04/03/2024 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB238 | |
| SB165 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 238 | TELECONFERENCED | |
| += | SB 165 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
April 3, 2024
1:31 p.m.
MEMBERS PRESENT
Senator Matt Claman, Chair
Senator Jesse Kiehl, Vice Chair
Senator James Kaufman
Senator Cathy Giessel
Senator Löki Tobin
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
COMMITTEE SUBSTITUTE FOR HOUSE BILL NO. 238(JUD)
"An Act relating to criminal mischief in the third degree; and
providing for an effective date."
- HEARD & HELD
SENATE BILL NO. 165
"An Act relating to legal representation of public officers in
ethics complaints."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 238
SHORT TITLE: CRIMINAL MISCHIEF 3RD DEGREE
SPONSOR(s): REPRESENTATIVE(s) JOSEPHSON
01/16/24 (H) PREFILE RELEASED 1/8/24
01/16/24 (H) READ THE FIRST TIME - REFERRALS
01/16/24 (H) JUD
02/26/24 (H) JUD AT 1:30 PM GRUENBERG 120
02/26/24 (H) Heard & Held
02/26/24 (H) MINUTE(JUD)
03/01/24 (H) JUD WAIVED PUBLIC HEARING NOTICE,
RULE 23
03/01/24 (H) JUD AT 1:30 PM GRUENBERG 120
03/01/24 (H) Heard & Held
03/01/24 (H) MINUTE(JUD)
03/11/24 (H) JUD AT 1:00 PM GRUENBERG 120
03/11/24 (H) Moved CSHB 238(JUD) Out of Committee
03/11/24 (H) MINUTE(JUD)
03/13/24 (H) JUD RPT CS(JUD) 5DP
03/13/24 (H) DP: GRAY, GROH, SUMNER, CARPENTER,
VANCE
03/20/24 (H) TRANSMITTED TO (S)
03/20/24 (H) VERSION: CSHB 238(JUD)
03/22/24 (S) READ THE FIRST TIME - REFERRALS
03/22/24 (S) JUD
04/03/24 (S) JUD AT 1:30 PM BUTROVICH 205
BILL: SB 165
SHORT TITLE: DEFENSE OF PUB. OFFICER: ETHICS COMPLAINT
SPONSOR(s): SENATOR(s) CLAMAN
01/16/24 (S) PREFILE RELEASED 1/8/24
01/16/24 (S) READ THE FIRST TIME - REFERRALS
01/16/24 (S) JUD, FIN
02/28/24 (S) JUD AT 1:30 PM BUTROVICH 205
02/28/24 (S) Heard & Held
02/28/24 (S) MINUTE(JUD)
03/22/24 (S) JUD AT 1:30 PM BUTROVICH 205
03/22/24 (S) Heard & Held
03/22/24 (S) MINUTE(JUD)
04/03/24 (S) JUD AT 1:30 PM BUTROVICH 205
WITNESS REGISTER
REPRESENTATIVE ANDY JOSEPHSON, District 13
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 238.
ALEXANDER SCHROEDER, Staff
Representative Andy Josephson
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Answered questions during the discussion of
HB 238.
NANCY MEADE, General Counsel
Administrative Offices
Alaska Court System
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the discussion of
HB 238.
HEATHER BARBOUR, Member and Representative
Islamic Community of Alaska
Anchorage, Alaska
POSITION STATEMENT: Testified by invitation in support of HB
238.
LESLIE FRIED, Curator
Alaska Jewish Museum
Anchorage, Alaska
POSITION STATEMENT: Testified by invitation in support of HB
238.
STACIE KRALY, Director
Civil Division
Department of Law
Juneau, Alaska
POSITION STATEMENT: Answered questions during the hearing on
SB 165.
ACTION NARRATIVE
1:31:10 PM
CHAIR MATT CLAMAN called the Senate Judiciary Standing Committee
meeting to order at 1:31 p.m. Present at the call to order were
Senators Tobin, Kiehl, Giessel, Kaufman, and Chair Claman.
HB 238-CRIMINAL MISCHIEF 3RD DEGREE
1:31:42 PM
CHAIR CLAMAN announced the consideration of CS FOR HOUSE BILL
NO. 238(JUD) "An Act relating to criminal mischief in the third
degree; and providing for an effective date."
CHAIR CLAMAN said this is the first hearing of HB 238 in the
Senate Judiciary Committee. He invited the bill sponsor to
identify himself for the record and introduce his bill.
1:32:04 PM
REPRESENTATIVE ANDY JOSEPHSON, District 13, Alaska State
Legislature, Juneau, Alaska, sponsor of HB 238. He said the
Anti-Defamation League supports this bill.
REPRESENTATIVE JOSEPHSON said a tragic event that occurred in
Sterling, Alaska was the catalyst for HB 238. A publicly open,
same sex-oriented woman was believed targeted, and she and law
enforcement were attacked. He stated that he and the late former
Representative Gary Knopp worked for years on a bill to
establish a sentence aggravator in AS 12.55.155 for individuals
who target lesbian, gay, bisexual, and transgender (LGBT)
individuals.
