Legislature(2005 - 2006)BELTZ 211
04/26/2005 03:30 PM Senate STATE AFFAIRS
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 182 | TELECONFERENCED | |
| + | HB 183 | TELECONFERENCED | |
| + | HB 210 | TELECONFERENCED | |
| + | HB 215 | TELECONFERENCED | |
| SB 186 | |||
| SB 187 | |||
| *+ | SB 127 | TELECONFERENCED | |
| = | HB 127 | ||
ALASKA STATE LEGISLATURE
SENATE STATE AFFAIRS STANDING COMMITTEE
April 26, 2005
3:35 p.m.
MEMBERS PRESENT
Senator Gene Therriault, Chair
Senator Thomas Wagoner, Vice Chair
Senator Charlie Huggins
Senator Bettye Davis
Senator Kim Elton
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 182
"An Act authorizing the Department of Military and Veterans'
Affairs to establish and maintain Alaskan veterans' cemeteries;
and establishing the Alaska veterans' cemetery fund in the
general fund."
MOVED SB 182 OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 183(JUD) am
"An Act relating to the use of campaign contributions for shared
campaign activity expenses and to reimbursement of those
expenses; and amending the definition of 'contribution' in
regard to sharing fundraising lists between candidates and
political parties without compensation."
MOVED SCS CSHB 183(STA) OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 210(JUD)
"An Act relating to blood testing of certain persons alleged to
have committed certain offenses directed toward peace officers
or emergency workers."
MOVED CSHB 210(JUD) OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 215(FIN)
"An Act relating to the investment responsibilities of the
Alaska Permanent Fund Corporation; relating to regulations
proposed and adopted by the Board of Trustees of the Alaska
Permanent Fund Corporation and providing procedures for the
adoption of regulations by the board; and providing for an
effective date."
HEARD AND HELD
SENATE BILL NO. 186
"An Act relating to the Alaska Executive Branch Ethics Act."
MOVED CSSB 186(STA) OUT OF COMMITTEE
SENATE BILL NO. 187
"An Act relating to legislative ethics open meetings guidelines,
to the public members of the Select Committee on Legislative
Ethics, to alternate members of the legislative subcommittees,
to advisory opinions, and to confidential information and
proceedings regarding legislative ethics complaints and
investigations."
MOVED CSSB 187(STA) OUT OF COMMITTEE
SENATE BILL NO. 127
"An Act prohibiting a public officer from taking official action
regarding a matter in which the public officer has a significant
financial interest; and defining 'official action' for purposes
of the chapter generally referred to as the Executive Branch
Ethics Act."
MOVED SB 127 OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 127(FIN) am
"An Act relating to service in the peace corps and members of
the United States Olympic Team as allowable absences from the
state for purposes of eligibility for permanent fund dividends
and to the period for filing an application for a permanent fund
dividend; authorizing the Department of Revenue to issue
administrative orders imposing sanctions for certain
misrepresentations or other actions concerning eligibility for a
permanent fund dividend and providing for administrative appeal
of those orders; and providing for an effective date."
MOVED CSHB 127(FIN) am OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: SB 182
SHORT TITLE: STATE VETERANS' CEMETARY & FUND
SPONSOR(s): SENATOR(s) HUGGINS
04/19/05 (S) READ THE FIRST TIME - REFERRALS
04/19/05 (S) STA, FIN
04/26/05 (S) STA AT 3:30 PM BELTZ 211
BILL: HB 183
SHORT TITLE: CAMPAIGN FINANCE: SHARED EXPENSES/LISTS
SPONSOR(s): REPRESENTATIVE(s) HAWKER
02/28/05 (H) READ THE FIRST TIME - REFERRALS
02/28/05 (H) STA, JUD
03/29/05 (H) STA AT 8:00 AM CAPITOL 106
03/29/05 (H) Moved CSHB 183(STA) Out of Committee
03/29/05 (H) MINUTE(STA)
03/30/05 (H) STA RPT CS(STA) 2DP 2NR
03/30/05 (H) DP: ELKINS, SEATON;
03/30/05 (H) NR: GARDNER, RAMRAS
04/06/05 (H) JUD AT 1:00 PM CAPITOL 120
04/06/05 (H) <Bill Hearing Postponed>
04/13/05 (H) JUD AT 1:00 PM CAPITOL 120
04/13/05 (H) Moved CSHB 183(JUD) Out of Committee
04/13/05 (H) MINUTE(JUD)
04/14/05 (H) JUD RPT CS(JUD) 6DP 1AM
04/14/05 (H) DP: GRUENBERG, KOTT, DAHLSTROM,
COGHILL, ANDERSON, MCGUIRE;
04/14/05 (H) AM: GARA
04/19/05 (H) TRANSMITTED TO (S)
04/19/05 (H) VERSION: CSHB 183(JUD) AM
04/20/05 (S) READ THE FIRST TIME - REFERRALS
04/20/05 (S) STA, JUD
04/26/05 (S) STA AT 3:30 PM BELTZ 211
BILL: HB 210
SHORT TITLE: BLOODBORNE PATHOGEN TESTING
SPONSOR(s): REPRESENTATIVE(s) MCGUIRE
03/07/05 (H) READ THE FIRST TIME - REFERRALS
03/07/05 (H) JUD, FIN
03/30/05 (H) JUD AT 1:00 PM CAPITOL 120
03/30/05 (H) Moved CSHB 210(JUD) Out of Committee
03/30/05 (H) MINUTE(JUD)
04/01/05 (H) JUD RPT CS(JUD) 6DP
04/01/05 (H) DP: KOTT, ANDERSON, DAHLSTROM, GARA,
GRUENBERG, MCGUIRE
04/12/05 (H) FIN AT 1:30 PM HOUSE FINANCE 519
04/12/05 (H) Moved CSHB 210(JUD) Out of Committee
04/12/05 (H) MINUTE(FIN)
