasn't received a complaint that
talked about an "appearance" of conflict and didn't think one
had ever been filed. Public complaints have pointed to a
particular statute and given a particular statement as to what
someone thought was thought to be violated.
9:51:16 AM
SENATOR THERRIAULT asked if language about appearance is
standard in decisions that the committee issues.
MS. ANDERSON replied that she is not familiar with the '94
advisory opinion in question and she offered to check that out.
She doesn't usually doesn't volunteer that language unless
someone asks about it.
9:52:26 AM
CHAIR SEEKINS asked if the SCLE has defined something that is
not in statute.
MS. ANDERSON replied yes; the committee is required to make a
decision based on the information it had whether it's a
complaint or a request for an advisory opinion. She asked him to
clarify whether he meant something that wasn't stated or
something that was ambiguous.
9:53:58 AM
CHAIR SEEKINS replied both, but one at a time. If an activity is
not prohibited in statute, but appears to be an ethics
violation, would SCLE define it and has that ever happened.
MS. ANDERSON replied that it hasn't ever happened.
The committee is very careful in that aspect, because
they are not creating law, because that isn't their
jurisdiction. Their jurisdiction is to look at issues
that relate to the ethics statute.
9:55:47 AM
CHAIR SEEKINS asked if advisory opinions are viewed in light of
statutes that existed at the time of the opinion versus the
statute that is in place today.
MS. ANDERSON answered yes. The SCLE internal web page has
advisory opinions listed and has a disclaimer saying the
opinions might not be applicable to today's statutes, because
they may have changed.
9:57:20 AM
CHAIR SEEKINS asked when something hasn't been clearly defined
in statute and might become a benchmark, for instance like 25%
ownership being a substantial interest, would that carry forward
into future decisions.
MS. ANDERSON replied that he was speaking of an example in the
Standards of Conduct Handbook. The committee looks at all the
facts relating to a particular case. The committee might ask for
outside information if it feels all the facts aren't there.
9:58:43 AM
SENATOR HUGGINS asked if she had seen any significant changing
of ethics laws in her tenure.
MS. ANDERSON replied that the statute has been changed four
times during her tenure. It was changed for advice on lobbyists
giving tickets to legislators and legislators using private
airplanes, for instance.
10:00:15 AM
SENATOR HUGGINS said he is concerned when an issue has notoriety
as this one does and he is resistant to a knee-jerk reaction to
fix it so well it's overkill and needs to be revisited again.
10:01:38 AM
SENATOR FRENCH asked how the complaint system works and if a
finding of no violation remains confidential.
MS. ANDERSON replied that complaints moved to the investigative
stage are public. If a complaint doesn't move to the
investigative stage, it remains confidential. The first thing
she does when a complaint is received is she contacts the chair
of the House or Senate subcommittee. The complaint would go
before one or both of those depending on whom the issue is
concerning. A complaint against a Legislative Affairs person
would go before the full committee.
10:03:34 AM
SENATOR FRENCH asked if the complaint stays in-house.
MS. ANDERSON replied that the complaint stays in the house that
has the complaint. The subcommittee is instructed to not share
the information with other committee members. If the complaint
is completely out of the committee's jurisdiction, she wouldn't
call it together. The chair of the subcommittee would call a
meeting to look at the complaint. She could do a preliminary
investigation. The committee decides if the subject is a
violation of the Ethics Code. If so, it is obligated by statute
to move it forward to an investigative stage. At the meeting in
executive session, the committee would decide the scope of
investigation. The scope would be sent to the subject of the
complaint and the complainant. At this first meeting, the
committee decides if staff will investigate the complaint or
whether to go with an outside investigator. It has gone with an
outside investigator when allegations were very complex.
10:06:15 AM
At the second committee meeting the committee would look at the
investigative materials and see whether it had the information
it needed. It could make a determination of probable cause or it
could ask for more information. Statute also allows the
committee to expand its scope of investigation if there is
another possible violation. The subject of the complaint has the
option to appear before the committee and can have counsel.
After the committee has all the information, it would deliberate
on whether there was probably cause or dismiss the complaint.
10:08:21 AM
SENATOR FRENCH asked what statute governs the complaint process.
MS. ANDERSON replied AS 24.60.170 and there are some legal
opinions on how to interpret some of issues.
10:08:38 AM
SENATOR HUGGINS asked if a potato farmer wanted to be on the
committee, what could he tell him the prerequisites are.