REPRESENTATIVE JOSEPHSON spoke with the Anti-Defamation League
(ADL) and the organization recommended an institutional
vandalism bill. The League is the leading organization in the
country fighting antisemitism. HB 238 is not a hate crime bill,
but a criminal mischief property crime bill. Hate crimes are
typically crimes of intent; HB 238 addresses knowingly
committed offenses.
1:35:14 PM
REPRESENTATIVE JOSEPHSON stated that HB 238 distinguishes
between vandalizing public property, like a park bench, and
vandalizing a house of worship. He said vandalism of a synagogue
affects an entire congregation. He said ADL has long supported
crime enhancement statutes for such offenses. The bill is not
aimed at hate crimes but focuses on protecting all places of
worship. HB 238 does not pertain to public buildings like
libraries and post offices. Desecration crimes against public
structures do not evoke the same collective emotional response
felt by a congregation in a place of worship.
1:36:58 PM
REPRESENTATIVE JOSEPHSON said HB 238 allows desecration,
defacement, or damage to a house of worship to be charged as a C
felony at the prosecutor's discretion. Notwithstanding some
federal protections, Alaska needs this law and he offered an
example of such a case involving the Jewish Museum in Alaska.
REPRESENTATIVE JOSEPHSON reiterated that HB 238 is an
institutional vandalism bill. The legislative legal drafter
selected criminal mischief in the third degree based on ADL
recommendations and it mirrors an existing statute that makes
defacing cemeteries a C felony. He noted that both fall within
the parameters of religious significance. Current Alaska law
treats desecration of a park bench and a place of worship the
same. Alaska higher courts do not define defacement, damage, or
desecration but use the Webster's Dictionary for interpretation.
He cited the Bergman case (2016) and Willet case (1992) for
existing legal definitions related to repair costs. He said
there is not a lot of jurisprudence on defining defacement,
damage, or desecration.
1:39:57 PM
REPRESENTATIVE JOSEPHSON addressed the culpable mental state
provisions of HB 238. He offered a supposition. If someone spray
painted several homes and one of them turned out to be a church,
HB 238 might apply if it could be shown the individual was aware
it was a religious building. He explained that this is a
knowing crime, it cannot be committed accidentally. He stated
that while the prosecutor would have to show a substantial
probability, there is a subjective element to it that would
require awareness, not a random event. He repeated a Department
of Law staffs definition of knowingly, stating it is just
short of intentionality, and he said it requires some
forethought. He said random acts would not be prosecuted
unfairly under the "knowingly" standard and said the public
should be reassured on that point. He said these are the
fundamental aspects of HB 238 that he wanted to share.
1:41:37 PM
SENATOR TOBIN asked whether HB 238 includes indigenous sacred
monuments or sacred spaces that may reflect a different
interpretation of religion from the Western construct.
1:41:58 PM
REPRESENTATIVE JOSEPHSON replied that there would always be some
prosecutorial discretion. He said the location must be real
property used for religious education or worship. For example, a
Christian Science reading room located within a mall may meet
the criteria if the vandalism targeted that space specifically
and it is owned, leased, or used by a religious organization. He
explained that if someone tagged the entire mall and included a
Hallmark store, the Hallmark store would not meet the elements
of the crime in HB 238.
REPRESENTATIVE JOSEPHSON indicated that if an indigenous sacred
site is real property or, as referenced on page 2, subparagraph
(C)(ii), tangible personal property, then it might meet the
elements of the crime.
1:43:26 PM
SENATOR TOBIN said that when she thinks of a house of worship,
she tends to picture the Western religious institutions in which
she was raised. However, in her indigenous heritage, places such
as rocks or natural monuments, though not man-made, serve as
religious spaces. These are locations where religious practices
occur and where individuals may knowingly deface or remove
objects. She explained that this is a broader construct than the
traditional four walls and roof associated with the churches she
attended.
REPRESENTATIVE JOSEPHSON responded that he would consider a
carefully crafted amendment of the kind described to be a
friendly amendment.
1:44:29 PM
SENATOR KIEHL referred to the example of a mall containing a
church. He stated that he had diagrammed the sentence in the
bill and noted that the Dimond Center is a single piece of real
property. He questioned how vandalizing a different location on
the same property, such as the Olive Garden, would not meet the
elements of the crime, given the presence of a church in the
tower of the same property.
REPRESENTATIVE JOSEPHSON replied that if the Dimond Center were
known to be owned by a Christian denomination and widely
recognized to meet the knowingly element, then there may be a
case. He explained his interpretation of this piece, stating the
edifice must be a place of religious education or worship and
the property must be owned, leased, or used by a religious
organization. Both criteria must be met. Therefore, vandalism
must target the place of worship, not a separate business on the
same property.
1:46:19 PM
SENATOR KIEHL sought clarification about the scope of tangible
personal property under HB 238, specifically, the outer
boundaries of the language.
1:46:51 PM
REPRESENTATIVE JOSEPHSON explained how the language in HB 238
was derived. He conveyed that the House Rules Committee chair
had some hypothetical ideas related to that question, such as,
how to protect a Jewish exhibit in a museum. He noted the
difficulty in narrowly defining protections for such exhibits.
He stated that AS 11.81.900 includes the use of tangible
personal property under the definition of "property. The aim
was to protect items with religious impact though not limited to
a church, mosque, or synagogue.