04/13/05 (H) FIN RPT CS(JUD) 6DP 1NR
04/13/05 (H) DP: KELLY, HOLM, STOLTZE, HAWKER,
FOSTER, CHENAULT;
04/13/05 (H) NR: WEYHRAUCH
04/13/05 (H) TRANSMITTED TO (S)
04/13/05 (H) VERSION: CSHB 210(JUD)
04/14/05 (S) READ THE FIRST TIME - REFERRALS
04/14/05 (S) STA, JUD
04/26/05 (S) STA AT 3:30 PM BELTZ 211
BILL: HB 215
SHORT TITLE: PERM FUND CORP. INVESTMENTS/REGULATIONS
SPONSOR(s): REPRESENTATIVE(s) ROKEBERG BY REQUEST
03/09/05 (H) READ THE FIRST TIME - REFERRALS
03/09/05 (H) STA, FIN
04/12/05 (H) STA AT 8:00 AM CAPITOL 106
04/12/05 (H) Moved Out of Committee
04/12/05 (H) MINUTE(STA)
04/13/05 (H) STA RPT 5DP 1NR
04/13/05 (H) DP: GARDNER, LYNN, ELKINS, RAMRAS,
SEATON;
04/13/05 (H) NR: GATTO
04/14/05 (H) FIN AT 1:30 PM HOUSE FINANCE 519
04/14/05 (H) Moved CSHB 215(FIN) Out of Committee
04/14/05 (H) MINUTE(FIN)
04/15/05 (H) FIN RPT CS(FIN) 4DP 5NR
04/15/05 (H) DP: HAWKER, FOSTER, MEYER, CHENAULT;
04/15/05 (H) NR: CROFT, MOSES, HOLM, STOLTZE, KELLY
04/19/05 (H) BEFORE THE HOUSE
04/19/05 (H) WEYHRAUCH NOTICE OF RECONSIDERATION
WITHDRAWN
04/20/05 (H) TRANSMITTED TO (S)
04/20/05 (H) VERSION: CSHB 215(FIN)
04/21/05 (S) READ THE FIRST TIME - REFERRALS
04/21/05 (S) STA, FIN
04/26/05 (S) STA AT 3:30 PM BELTZ 211
BILL: SB 186
SHORT TITLE: EXECUTIVE BRANCH ETHICS
SPONSOR(s): SENATOR(s) SEEKINS
04/22/05 (S) READ THE FIRST TIME - REFERRALS
04/22/05 (S) STA, JUD
04/26/05 (S) STA AT 3:30 PM BELTZ 211
BILL: SB 187
SHORT TITLE: LEGISLATIVE ETHICS/MEETINGS
SPONSOR(s): SENATOR(s) SEEKINS
04/22/05 (S) READ THE FIRST TIME - REFERRALS
04/22/05 (S) STA, JUD
04/26/05 (S) STA AT 3:30 PM BELTZ 211
BILL: SB 127
SHORT TITLE: EXEC. BRANCH ETHICS: FINANCIAL INTERESTS
SPONSOR(s): SENATOR(s) FRENCH
03/03/05 (S) READ THE FIRST TIME - REFERRALS
03/03/05 (S) STA, JUD
04/26/05 (S) STA AT 3:30 PM BELTZ 211
BILL: HB 127
SHORT TITLE: PFD:PEACE CORPS/OLYMPIAN/SANCTIONS
SPONSOR(s): REPRESENTATIVE(s) MCGUIRE
02/04/05 (H) READ THE FIRST TIME - REFERRALS
02/04/05 (H) STA, FIN
03/03/05 (H) STA AT 8:00 AM CAPITOL 106
03/03/05 (H) Heard & Held
03/03/05 (H) MINUTE(STA)
03/05/05 (H) STA AT 9:30 AM CAPITOL 106
03/05/05 (H) Moved CSHB 127(STA) Out of Committee
03/05/05 (H) MINUTE(STA)
03/09/05 (H) STA RPT CS(STA) NT 5DP
03/09/05 (H) DP: LYNN, GATTO, RAMRAS, GRUENBERG,
SEATON
03/29/05 (H) FIN AT 1:30 PM HOUSE FINANCE 519
03/29/05 (H) -- Meeting Canceled --
03/30/05 (H) FIN AT 9:00 AM HOUSE FINANCE 519
03/30/05 (H) Moved CSHB 127(FIN) Out of Committee
03/30/05 (H) MINUTE(FIN)
04/01/05 (H) FIN RPT CS(FIN) NT 7DP 1NR
04/01/05 (H) DP: HAWKER, STOLTZE, JOULE, CROFT,
MOSES, FOSTER, MEYER;
04/01/05 (H) NR: KELLY
04/01/05 (H) TRANSMITTED TO (S)
04/01/05 (H) VERSION: CSHB 127(FIN) AM
04/04/05 (S) READ THE FIRST TIME - REFERRALS
04/04/05 (S) STA, FIN
04/21/05 (S) STA AT 3:30 PM BELTZ 211
04/21/05 (S) Heard & Held
04/21/05 (S) MINUTE(STA)
04/26/05 (S) STA AT 3:30 PM BELTZ 211
WITNESS REGISTER
SHALON SZYMANSKE,
Staff to Representative Lesil McGuire
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Introduced CSHB 210
EVERT ROBINS, President
Anchorage Police Department Employees Association
Anchorage, AK
POSITION STATEMENT: Supported HB 210
DEBORAH GRUNDMAN,
Staff to Senator Charlie Huggins
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Introduced SB 182 for sponsor
JOYCE ROKEBERG
Fairbanks, AK
POSITION STATEMENT: Supported SB 182
JERRY BEAL, Director
Department of Military & Veterans
Affairs
PO Box 5800
Ft. Richardson, AK 99505-0800
POSITION STATEMENT: Supported SB 182
JUNE CHANCE,
Administrative Services Manager,
Department of Military & Veterans
Affairs
PO Box 5800
Ft. Richardson, AK 99505-0800
POSITION STATEMENT: Supported SB 182
JULIE LUCKY,
Staff to Representative Mike Hawker
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Introduced HB 183 for sponsor
BROOKE MILES, Executive Director
Department of Administration
Alaska Public Offices Commission (APOC),
2221 E. Northern Lights, Rm 128
Anchorage, AK 99508-4149
POSITION STATEMENT: Commented on HB 183
REPRESENTATIVE NORMAN ROKEBERG
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of HB 215
MIKE BURNS, Chief Executive Officer
Alaska Permanent Fund Corporation
Department of Revenue
PO Box 110400
Juneau, AK 99811-0400
POSITION STATEMENT: Testified on CSHB 215
SENATOR RALPH SEEKINS
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of SB 186 and SB 187
JOYCE ANDERSON, Administrator
Select Committee on Legislative Ethics
P.O. Box 101468
Anchorage, AK 99510-1468
POSITION STATEMENT: Discussed suggested changes on SB 187
MERLE THOMPSON,
Susitna Valley, AK
POSITION STATEMENT: Expressed the view that SB 187 addresses
the wrong issue
SENATOR HOLLIS FRENCH
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor SB 127
ACTION NARRATIVE
CHAIR GENE THERRIAULT called the Senate State Affairs Standing
Committee meeting to order at 3:35:06 PM. Present were Senators
Elton, Wagoner, Davis, Huggins, and Chair Therriault.