MS. ANDERSON answered that the public members serve a two-year
term and are appointed by the chief justice of the Supreme
Court. So they submit an application letter to the chief justice
saying they would like to be a member of the committee. The only
requirement is they must let him know what political party they
belong to. She said that there hasn't been much publicity about
the application process and the committee has decided to do more
in the future.
10:10:11 AM
SENATOR HUGGINS asked what the average profession on the
committee is.
MS. ANDERSON responded that right now there are three attorneys,
one teacher and one professor.
10:11:00 AM
SENATOR HUGGINS said it is questionable where attorneys rate in
ethical confidence by the public.
10:11:36 AM
CHAIR SEEKINS asked if she thought AS 24.60.170 should be
reviewed for clarification.
MS. ANDERSON said it is a difficult statute because it is long
and add-ons refer to many preceding sections.
10:12:45 AM
CHAIR SEEKINS asked how it would read easier?
MS. ANDERSON replied that recommending legislation is part of
her duties and she would look at that issue and make
recommendations.
10:13:36 AM
CHAIR SEEKINS said he wants the statute to be clear and easily
understood. He asked if there is any published commentary to
help understand it.
10:16:29 AM
MS. ANDERSON replied that only the Handbook and advisory
opinions are available. She asked him to be more specific about
what he meant in terms of commentary.
CHAIR SEEKINS elaborated something that gives a little bit of
history of where the law came from, what the intent was, some
guidelines of what to do, a cross reference to the form that
would have to be used to declare a conflict.
MS. ANDERSON said something like that sounds like it would be
helpful. She thought declaring conflict on the floor could be
clarified.
10:18:14 AM
SENATOR FRENCH asked how advisory opinions are circulated.
MS. ANDERSON replied by e-mail newsletter, booklets on
complaints and advisory opinions reports and on the SCLE
website.
10:19:46 AM
CHAIR SEEKINS asked if any other section of the statute might
need additional clarification.
MS. ANDERSON suggested the membership of the committee should be
fleshed out; it is supposed to have nine members, but has only
four. Senators have not been appointed yet and three of the five
public member terms expired last week. The committee doesn't
have enough for a quorum. She suggested making the public member
terms for three years at staggered intervals. "We're not
operational right now. We cannot meet to discuss advisory
opinions. We cannot meet to discuss complaints or any of our
other business that needs to be taken care of."
10:22:16 AM
SENATOR FRENCH asked the process for getting new public members.
MS. ANDERSON replied the chief justice has referred three names
to the Legislature for confirmation hearings.
10:23:45 AM
SENATOR HUGGINS asked how his potato farmer finds out about
vacancies.
CHAIR SEEKIKNS said he doesn't.
MS. ANDERSON responded there has not been a good formal system
in place for vacancies on the committee. The website tells
people to contact the chief justices of the Alaska Supreme Court
by submitting a letter. An application process is being worked
on.
10:24:55 AM
SENATOR HUGGINS aired the public is unaware it can become
involved in the process.
10:25:20 AM
CHAIR SEEKINS said the make up of the committee should have
broad representation.
10:26:18 AM
SENATOR FRENCH asked when public member terms end.
CHAIR SEEKINS replied 30 days after the start of the legislative
session.
SENATOR FRENCH asked whether forwarded names are public record.
MS. ANDERSON replied Chief Justice Bryner forwarded three names
for three vacancies in early December.
SENATOR FRENCH openly considered the fact that the Legislature
has to just vote up or down on individuals. "It's not as if
we're going to get more names. Is that right?"
MS. ANDERSON replied her experience is that the chief justices
have always forwarded just the number of names for the number of
vacancies.
10:27:46 AM
SENATOR HUGGINS asked the professions of the three candidates.
MS. ANDERSON replied two attorneys and one teacher.
10:28:57 AM
SENATOR HUGGINS said he was concerned that a potato farmer
doesn't have access to the chief justice.
MS. ANDERSON said her suggestion was to have three-year
staggered terms for public members.
10:31:05 AM
CHAIR SEEKINS said the last time the Judiciary Committee
considered a nomination there was concern that a member had been
on the committee for some time. It has nothing to do with the
performance of an individual, but it shouldn't be a lifetime
appointment. A new individual might be needed to provide a
regular rotation from the public.
There being no further business to come before the committee, he
adjourned the meeting at 10:32:44 AM.
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