1:48:14 PM
ALEXANDER SCHROEDER, Staff, Representative Andy Josephson,
Alaska State Legislature, Juneau, Alaska, responded that one
limit worth noting is the specific inclusion of tangible
personal property. He explained that the bill does not cover
intangible property, such as digital content like Facebook posts
or other digital property. He expressed his belief that this
distinction helps define an outer limit of what HB 238 proposes
to protect.
1:48:53 PM
SENATOR KIEHL said he would like to work with the sponsor to
refine the language. He raised concerns about whether the bill
would criminalize actions such as scuffing a crucifix or
handling the Koran in ways considered desecration by some
groups. He suggested a need for more precise drafting.
1:49:37 PM
REPRESENTATIVE JOSEPHSON replied that he attempted to limit the
bill's scope and gave examples. He acknowledged HB 238 might
require further refinement. He welcomed suggestions from the
committee.
1:50:52 PM
SENATOR TOBIN sought clarification on whether a knowingly
intoxicated person, who sideswipes a church van used for
community event pickups, would be liable under the Class C
felony proposed in HB 238. She stated that, based on her
interpretation, the individual might be held liable, and she
asked whether that outcome reflects the sponsor's intent.
1:51:33 PM
MR. SCHROEDER replied that interpretation is not the sponsor's
intent nor is it to criminalize such conduct under HB 238. He
explained that under the element of "knowing," there must be a
substantial probability that the person is aware they are
committing the offense. In the case of an accident, such as a
collision between two vehicles, the conduct would not meet that
threshold. He stated that an individual would need to know they
are vandalizing property belonging to a religious institution;
otherwise, he does not believe the person would have committed
an offense under this bill.
1:52:17 PM
CHAIR CLAMAN presented a hypothetical scenario involving a
church that owns several properties. He described a parcel of
land containing the church building and a parsonage where the
minister traditionally resides, as well as a house located a
mile away that is owned by the church and occupied by the
director of religious education. He asked whether a person who
knows that the house is owned by the church and knowingly spray
paints something defamatory on it, but causing less than $750 in
damages, would be culpable under the proposed legislation.
MR. SCHROEDER acknowledged that he is not an attorney but said
that, under the "knowingly" provision in HB 238, the offense
would fall under the bill if the individual knew the property
was owned by a religious institution. However, if the individual
did not know the property was affiliated with the religious
institution, the offense would not qualify. He deferred further
clarification to Ms. Meade with the Alaska Court System.
1:54:34 PM
NANCY MEADE, General Counsel, Administrative Offices, Alaska
Court System, Anchorage, Alaska, responded that she was unsure
how much clarity she could provide. She read the bill language
beginning on page 2, line 7, and explained that the real
property must include a religious school or worship building and
be owned by a religious organization.
MS. MEADE said that the question would likely be fact-specific.
She examined the elements in the hypothetical scenario as they
pertained to subparagraph (C)(i). She stated that if the house a
mile away is owned by the religious organization, and the entire
property is considered one parcel that includes a place of
religious education or worship, then it could potentially meet
the criteria in the bill. She said, however, it would likely be
a matter for legal interpretation and debate, and she could not
provide a definitive answer.
1:56:04 PM
SENATOR KAUFMAN drew attention to the language on page 2,
subparagraph (C), and questioned whether it was overly broad. He
raised a hypothetical about praying in a car or at home, which
could be considered religious use, and wondered whether damage
to such personal property might fall under HB 238 if motivated
by hostility or ill will. He expressed concern about potential
mission creep due to the proposed bill's broadness.
MR. SCHROEDER replied that he did not interpret the bill so
broadly as to include cars or private homes used for prayer. He
explained that, for the proposed bill to apply, these elements
must be met: the presence of real property, a place of religious
education or worship located on that property, and use, lease or
ownership by a religious organization or for a religious
purpose. He deferred to Ms. Meade for the court system's
interpretation.
1:58:16 PM
MS. MEADE acknowledged that the wording could be interpreted
broadly. She said there could be a prosecutor that might
consider real property used for prayer as qualifying under the
bill. She said the sponsor might want to refine the language a
little bit, noting that would be up to the sponsor's office.
1:59:20 PM
SENATOR TOBIN asked for more detail about hate crimes. She drew
attention to the word "knowingly" on page 1, line 12, and
requested further explanation about the word in the context of
religious purposes. She asked what the expectation is for
actions committed knowingly, particularly related to this bill
and religion.
MS. MEADE replied that she is not familiar with federal hate
crime law, so she cannot speak to the definition or elements of
it.
MS. MEADE explained that "knowingly" is a complex concept that
she finds fairly complicated. She explained that "intentionally"
means the person wanted the act to happen, planned for it, and
intended the outcome. "Knowingly" is just shy of that, meaning
the person knew they were going to take an action, but may not
have intended all the consequences. It involves some
aforethought and awareness of the act, such as knowing one was
desecrating a religious object or space.
2:00:59 PM
CHAIR CLAMAN shared legal and historical context about the term
"knowingly." He stated that the Alaska Criminal Code is largely
based on the Model Penal Code and the criminal code revision
passed by the legislature in 1980, which established four mental
states: intentionally, knowingly, recklessly, and with criminal
negligence. These align with the mental states outlined in the
Model Penal Code. He noted that federal crimes also use the term
"knowingly," and federal courts tend to interpret it in a manner
similar to Alaska. He clarified, however, that while there is
some overlap, state and federal statutes are not identical and
do not completely align.