CSHB 210(JUD)-BLOODBORNE PATHOGEN TESTING
CHAIR GENE THERRIAULT announced HB 210 to be up for
consideration.
3:35:43 PM
SHALON SZYMANSKE, Staff to Representative Lesil McGuire,
explained the bill expands the current policies and procedures
for testing for blood borne pathogen exposure to include peace
officers, firefighters, emergency medical technicians and mobile
paramedics.
The bill sets out procedures to determine whether a first
responder was exposed to blood borne pathogens while working. It
provides means to protect the identity of the person being
tested as well as procedures for court ordered testing in the
event a person refuses to submit to a test.
3:37:32 PM
CHAIR THERRIAULT asked whether the bill deals with body fluids
in addition to blood.
MS. SZYMANSKE said it does.
CHAIR THERRIAULT asked about the new Section 5.
MS. SZYMANSKE said that section adds departments and
municipalities.
3:38:41 PM
SENATOR THOMAS WAGONER asked whether contract employees were
given any consideration.
MS. SZYMANSKE replied she didn't believe the bill addressed that
issue.
SENATOR WAGONER pointed out that other employees might be
exposed so the scope might not be broad enough.
MS. SZYMANSKE assured him the sponsor would be willing to make
additions.
SENATOR WAGONER said he wasn't going to offer an amendment, he
was simply asking the question.
CHAIR THERRIAULT questioned whether the language protecting
contractors is covered by the Section 7 repealer. Referencing
the word "employed" on page 7, line 7 he said he wasn't sure
whether it would be construed globally.
MS. SZYMANSKE responded she didn't have an answer.
3:42:36 PM
CHAIR THERRIAULT questioned whether Section 6 was drafted to
cover regular salaried employees and contract employees.
SENATOR WAGONER said prisons have all types of people who are
exposed to prisoners and could therefore be exposed the same as
the guards. He suggested that contract employees certainly
shouldn't be excluded.
3:43:25 PM
SENATOR KIM ELTON said it appears as though a distinction is
made for municipalities, but not necessarily for the state. The
way he reads it, a contract employee may not be covered. He
agreed with Senator Wagoner that everyone who may be put in a
situation that may result in a health question like this ought
to be covered.
CHAIR THERRIAULT mentioned a number of contract employees and
said he believes they should be covered.
3:45:13 PM
EVERT ROBINS, President, Anchorage Police Department Employees
Association, stated strong support for the bill.
3:47:35 PM
CHAIR THERRIAULT asked if he had an opinion on whether contract
employees should be covered.
MR. ROBINS said it's a good idea but the association really
looks at this as a bill for first responders.
SENATOR CHARLIE HUGGINS asked if he had any volunteer policemen
that participate, but aren't employed.
MR. ROBINS said there is a citizen academy in Anchorage, but
they try not to use those people as first responders.
SENATOR HUGGINS asked how he would suggest those individuals be
treated.
MR. ROBINS replied when they're riding with him they wouldn't be
first responders.
3:49:38 PM
SENATOR KIM ELTON asked if it's correct that the bill only
provides for the process that would be used for adult or
juvenile offenders and not for a victim. He could see the
benefit for a first responder in a narrow set of cases in which
the first responder may be exposed to someone who is a victim
and may become an offender.
MR. ROBINS replied the bill is for defendants. Victims are
typically compliant and volunteer samples, but defendants
frequently deny testing.
CHAIR THERRIAULT stated that in the interest of time he'd be
willing to move the bill on to the Judiciary Committee with the
recommendation to amend to include contract workers. He found no
objection.
3:51:28 PM
SENATOR WAGONER motioned to report CSHB 210(JUD) from committee
with attached fiscal notes and individual recommendations.
CHAIR THERRIAULT announced that without objection, it was so
ordered.
SB 182-STATE VETERANS' CEMETARY & FUND
CHAIR GENE THERRIAULT announced SB 182 to be up for
consideration.
3:51:59 PM
DEBORAH GRUNDMAN, Staff to Senator Huggins, explained that SB
182 would put in place the mechanism for the Department of
Military and Veterans' Affairs (DMVA) to establish and maintain
veterans' cemeteries in the state.
3:53:28 PM
SENATOR CHARLIE HUGGINS, Sponsor, described SB 182 as a forward-
looking approach. It would create a framework whereby DMVA and
local communities could work together and find land that would
become state land and a future potential site for a state
veterans' cemetery. Based on demographics, he suggested that
Fairbanks would be a likely starting point.
SENATOR KIM ELTON questioned whether there was a difference
between SB 182 and the House bill.
SENATOR HUGGINS replied he thought Representative Guttenberg had
a bill, but he wasn't sure whether it was the same or different.
He advised that he has worked on this issue for several years.
SENATOR DAVIS noted she had a copy of the House bill.
3:58:02 PM
JOYCE ROKEBERG, Fairbanks, reported that her late husband also
had a dream for a veterans' cemetery in the Interior. She made
the point that it is difficult for family and friends to visit
cemeteries that are located a long distance from home.