2:02:35 PM
SENATOR KIEHL turned his attention to the word "desecrate." He
acknowledged that the term is already used in the context of
graves. He commented that the difference in that context is
clarity, people know what a grave is. He noted that Webster's
Dictionary defines "desecrate" as violating the sanctity of
something or profaning it, removing its sacred nature. He asked
how the Alaska Court System determines what constitutes
something as sacred or no longer sacred, and how judges instruct
juries in making that determination when the courts rely on a
dictionary definition of a word like "desecrate."
2:03:39 PM
MS. MEADE stated that she did not know the exact jury
instruction or whether Alaska has one for the definition of
"desecration" under AS 11.46.482(a). She expressed her belief
that the approach would likely not differ significantly from how
the court addresses other statutory terms. She explained that
the court might consult case law from Alaska or other
jurisdictions to determine how much damage must occur for
something to be considered desecrated. She acknowledged
uncertainty regarding the distinctions among the terms
"defaces," "damages," and "desecrates" in the statute, and
questioned whether "desecrate" is an umbrella term or an
intensifier. She stated that judges could determine the
interpretation through legal briefing and input from the parties
involved and the district attorney.
2:05:04 PM
SENATOR KIEHL discussed the term "desecrate," remarking that
every religion he is familiar with contains internal schisms.
People's beliefs within a given religion often range from strong
to deeply passionate and history shows that internal disputes
can lead to intense conflict. He recommended the legislature
craft the term carefully and precisely to avoid involving law
enforcement or prosecutors in doctrinal disagreements. He
stated, by way of example, that most adherents of Islam do not
object to a menstruating woman entering a mosque, but some
schools of thought consider that act to desecrate the space. He
emphasized that troopers should never be placed in a position of
interpreting which imam's reading or doctrine is correct. He
suggested that the legislature use caution and consider going
beyond the Webster's dictionary definition.
2:06:52 PM
CHAIR CLAMAN said that may be more of a comment for the bill
sponsor than for the court system.
2:06:55 PM
CHAIR CLAMAN announced invited testimony on HB 238.
2:07:26 PM
HEATHER BARBOUR, Member and Representative, Islamic Community of
Alaska, Anchorage, Alaska, testified by invitation in support of
HB 238. She said that she is an attorney in Anchorage and was
formerly an assistant district attorney in the Anchorage office.
MS. BARBOUR said it is vital for the committee to recognize that
vandalism of a house of worship is not the same as general
property damage or criminal mischief and should not be treated
the same in the courts. The motive and message behind the act
are different and carry a deeper emotional impact. She said the
actual extent of the damage is not the issue; it is the message
that causes harm. Vandalism to a house of worship can be just as
damaging whether the property loss is under or over $750.
Monetary damage is not always the best standard by which to
judge the effect of a property crime on its victims. She pointed
out that the legislature acknowledged this distinction in
AS 11.46.482, subsections (a)(3)(A) and (B).
MS. BARBOUR shared a personal experience. She said that her
community began construction of its mosque in 2010. She said it
was the first and only mosque in the state of Alaska. The
community suffered vandalism at the site during its
construction. There were offensive anti-Islamic messages that
were spray painted on the building. Some of the equipment was
stolen, and someone actually shot arrows into the building and
the remaining construction equipment. Although the acts were
captured on video and reported to police, the perpetrator was
never caught. She said if the individual had been caught, he
would have only faced a class B misdemeanor under current law.
She said community members cleaned up the site themselves, so
did not really incur the $750 minimum that would have been
needed to charge a felony. She emphasized the emotional damage
and fear that the individual caused and instilled in the
community never would have been acknowledged.
2:09:46 PM
MS. BARBOUR contrasted the emotional impact of the vandalism to
the physical damage caused by a recent earthquake. While the
earthquake caused more material loss, it did not make the
community feel targeted or unsafe. She emphasized that the sense
of victimization from vandalism is different. In surveillance
footage of religious property vandalism, victims often react
with fear, scanning the surroundings, rather than checking the
damage. She said the message received is clear, "you are not
wanted, you are not safe." Victims often fear the perpetrator
may still be nearby.
MS. BARBOUR asserted that such acts constitute a form of
terrorism, intended to inflict emotional trauma. The degree of
physical damage is secondary to the hate and threat behind the
act. She urged the committee to vote in favor of HB 238, which
recognizes the unique and severe nature of vandalizing religious
property. She concluded by stating that if the law protects the
dead under AS 11.46.482, then the living deserve the same
protection. She thanked the chair for the opportunity to
testify.
2:12:23 PM
LESLIE FRIED, Curator, Alaska Jewish Museum, Anchorage, Alaska,
testified by invitation in support of HB 238. She said the
museum is part of the Alaska Jewish campus and she works for
Rabbi Greenberg, Rabbi of the Orthodox Jewish organization
associated with it. She recollected an incident in 2021, shortly
before the Jewish holiday Shavuot, during which the museum was
vandalized with stickers bearing Nazi swastikas. One of the
stickers was carved through the back door. The same act was
repeated three months later. She said it was the first time she
felt terror while performing her job, and the experience
triggered panic attacks that affected her ability to work.
MS. FRIED stated that she did not know the perpetrators
motivation but suspected the individual had been influenced by
hate propaganda and conspiracy theories, which are common today.
She said antisemitism is rising globally at an alarming rate. In
the aftermath of the vandalism, the community was shocked and
fearful, resulting in a need for armed security at the campus.
2:15:21 PM
MS. FRIED expressed support for HB 238, emphasizing that it
raises awareness about the importance of recognizing intent when
determining appropriate punishment. She stated that this type of
vandalism is distinct from a case in which someone
indiscriminately spray paints several homes and one happens to
be a sacred building. She reiterated that intent is critical,
especially in the context of ideologies such as neo-Nazism. She
noted that the museum has previously been targeted with stickers
and naming attacks.
MS. FRIED pointed out that many do not realize the museum
contains sacred religious artifacts and is more than a history
museum. It is directly connected to the Alaska Jewish Campus,
where synagogue members visit, participate in discussions, and
take part in tours. She stated the museum is deeply integrated
into the religious and cultural life of the community.
2:17:37 PM
CHAIR CLAMAN opened public testimony on HB 238; finding none, he
closed public testimony.
CHAIR CLAMAN held HB 238 in committee.
SB 165-DEFENSE OF PUB. OFFICER: ETHICS COMPLAINT
2:18:00 PM
CHAIR CLAMAN announced the consideration of SENATE BILL NO. 165
"An Act relating to legal representation of public officers in
ethics complaints."
CHAIR CLAMAN said this is the third hearing of SB 165 in the
Senate Judiciary Committee. He invited Ms. Kraly to put herself
on the record to answer questions regarding the Department of
Law's position on this legislation.
2:19:05 PM
STACIE KRALY, Director, Civil Division, Department of Law,
Juneau, Alaska, expressed appreciation for the opportunity to
appear before the committee to answer questions. She noted that
the Civil Division is preparing a written position statement,
which will be distributed to the committee.
2:19:30 PM
CHAIR CLAMAN asked if it is fair to say that the written
position statement is, to some extent, in response to the
testimony of Jahna Lindemuth, former attorney general (AG),
regarding SB 165 on March 22 in the Senate Judiciary Committee.
MS. KRALY replied that is part of it, but the statement also
provides a robust explanation of the ethics process from the
Department of Law's perspective. It explains why the regulations
that have been adopted do not create a conflict or raise
concerns identified by the former AG. It provides a broader
construct of the Ethics Act and how the Department operates
within that system.
2:20:19 PM
SENATOR KAUFMAN requested a summary of the Departments position
statement, which has not been distributed yet.
MS. KRALY reviewed the underlying premise of the recently
adopted regulations concerning representation of the governor,
lieutenant governor, and attorney general when ethics complaints
are filed against them. She said regulations are not only
consistent with the Ethics Act as drafted, but also reflect a
consistent application of how the Department of Law interprets
and applies the Act. This applies both to high-level state
officials and to other state employees subject to the Ethics
Act. She stated that the Department of Law serves three primary
roles under the Act: it advises on ethics, educates on ethics,
and prosecutes ethics violations. She said the Department is now
adding, in a very limited circumstance, the role of defending
certain ethics opinions it has issued.
2:21:34 PM
MS. KRALY explained that when an executive branch employee
requests an opinion from the Department of Law on whether an
activity violates the Ethics Act, the Department's role is to
provide legal advice. That service is available to all executive
branch employees, including the governor, lieutenant governor,
attorney general, commissioners, and others. She stated that
such advice becomes a "safe harbor." If the Attorney General's
Office opines that a specific activity does not constitute an
ethics violation, that opinion can shield the employee from
prosecution if a complaint is later filed. If a complaint is
received and the individual acted according to the Department's
advice, the violation is not prosecuted. If a complaint pertains
to conduct not previously reviewed, the Department will evaluate
and prosecute the issue consistent with its prior advice and
interpretation of the Ethics Act. She noted that the Department
also provides ethics advice to the state's highest officials,
who are treated differently under the current statute.
2:23:07 PM
CHAIR CLAMAN sought confirmation that the three individuals are
the governor, lieutenant governor, and attorney general.
2:23:11 PM
MS. KRALY answered in the affirmative, stating that the
governor, lieutenant governor, and attorney general frequently
make inquiries to the Department's designated ethics attorney.
They often pose hypothetical scenarios, asking whether a
particular situation would create a problem under the Ethics
Act, and the Department provides advice accordingly.
MS. KRALY explained the difference between these three high-
ranking individuals and a commissioner or other employee. The
Department does not prosecute ethics complaint cases against
those three, rather, those complaints are referred to the
Personnel Board. The Personnel Board then hires outside counsel
to prosecute the matter on behalf of the State. She explained
that the new regulation allows the Department to defend the
advice it previously provided or to defend the actions of the
governor, lieutenant governor, or attorney general if those
actions were based on the Departments advice. She noted that
the obligation to represent these high-level officials is not
absolute; it must serve the public interest. A determination
must be made that the activity in question was conducted in
reliance on the Department's advice or consistent with it. If it
was not, the Department would decline representation, and the
official would be required to hire private legal counsel to
address the complaint. She said this broadly explains the
Departments position and how it assesses and advises on ethics
matters.