4:00:58 PM
JERRY BEAL, Director, Department of Military and Veteran
Affairs, testified that SB 182 is more substantial and
comprehensive than the House bill. He stated that the department
certainly supports the idea of having an Interior veterans'
cemetery. During the recent American Legion Convention in
Kodiak, a resolution was passed supporting an Interior cemetery
for state veterans.
4:02:49 PM
JUNE CHANCE, Administrative Services Manager, Department of
Military & Veterans Affairs, stated support for the bill.
There was no further testimony.
CHAIR THERRIAULT noted the indeterminate fiscal note and the
Finance Committee referral. He asked for the will of the
committee.
SENATOR THOMAS WAGONER motioned to report SB 182 from committee
with individual recommendations and attached fiscal note. There
being no objection, it was so ordered.
4:04:29 PM
CHAIR THERRIAULT announced Vice-Chair Wagoner would step in as
chair so that he could attend a different meeting.
CSHB 183(JUD)-CAMPAIGN FINANCE: SHARED EXPENSES/LISTS
VICE-CHAIR THOMAS WAGONER announced CSHB 183 to be up for
consideration.
4:05:56 PM
JULIE LUCKY, Staff to Representative Mike Hawker, explained that
HB 183 makes several changes to the Alaska Public Offices
Commission (APOC) statutes regarding campaign finances. It
clarifies that reimbursement for a shared expense isn't an
illegal campaign-to-campaign contribution. It also clarifies
that sharing a fundraising list by a party or candidate to a
party or candidate isn't an illegal campaign-to-campaign
contribution.
4:07:04 PM
VICE-CHAIR WAGONER noted the proposed amendment.
SENATOR CHARLIE HUGGINS asked about the catalyst for the bill.
MS. LUCKY said there was no particular incident. APOC
regulations are silent on shared fund raising and this provides
clarification.
4:09:12 PM
VICE-CHAIR WAGONER asked for a motion to adopt the proposed
amendment.
SENATOR BETTYE DAVIS moved Amendment 1. There being no
objection, Amendment 1 was adopted.
AMENDMENT 1
TO: CSHB 183(JUD) am
Page 2, line 20, following "within"
Delete "five working"
Insert "seven"
4:10:09 PM
BROOKE MILES, Executive Director, Alaska Public Offices
Commission (APOC), stated that the commission understands why
this may be useful to candidates who share a campaign activity.
APOC suggested the amendment and with its passage APOC has no
further concern with the bill.
4:11:29 PM
VICE-CHAIR WAGONER closed public testimony and asked for the
will of the committee.
4:11:57 PM
SENATOR KIM ELTON motioned to report SCS CSHB 183(STA) and
attached fiscal notes from committee with individual
recommendations. There being no objection, it was so ordered.
CSHB 215(FIN)-PERM FUND CORP. INVESTMENTS/REGULATIONS
VICE-CHAIR THOMAS WAGONER announced CSHB 215(FIN) to be up for
consideration.
4:13:18 PM
REPRESENTATIVE NORMAN ROKEBERG, Sponsor, reported the bill
speaks to the investments of the Alaska Permanent Fund
Corporation that are guided by a statutory list, which includes
restrictions and asset caps for particular investment
categories. He asserted that because of the statutory
restrictions, the fund may be taking greater risks without the
promise of higher returns.
Modern investment theory focuses on the combined risk of an
entire portfolio rather than the risk of each asset type.
Therefore, he said, it's important to diversify a portfolio
among assets that aren't correlated in performance. He suggested
that such diversification is more likely to result in a positive
return for the fund while reducing the overall risk.
In the past the legislature has changed the statutes to address
circumstances such as reaching investment caps that resulted
from investment appreciation. At one point the legislature
introduced a "basket clause" to allow more flexibility in the
portfolio, but it leaves little opportunity to invest in new
asset types or for growth in existing assets.
He mentioned a recent Attorney General opinion that states that
the legislature has the ability to move the investment list to
regulation where the trustees may make changes in a more timely
fashion.
HB 215 makes that change and gives the trustees the flexibility
and freedom to establish and administer a legal investment list
in regulation while conforming to the Prudent Investor Rule. He
noted that the fund is exempt from the Administrative Procedures
Act.
4:16:59 PM
SENATOR KIM ELTON asked for a response to the criticism that the
legislature is abdicating its role by turning over its power to
a board of trustees that works in the executive branch.
Furthermore, its members may or may not have any more expertise
than some legislators.
REPRESENTATIVE ROKEBERG responded he didn't believe that the
combined wisdom of 60 minds is in any way superior to the
professional advice and management of the Permanent Fund
Corporation. Referencing his own broad knowledge of fiscal
management, he said he wouldn't want the responsibility. It's in
the best interest of the state to allow the corporation the
proposed flexibility, he declared.
4:21:45 PM
MIKE BURNS, Chief Executive Officer, Permanent Fund Corporation,
introduced himself and Laura Ashe, Director of Communications
and Research.
He reminded members that four key elements would remain with the
proposed change:
· Investments would always be made under the Prudent Investor
Rule.
· The board may leverage assets only if there is no recourse
to the fund.
· The board must maintain a diverse mix of assets
· In-state investments must have a risk and return comparable
to other investment alternatives.
To illustrate new ideas in the investment arena he pointed out
that the corporation recently let one Small CAP manager go and
hired nine at $60 million apiece. Experience has shown that more
managers in that particular area result in a better chance of
success. That's not necessarily the case in other asset classes,
however.
It's important to note that the corporation wouldn't have hired
half of those managers on their own, but the fit was right as a
team approach and the asset class is covered more completely.
Stability is achieved when one manager's returns aren't
correlated with another manager's returns.
He offered two perspectives to the question about the
independence of the trustees. The first draws on his 20-year
banking experience in dealing with the fund. In that time he has
always been impressed with the commitment and independence of
the trustees. Second, the legislation that was passed in the
last session further insulated the trustees from the political
process in that trustees can only be removed for cause.