2:24:57 PM
SENATOR KAUFMAN said the byproduct of your position seems to
incentivize legal consultation on ethics questions. He stated
that, provided the governor, lieutenant governor, or attorney
general followed the advice given, the subsequent defense would
rely on that advice rather than the incident itself.
MS. KRALY replied that is exactly right. She expressed her
belief that this framework encourages the governor, lieutenant
governor, and attorney general to seek legal advice from the
Department. She explained that if an ethics complaint is filed,
the Department does not have authority to screen out the
complaint because it does not prosecute those three officials.
Instead, the complaint is referred to the Personnel Board, which
has that screening role. If the complaint proceeds, the
Department may defend its advice, either the specific advice
given in that case or advice reflected in prior opinions issued
by the Department. She said it may be that the official was
engaged in activity that had already been reviewed and deemed
not to violate the Ethics Act, and that such prior advice could
be relied upon.
2:26:29 PM
CHAIR CLAMAN expressed his belief that the new regulation raises
concerns about public transparency. He stated that, for example,
if he were to ask how many ethics complaints had been received
against the governor, lieutenant governor, or attorney general
since the new regulation was adopted, his assumption is that the
Department's response would be that it is a confidential ethics
matter and that information could not be disclosed.
MS. KRALY replied that she believes that is correct and that
ethics complaints are confidential under state law. She
expressed her belief that, pursuant to statute, identifying how
many ethics complaints have been filed, screened in, or screened
out is not public information.
2:27:20 PM
CHAIR CLAMAN sought confirmation that this would also have been
true under what he referred to as the Sullivan-era structure for
handling ethics complaints against the governor, lieutenant
governor, or attorney general.
MS. KRALY expressed her belief that is correct.
CHAIR CLAMAN raised a challenge with the current structure. He
said suppose the governor asks the Attorney General's Office if
he may attend a dinner. The AG's Office responds with advice
indicating the governor may attend. If someone later files an
ethics complaint related to that dinner, the Attorney General's
Office would then defend its own advice by stating that the
governor acted in accordance with its guidance. As a result, the
attorney general is using state resources to defend advice it
issued.
CHAIR CLAMAN drew a comparison of this with the Sullivan-era
structure, under which an ethics complaint against the governor
would result in the hiring of independent counsel. In that
instance, the governor would inform the independent attorney
that he had relied on the attorney general's advice. The
independent attorney would then contact the Department and
confirm whether the advice had been issued. Upon confirmation,
the attorney would defend the governor on the basis of that
advice.
CHAIR CLAMAN pointed out that, under the new regulation, the
Attorney General's Office serves both an advisory and defensive
role, which may reduce transparency compared to a system where
independent counsel defends these three officials.
2:29:23 PM
MS. KRALY expressed uncertainty about the chair's concern that
the new regulation reduces transparency. She noted that all
ethics complaints against the governor, lieutenant governor, and
attorney general are referred to the Personnel Board regardless
of whether advice is defended by the AG's Office or outside
counsel. The AG's Office does not screen those complaints, but
it does defend its advice. She said the Personnel Board
adjudicates that decision.
2:30:05 PM
MS. KRALY explained the rationale behind the new regulation and
why it has been promulgated. She contended that in an era of
heightened scrutiny, there is the possibility of numerous ethics
complaint filings against these top officials. She emphasized
that under the prior construct, these officials had to pay for
private counsel, which is expensive, then seek reimbursement
later, assuming they were found not in violation. She stated
that the centralized handling of ethics issues in the Civil
Division makes the process more efficient. She emphasized that
having in-house, ethics counsel who understand all prior advice
and decisions, ensures a streamlined and cost-effective defense
before the Personnel Board. She acknowledged that the Personnel
Board may still find a violation, but the process is faster and
less burdensome on State resources. She said it is a disservice
and disincentive to serve if officials must hire private counsel
for every ethics complaint, especially frivolous ones, due to
lack of complaint screening. She reiterated two points: the
importance of defending the Department's advice and avoiding
personal financial burdens on elected or appointed officials to
defend ethics complaints that could be frivolous.
2:32:48 PM
CHAIR CLAMAN compared the Department of Law's request to
continue defending the governor with the lack of comparable
protections for legislators. He noted that members of the
legislature do not receive the same support the Department seeks
for the governor, lieutenant governor, and attorney general,
such as relief from the high cost of hiring independent counsel.
He stated that although the director articulated the rationale
clearly, it raises a question of priority: if a governor is
found not to have committed a violation and submits for
reimbursement, the state pays the cost, but no state staff time
or resources are spent on defense. However, under the current
system, the Department's staff and daytime resources are spent
defending the governor on complaints that could arguably be
referred to outside counsel.
CHAIR CLAMAN referenced a troubling discussion in the Finance
Committee, where members asked how murders in rural Alaska are
being addressed and what the public safety implications are. He
expressed concern that the Department is dedicating valuable
staff time to handling ethics complaints against the governor,
while core public safety responsibilities, such as court
processes, are sidetracked. He emphasized that although the
Department provides legal advice with the hope that the governor
follows it, the use of in-house staff to defend against ethics
complaints raises important questions.
2:34:52 PM
SENATOR KAUFMAN remarked that, in considering what is
appropriate for the governor versus a legislator, one
distinction is that the governor represents the entire state. He
is involved in every statewide issue, making the office a
broader and more prominent target. He noted that his observation
was offered as a general comment based on personal perspective.
2:35:35 PM
SENATOR KIEHL sought clarification about the existing
regulation. He asked whether the governor, lieutenant governor,
or attorney general must have specifically requested advice from
the Department in order to qualify for public representation if
an ethics complaint is later filed against them.
2:35:55 PM
MS. KRALY replied if they had sought advice, inquired about
prior opinions, or relied upon prior opinions, that would
indicate a public interest. If they were relying upon that
advice, the issue of whether or not they actually sought advice,
is not determinative of whether or not the Department would
defend them. Each situation would be evaluated on a case-
specific basis to determine whether the public interest standard
was satisfied. If it was, the Department would provide
representation; if not, the Department would decline.
MS. KRALY explained that these high-ranking officials, like many
others, ask for ethics advice all of the time. The Department
regularly provides ethics guidance to the governor, lieutenant
governor, attorney general, commissioners, and other state
employees. She stated that even she asks for ethics advice. She
described it as a standard and expected part of their roles.
2:37:08 PM
SENATOR KIEHL sought confirmation that if a high-level official
asked for advice, then yes, they would get a public defense. If
they did not ask for advice, then maybe they might qualify.
MS. KRALY replied, they may; it would depend on the
circumstances.
SENATOR KIEHL expressed concern that there may be insufficient
incentive for officials to seek ethics advice in advance if they
might still qualify for a public defense regardless.
SENATOR KIEHL stated that he was somewhat confused. He asked
whether the Personnel Board has acted capriciously and
questioned whether the Department's current approach suggests a
lack of confidence in the Board's review process. He further
asked if that perception is sufficient to justify dedicating
significant departmental resources to defend against what are
seen as weaponized ethics complaints.
2:38:08 PM
MS. KRALY replied that this is not an indictment of the
Personnel Board. It is recognition that every other executive
branch employee who seeks and gets ethics advice, receives safe
harbor from a complaint. In contrast, the governor, lieutenant
governor, and attorney general do not receive that same
protection. Even though complaints filed against them are
automatically referred, there is no screening process. She
emphasized that this is not a criticism of the Personnel Board's
decisions but an attempt to level the playing field by affording
the same protections to the state's highest officials that are
given to all other executive branch employees.
MS. KRALY addressed the chair's concerns about resource
allocation. She explained that the Department of Law comprises
two divisions: Civil and Criminal. The Civil Division handles
the Ethics Act, with a designated attorney advising on all
ethics matters, including accepting gifts or meals and
disclosure requirements. She clarified that the Civil Division
does not handle the public safety components of the entire
state. Ethics guidance is a duty of the Civil Division and does
not detract from its other responsibilities. She added that the
division also manages conflicts, screening, and due process
safeguards to prevent any appearance of partiality in
representing agencies or individuals.
MS. KRALY reiterated that the Departments position involves two
main points:
- creating a level playing field so that the governor,
lieutenant governor, and attorney general receive similar
protections under the Ethics Act as other executive branch
employees.
- reducing the cost burden caused by potential weaponization of
ethics complaints against these high-level officials.
2:41:06 PM
SENATOR KIEHL sought clarification about state employees who did
not seek prior ethics advice, asking whether the Attorney
General's Office would defend those employees against an ethics
complaint.
MS. KRALY replied that the Department would serve as the
prosecutor in that context. The Department would evaluate
whether the activity, as described in the complaint, was
consistent with prior advice or constituted a violation of the
Ethics Act. If an issue was identified, the Department would
prosecute the case, evaluate it, and issue an opinion. She
stated that employees benefit from prior opinions and advice
when they ask for it. The Department provides Ethics Act
training across the state and encourages all employees to ask
questions, regardless of how minor they may seem. The Civil
Division will provide an answer, and the employee may rely on
that guidance going forward.
2:42:17 PM
SENATOR KIEHL observed that this framework does not create
parity, but rather provides a deferential benefit to the
governor, lieutenant governor, and attorney general. He
expressed that he has not heard concern about the Personnel
Board itself, nor seen a great shortage of candidates. He
expressed his understanding that SB 165 proposes reimbursement
for legal costs if the ethics complaint brought before the
Personnel Board against a high-level official is dismissed,
meaning those officials would not bear the expense if cleared.
He emphasized that when the question centers on whether one of
these three officials acted in personal interest rather than
public interest, that distinction is crucial. A state employee
or commissioner accused of acting in personal interest may be
required to defend themselves at their own expense.
2:43:16 PM
CHAIR CLAMAN expressed his understanding that there is no
circumstance in which the Department would represent a State
employee in an ethics complaint. He described a scenario in
which the Department receives a complaint and makes a
prosecutorial decision whether to proceed. The Department may
choose not to prosecute if it determines the conduct falls
within the scope of its prior advice. In such a case, the
Department may conclude there is no violation and decline to
move forward. However, should the Department proceed, it would
not under any circumstance represent the State employee because
the Department is the prosecutor.
MS. KRALY affirmed that the Department could not simultaneously
represent and prosecute the State employee in the same
proceeding.