MR. BURNS highlighted two points for the record:
· Forty-four of the fifty states manage their pension funds
and endowments according to the Prudent Investor Rule.
· Use of a statutory investment list is waning across the
country and it's time for Alaska to move in that direction.
4:26:21 PM
VICE-CHAIR WAGONER asked how many states that are using the
Prudent Investor Rule have a fund that's equivalent to $30
billion.
MR. BURNS responded there are few endowment funds similar to the
Alaska Permanent Fund, but more typically they're managing state
pension funds. Some of those are much larger and some are
smaller. For example, the California Public Retirement Pension
Fund is about $230 billion and Wyoming has a permanent fund
that's considerably smaller than Alaska's.
There were no further questions or testimony.
VICE-CHAIR WAGONER set CSHB 215(FIN) aside.
VICE-CHAIR WAGONER called a recess from 4:28:28 PM to 4:33:44 PM
SB 186-EXECUTIVE BRANCH ETHICS
VICE-CHAIR THOMAS WAGONER, announced SB 186 to be up for
consideration.
4:34:08 PM
SENATOR RALPH SEEKINS, Sponsor, said the question of ethics
legislation arose with the recent high profile case of the
former attorney general (AG). It was determined that the state
law regarding when someone may have a potential conflict of
interest that might relate to the state ethics laws required
clarification.
Former U.S. Attorney Robert Bunde's investigation of the case
pointed out that Alaska has no clear bright line regarding what
is a significant interest in a company when the company may
benefit or be harmed by a state employee. Governor Murkowski
agreed and said to find a way to address the concern.
As Judiciary Committee chair, he compared current Alaska law to
laws in other states and the federal government. In an effort to
find proper terminology that could be reduced to state law he
examined the ethical standards of various professional
associations and the generally accepted accounting principles
(GAAP).
Review of broad and narrow treatises indicated that with too
much restriction on allowing government employees and officials
to have investments qualified people are driven from meaningful
government service. This is particularly true for those who
enter government service as a capstone to their career, he said.
Everyone agrees that high moral standards in public offices are
essential to assure the trust, respect and confidence of the
people. It's also agreed that a fair and open government
requires that public officers conduct the public's business in a
way that preserves the integrity of the process and avoids
conflicts of interest. However, there isn't agreement on how to
do that.
4:39:39 PM
SENATOR SEEKINS said when he started with the recommendations
that Mr. Bunde made, discussion immediately ensued regarding the
meaning of "value" and "significant" when applied to different
companies and individuals. He tried to reach a balance point for
conducting the business of government while protecting public
interest and not violating the public trust.
4:41:10 PM
When a person has evidence of an ethics violation by a public
employee, that person has a moral responsibility to report that
behavior. No public law should discourage that action. He
asserted that no proposed legislation encroaches on a citizen's
constitutional right to speak openly about what they've heard or
seen.
SB 186 provides that anyone bringing or knowing of a formal
complaint filed with the personnel board becomes a participant
in the process and should be held to the same high standard of
confidentiality as the members of the personnel board. Because
ethics complaints must not be frivolous or filed with evil
intent, there must be a stiff penalty for anyone who knowingly
perverts the confidentiality process. This is common practice,
he said.
Even the proceedings of the personnel board or the investigatory
process by the AG's office prior to a finding of probable cause
would be held in high confidence. This is to protect the
innocent from trial in the media.
When there is probable cause the charge would be made public,
but if the charge were found to have no basis in fact an
individual's reputation would not be besmirched.
4:46:29 PM
SB 186 is the starting point for legislators to work
collectively to develop a proposal that prosecutes those who
have violated ethics laws and maintains confidentiality
throughout the process until probable cause is determined.
4:47:37 PM
SENATOR CHARLIE HUGGINS asked what happens when probable cause
is determined.
SENATOR SEEKINS said he understands that when someone comes
forward with an ethics complaint an investigation begins. All
proceedings are confidential; they have the right of subpoena
and the right for discovery. At some point a decision is made as
to whether there is probable cause. If there is probable cause
the matter becomes public; if there isn't probable cause the
matter does not become public.
4:51:45 PM
SENATOR KIM ELTON directed attention to Section 1, which
provides for criminalization of releasing confidential
information. Using the example of telling his wife that he had
to hire and pay for legal services, he demonstrated how easy it
would be to innocently violate the proposed confidentiality
provision. If the bill were to become law, that exchange would
create a class A misdemeanor.
4:53:39 PM
SENATOR SEEKINS responded, "If you know that there is an
investigation, keep your mouth shut."
SENATOR ELTON questioned not being able to tell his wife.
SENATOR SEEKINS acknowledged he might not get away with that.
Nevertheless, the intention in SB 186 is to stop the gossip
chain to protect the innocent.
SENATOR ELTON changed topics and said it's clear that there are
multiple interpretations for an appropriate bright line
regarding equity interest. With that in mind he was curious how
he arrived at the $10,000 figure.
SENATOR SEEKINS answered Mr. Bunde proposed that amount.
SENATOR ELTON directed attention to page 2, lines 7-10. He noted
that (B) has a qualifier on the $10,000 and (C) does not have a
qualifier. He asked if he was missing something.
SENATOR SEEKINS replied you could own 100 percent of an equity
position as long as it doesn't exceed $10,000.
SENATOR ELTON raised a question about page 6, Sec. 16.
SENATOR SEEKINS announced he would propose an amendment to that
section, which could be considered in either this committee or
in the Judiciary Committee. The intention is to define "family
member" in reasonable terms to include only those who live in
your household because you would have some knowledge of their
investments.
5:01:33 PM
SENATOR CHARLIE HUGGINS asked what sorts of things Mr. Bunde was
trying to clarify.
SENATOR SEEKINS responded he was trying to define what would
constitute a substantial or significant interest.
VICE-CHAIR WAGONER declared there's a serious problem associated
with the attorney general, who is appointed by the governor,
investigating an ethics complaint against the governor.
SENATOR SEEKINS said he shares that concern and his proposed
amendment would address that issue to some extent. If the
governor suspected that the attorney general committed an ethics
violation, the governor would ask the personnel board to select
an investigator who would conduct an investigation with full
subpoena powers If an ethics violation did occur, the governor
would file a complaint with the personnel board and it would
move forward with the regular process.
He suggested that same process would take place if an ethics
complaint were filed against the governor.
5:08:22 PM
SENATOR ELTON used the example of former Attorney General Renkes
and the reports in the Anchorage Daily News to point out what
would be an unintended consequence in Section 1. At the point
that the investigator contacted the reporter to ask about
deleted emails and when it was that Attorney General Renkes had
been interviewed, that reporter would have been precluded from
talking about the investigation let alone reporting on it.
SENATOR SEEKINS replied he didn't believe that successful
prosecution of a member of the press would take place, but the
governor could be prosecuted if he/she revealed a confidential
matter as part of an investigation.
SENATOR ELTON referenced AS 39.52.340(a) and said the AG
wouldn't have been able to talk to the governor about the
investigation under the provisions of Section 1. If he mentioned
that an investigation had begun he would have committed a class
A misdemeanor.
SENATOR SEEKINS agreed that once the accused was told by the
accuser that there is an investigation then the process would
have to go forward before any further conversation could take
place.
There were no further questions or testimony.
VICE-CHAIR WAGONER announced he would hold SB 186 in committee.
He called a brief recess at 5:12:36 PM.
SB 187-LEGISLATIVE ETHICS/MEETINGS
VICE-CHAIR THOMAS WAGONER announced SB 187 to be up for
consideration.
5:13:59 PM
SENATOR RALPH SEEKINS, Sponsor, related that when he began
reviewing the Executive Ethics Act there was indication that the
Legislative Ethics Act should be reviewed as well.
He asserted that the same level of confidentiality should apply.
The intent is to hold someone who files a complaint or is
involved in the process to the same level of confidentiality as
the members and staff of the Select Committee on Legislative
Ethics. The investigators would also be brought under that
umbrella of confidentiality.
Current law says if a complaint is brought and then the
complainant goes public, then the complaint is dismissed.
However, the committee could go forward with an investigation.
He submitted that if an ethics complaint is filed and the
complainant immediately goes public with the allegation the
committee would have no recourse but to dismiss the complaint
and then go forward and investigate the allegations. He charged
that that's a toothless law.
5:17:32 PM
Confidentiality must be maintained until probable cause is
reached. At that point the complaint could become public. If the
complaint is dismissed as frivolous or baseless it remains
confidential. However, if a complaint is filed and the person
who is charged chooses to publicly defend him or herself then
the entire record becomes public. That provision applies to both
this bill and SB 186, he said.
The bill also attempts to clarify that the way the legislature
conducts business is the legislature's business and
responsibility. Any attempt by a legislator to break the rules
is taken seriously and the complaint is immediately taken to the
body to determine what the procedure should be. The proceeding
is in the full light of day and is discussed openly.
SENATOR CHARLIE HUGGINS asked about the alternate member.
SENATOR SEEKINS said having an alternate member increases the
likelihood that a full committee could meet and conduct the
committee's business, which includes voting.
5:30:14 PM
SENATOR ELTON said he would not continue to question the matter
of the class A misdemeanor, but it was still a subject of
concern.
He asked if it is correct that as a consequence of SB 187 he
would never hear about a justified ethics complaint that was
filed against his staff member provided the staff took
corrective action as ordered by the ethics committee.
SENATOR SEEKINS said that isn't the intent. The intent is that
once there is probable cause and some action has been taken then
the matter could become a public record. Confidentiality would
be protected until probable cause is established. If the bill
doesn't read that way now it will before it gets to the floor,
he assured.
SENATOR ELTON expressed concern about the proposed change to
allow an alternate member to vote without having attended all
the hearings on the issue. He compared the situation to someone
who didn't attend an entire trial, but was allowed to vote as a
part of the jury. He asked if the sponsor had considered other
ways such as requiring that the alternate hear all the arguments
before voting.
SENATOR SEEKINS pointed out that there is no such restriction on
the regular members.
SENATOR ELTON replied perhaps that needs corrective action.
SENATOR SEEKINS said he had no problem looking at the issue, but
he wouldn't saddle an alternate with a higher requirement than
is imposed on the regular members.
5:34:21 PM
SENATOR HUGGINS asked whether page 2, line 13-15 is to increase
diversity in the ethics committee.
SENATOR SEEKINS said yes.
SENATOR HUGGINS offered the view that it's a good idea because
others have recognized that it's a rather select group of people
with a narrow band of interest.
SENATOR SEEKINS submitted that occurred with no evil intent. The
nominees come from the chief justice so it's no surprise that
three are attorneys and one is the wife of a noted justice.
SENATOR ELTON remarked it is understandable, but it doesn't
speak to the qualifications of those who are selected.
Referencing the prohibitions relating to employment, he asked
whether people who might have a contract with the state would be
prohibited from being on the ethics committee. For instance
would a substitute teacher be excluded?
SENATOR SEEKINS replied a substitute teacher would qualify, but
not someone with a contract.
SENATOR ELTON remarked it seems constraining to draw a bright
line. It may be preferable to have the chief justice forward the
names without restriction and then the legislature could
exercise its judgment based on the individual's background.
SENATOR SEEKINS said there are already restrictions. It's common
sense to say you have to look at diversity. Of the three
attorneys that are currently on the committee, two have
contracts with the state for Office of Public Advocacy. He'd
like to see geographic and employment diversity and he has no
problem reserving a slot, but he's nervous when you suggest
more.
SENATOR HUGGINS referenced a previous discussion about his
potato farmer from Palmer having little opportunity to serve on
the ethics committee unless he knew the chief justice. If this
gives him a better opportunity then I'm all for it, he said. He
asked whether it does that.
SENATOR SEEKINS said that's the intent and the farmer has a
better chance under this structure than the current structure.
SENATOR ELTON said he'd challenge the notion that the only
people who get appointed know the chief justice, but that aside
this doesn't get to that issue. This would just narrow the band
of friends from which the chief justice could appoint.