2:44:30 PM
CHAIR CLAMAN explained that the new regulation involves a
distinction: unlike ordinary State employees, who cannot be
represented by the Department in an ethics complaint, the three
high-ranking officials may receive such representation. Because
the Personnel Board, rather than the Department, prosecutes
these complaints, the regulation provides these officials a
benefit not available to other State employees.
MS. KRALY framed her position differently, reasoning that in
these cases, the Department would be defending its prior advice.
If the conduct at issue was in the public interest and
consistent with the Department's guidance, then the governor,
lieutenant governor, or attorney general may be represented by
the Department. She emphasized that this is the same benefit
State employees receive when they obtain advice and rely on a
safe harbor.
MS. Kraly further explained that for regular State employees, if
they have a safe harbor, the complaint is screened out, and no
proceeding occurs. They do not need an attorney as the matter
does not advance. By contrast, for the three high-ranking
officials, even if the complaint is frivolous and they have a
safe harbor, the Personnel Board must still process it. The
prosecutor may not accept the Department's prior advice.
Therefore, these officials do not receive the same benefit as
other State employees. She contended that it is not an apples-
to-apples comparison.
2:46:14 PM
CHAIR CLAMAN highlighted that though the governor is not
required to seek advice from the Department, the Department
might choose to defend the governor based on advice given years
earlier to someone else. He emphasized that State employees do
not receive that same benefit. Only the governor, lieutenant
governor, and attorney general receive a State-funded defense in
such cases.
2:46:57 PM
MS. KRALY disputed that State employees do not receive the same
benefit. She explained that if the Department previously opined
that the activity was not a violation, it would screen out the
complaint on that basis.
2:47:10 PM
CHAIR CLAMAN asserted the notion that the prosecutor provides
protection to the defendant is marginally credible. He noted
that while an employee is not required to retain counsel, from
his experience in private practice, he would advise it is
beneficial to do so. He said the attorney would advocate with
the prosecutor on behalf of the client. He asked whether a State
employee has the right to hire private counsel.
2:48:17 PM
MS. KRALY replied, absolutely.
2:48:23 PM
CHAIR CLAMAN asked whether the Civil Division receives calls
from private attorneys representing public employees and whether
these attorneys ask the division not to prosecute.
MS. KRALY responded, potentially yes, but emphasized complaints
are not filed against the individual directly. Instead, they are
submitted to the Department, which conducts an initial
screening. If the Department determines there is no violation
based on advice previously issued, it dismisses the complaint
without notifying the employee. If the Civil Division finds no
safe harbor exists and concludes there is an ethics issue, then
the employee is notified. At that point, the employee may choose
to hire private counsel. She reiterated that the process is
structured so that complaints are screened before reaching the
employee.
2:49:36 PM
CHAIR CLAMAN asked whether a public employee is notified if an
ethics complaint is filed and the Department concludes there is
no ethics violation.
MS. KRALY replied that she did not know the answer well enough
to provide it on the record and offered to follow up with the
committee.
2:50:20 PM
SENATOR TOBIN raised a question pertaining to individuals
appointed to State boards and commissions. She sought
confirmation that these individuals would not be eligible for
representation from the Department of Law if an ethics complaint
were prosecuted. Instead, those individuals would need to get
independent counsel.
2:51:04 PM
MS. KRALY replied, no, explaining the intent of the Ethics Act
is to promote the use of the safe harbor provision. The Act
encourages board members, employees, and others to contact the
Ethics Office with questions in order to receive guidance, such
as confirmation that a certain action is permissible.
MS. KRALY stated that if the Ethics Office advises someone not
to take a certain action and the person proceeds anyway, that
may result in a problem, and the individual would then need to
secure their own attorney. In such a case, the Department may
pursue the matter. Conversely, if the individual asks whether an
action is permissible and receives a Department safe harbor
response, the matter would be screened out and dismissed.
MS. KRALY emphasized that failure to seek advice carries risk.
While the action might still be found acceptable and screened
out, without the safe harbor, there is no guarantee. She
explained that the Department provides ethics training
throughout the State and uses its website to inform individuals
about how to submit inquiries. She stated that the purpose is to
continue encouraging and incentivizing the use of safe harbor
provisions, not only for employees and board members but also
for the governor, lieutenant governor, and attorney general.
2:52:37 PM
SENATOR TOBIN said her question had been answered, specifically,
individuals appointed to State boards and commissions would not
receive representation from the Department if an ethics
complaint were prosecuted. They would instead need to get
independent counsel.
2:52:46 PM
CHAIR CLAMAN agreed that one purpose of the Ethics Act is to
encourage individuals to seek advice and conform their conduct
to the requirements in ethics law.
CHAIR CLAMAN asked whether another feature of the Ethics Act is
that, when individuals do not comply, there are mechanisms to
determine noncompliance and impose consequences. He noted that
the Ethics Act is multipurpose in this way.
MS. KRALY replied, absolutely, yes.
CHAIR CLAMAN found no further questions and thanked the director
for testifying.
2:53:28 PM
[CHAIR CLAMAN held SB 165 in committee.]
2:54:10 PM
There being no further business to come before the committee,
Chair Claman adjourned the Senate Judiciary Standing Committee
meeting at 2:54 p.m.