5:43:30 PM
Senator Therriault rejoined the meeting.
SENATOR SEEKINS asserted that this is intended to broaden the
perspective.
5:45:02 PM
VICE-CHAIR WAGONER gave Chair Therriault an update and returned
the gavel.
CHAIR THERRIAUT asked Ms. Anderson to come forward.
JOYCE ANDERSON, Administrator, Select Committee on Legislative
Ethics, stated that the committee had not reviewed the bill
since it was just introduced. She could state support for issues
that the committee had addressed in the past and she'd comment
on those sections first.
The committee supports having an alternate member sit in when a
regular member is unable to attend a complaint hearing because
it would speed the process. If the alternate legislator or
public member sits in, it would be beneficial for them to sit in
throughout the complaint process.
The committee has also previously discussed and would support
the provision for the people who are interviewed during an
ethics complaint to fall under the confidentiality provision of
the statute. The committee has always felt that is important.
She referenced advisory opinions addressed in Section 6 and said
more discussions would ensue. Currently the person who requests
an advisory opinion has the option to have the discussion in
either an open or executive session. If confidentiality is
waived, the discussion takes place in an open session. She
supported the point that everyone named would have to waive
confidentiality to have the discussion occur in an open session.
She disagreed with Senator Seekins proposal that advisory
opinions remain confidential. All advisory opinions should be
public, she said; that's what they're there for.
5:50:07 PM
SENATOR ELTON said he thought names were scrubbed when an
advisory opinion is released.
MS. ANDERSON said that is correct.
SENATOR ELTON asked for verification that if this were to pass
and a person who is not named refuses to waive confidentiality
then that advisory opinion wouldn't be made public.
MS. ANDERSON replied that's the way she interprets the bill.
MS. ANDERSON directed attention to Section 1, which makes it a
class A misdemeanor to discuss an ethics complaint or release
information about an ethics complaint. She reported that the
commission chair feels that could make the public hesitant to
file a complaint. Therefore, she issued a word of caution in
adopting that provision.
Section 1 of the bill says a person shall be charged with a
class A misdemeanor, but it doesn't say the complaint would be
dismissed. Under SB 187 the complaint would go forward and the
commission supports that as an option for the committee.
5:53:39 PM
CHAIR THERRIAULT said under the current language if someone
makes an allegation and delivers the information to the press at
essentially the same time then the complaint is dismissed. The
result is that the battle is fought in the press.
The sponsor could say whether he crafted the bill so that there
is a penalty for hunting the headline. Certainly legitimate
allegations should come in and proceed through the system, but
the way the system is now it lends itself to abuse.
MS. ANDERSON agreed with the analysis but continued to urge
caution. Senator Elton's example of discussing an issue with
your spouse is a good case in point, she said.
SENATOR ELTON stated that he would be the last to argue that no
previous ethics complaints were spurious and it wouldn't be hard
to say that some of those complaints were politically motivated.
However, the new provision in Section 1 doesn't get to the root
of that issue, he said. Someone could go to the press regarding
an alleged ethics violation and not actually file a complaint.
They wouldn't be subject to the class A misdemeanor penalty
unless they filed the complaint.
CHAIR THERRIAULT responded the press isn't interested in being
used as a political tool. An alleged ethics violation would
probably be treated differently than a pending ethics complaint.
SENATOR ELTON said information is transmitted in lots of
different ways. Although he'd like to say that blogs and
organization newsletters and such are just as responsible as the
commercial press, he isn't sure that's the case.
CHAIR THERRIAULT stated that no one should be precluded from
making his or her views known, but he believes that the
professional press would verify information.
MS. ANDERSON said information about whether there was a
complaint or not is not released.
CHAIR THERRIAULT asked if there were further comments.
MS. ANDERSON said she had comments on Sections 7 through 14,
which relate to the actual complaint process.
She interprets the bill to mean that not all decisions from the
ethics committee would be considered public. The only decisions
that would be public would be those that went to a hearing or
the ones that were forwarded to either the Senate or the House
after probable cause was found. The noted that the sponsor said
that isn't his intent and that he would make some changes.
It's been agreed that dismissal orders should not be public
because that means that there wasn't probable cause. However,
she said, the public should be aware when there is probable
cause because it's an accountability issue. She noted that the
sponsor talked about changing that part of the bill as well.
The way the bill is now, the hearing would be confidential, but
as she discussed with the sponsor, the hearing should continue
to be public because probable cause would have been established.
It's like a grand jury that has found merit and is moving to the
next stage. The noted that the sponsor agreed to change that
part of the bill.
She reiterated the sponsor's assertion that the section on the
open meeting statute was an error and would be deleted.
The final section that was repealed related to public hearings.
She didn't discuss that with the sponsor in detail, but she
assumed that he would add it back because it deals with the fact
that the hearing is public.
There were no questions.
6:01:22 PM
MERLE THOMPSON, Susitna Valley resident, aired the view that the
Ethics Committee does a fine job, but there is a problem with
the public trust. He suggested there is reason that the public
feels the way it does.
He announced that he doesn't care for the secrecy provisions in
the bill, but the real ethics problems center on conflicts of
interest and how the legislature deals with them. That's where
the bright lines are needed and they aren't there. When you have
a conflict of interest it'd be a simple matter of recusing
yourself, but it's not happening. That's why there's a public
trust problem, he declared.
The right things aren't being addressed here, he said. It kind
of reminds me of Solzhenitsyn's Gulag Archipelago ["The Gulag
Archipelago 1918-1956"] and his beet top soup. "We're getting
this weak ethical soup. A beet top soup for the people and the
chunks of beets for the legislators and it doesn't seem right to
me."
6:06:02 PM
CHAIR THERRIAULT said it would seem that he would have a problem
with the grand jury system because there's nothing about it that
is public.
MR. THOMPSON replied that isn't a direct parallel. As Aristotle
said, "The office will show the man." He suggested that it would
benefit legislators to feel that the public holds them to a
higher standard.
CHAIR THERRIAULT said the ethics committee is acting as a grand
jury and the fact that there is confidentiality until a decision
is made isn't a problem with the general public.
MR. THOMPSON said he would beg to differ. Calling the previous
ethics rule change a strike against open government, he asserted
that the proposed bill takes it a step further.
6:09:31 PM
SENATOR WAGONER remarked he had four or five ethics complaints
filed against him two years ago and every one was false. He took
issue with the idea that unfounded ethics complaints that are
filed for political gain should become public.
MR. THOMPSON responded he must not have been harmed by the
process because he reads newspapers quite often he didn't hear
anything about any of the ethics complaints.
SENATOR WAGONER said they weren't founded so they weren't made
public. Had there been any substantial truth the public would
have probably been informed. He reiterated Senator Therriault's
argument that the ethics committee operates the same way as a
grand jury. Unsubstantiated claims aren't made public because to
do so would besmirch the individual's reputation.
MR. THOMPSON pressed the view that his reputation hadn't been
damaged.
CHAIR THERRIAULT made the point that the reason that Senator
Wagoner wasn't damaged is because the unfounded claims were
dealt with in a confidential manner. He said he didn't
understand what the argument would be to change that system.
MR. THOMPSON reported he didn't have any problem with how the
system was working two years ago, but it was changed last year
and this bill proposes to change it again. "We've had a plethora
of ethical lapses from different branches of government in the
last two years and I think that's what people are responding
to." The changes that are being made aren't addressing the real
problems, he declared.
6:12:45 PM
SENATOR HUGGINS commented there should be a disincentive to file
complaints with no basis.
MR. THOMPSON said he didn't need to reiterate that he believes
that there are ethical lapses that aren't being dealt with in a
particularly good way. We seem to be taking it the other way,
which is to put the accuser under more question than the
accused.
SENATOR ELTON directed attention to the last section, which
repeals open meetings and AS 24.60.170(m). He asked the sponsor
to clarify whether the suggestion is to take both repealers out
or just the one.
SENATOR SEEKINS replied one would be taken out because it was
put in by mistake. The other would be put back in after some
modification.
SENATOR ELTON asked for verification that AS 24.60.037(c), which
addresses the caucus and political strategy would be taken out
and AS 24.60.170(m) would be tweaked.
SENATOR SEEKINS replied the whole section on caucus would stay
in the bill. It would be addressed in a manner that clarifies
the areas of responsibility for the legislature and the
committee.
6:16:10 PM
There were no further questions or testimony.
CHAIR THERRIAULT held SB 187 in committee.
SB 127-EXEC. BRANCH ETHICS: FINANCIAL INTERESTS
CHAIR GENE THERRIAULT announced SB 127 to be up for
consideration.
6:16:38 PM
SENATOR HOLLIS FRENCH, Sponsor, described SB 127 as a
straightforward attempt to clearly define a significant
financial interest. When Mr. Bunde investigated former Attorney
General Renkes in the KFx matter, he found there was ambiguity
associated with determining significant financial interest
because Alaska law doesn't provide a hard or fast number or
percentage for that.
The bill defines financial interest on page 2. A financial
holding is significant if it amounts to $5,000 or 1% of the
total value of the company stock, whichever is less.
He reviewed Section 1 and read the statutory definitions for
personal and financial interests. That section contained the
word "or" too many times, which made it too broad. He narrowed
it to just the instances where your action has a conjectural
effect.
Proposed Section 1(b)(2) is new and relates to personal
interest. No money is involved; there are only those interests
that are held without any potential for profit.
6:20:44 PM
CHAIR THERRIAULT said assuming he works gas pipeline issues and
that the pipeline goes through, would he have to disclose if his
Fairbanks property value skyrockets in proportion to all other
Fairbanks property.
SENATOR FRENCH replied that wouldn't be a personal interest
because property is a financial interest. Nevertheless, he
opined that he would be absolved because the action has a
conjectural effect. "You can posit a boom off of the gas
pipeline, but it's not necessarily going to be true."
Section 1(b)(3) focuses on financial interest and subparagraphs
(A)(B) and (C) lay out the following three criteria that must be
met to for an insignificant financial interest to occur:
A. You or an immediate family member must hold the interest.
The current ethics statutes already adequately addresses
how you are charged with knowledge of what your relatives
may own in their stock portfolio.
B. It has to involve an ownership that is source of income or
from which a person receives or expects to receive a
financial benefit. That's some sort of concrete financial
relationship that will bring you money.
C. The value is reset to less than $5,000 or 1% of the total
value of the business, whichever is less. Determining the
amount is a balance, but it should be at an amount that
would give the public confidence that decisions are being
made with them in mind and not the public officer.
Finally, the bill broadens the definition of official action
because current statute is ambiguous. As proposed, official
action would include just about anything that is done in the
course of a workday as a state employee.
6:24:52 PM
CHAIR THERRIAULT asked how the $5,000 compares to other states.
SENATOR FRENCH replied Idaho, Kentucky and three or four others
have a limit similar to $5,000.
SENATOR WAGONER asked if the public office disclosure statements
don't require about the same information as (3)(A)(B) and (C)
and would therefore already be available to the public.
SENATOR FRENCH responded there are two things going on there.
The object of disclosure is to let folks know what you own. It
doesn't get you out of an ethical conflict if you have money on
the line. The other thing is that you as a public official don't
make a decision that affects your investments.
CHAIR THERRIAULT posed the hypothetical situation of a
Department of Law employee whose family owned a particular
business and asked if that employee would have to avoid
involvement with anything dealing with that type of business.
SENATOR FRENCH replied if the action that is taken would be more
than conjectural then the answer would be yes. Assume that your
family owns fishing permits in Kachemak Bay and you're an
attorney for the Department of Natural Resources. If a regulator
asks for a written opinion on fishing permits in Kachemak Bay
you should send the work to the next attorney.
6:27:32 PM
CHAIR THERRIAULT noted there were no further questions. He asked
Senator Seekins if he had SB 186, SB 187, and SB 127 noticed in
the Judiciary Committee.
SENATOR SEEKINS said he thought so.
CHAIR THERRIAULT asked the committee members if they preferred
to amend Senator Seekins bills in this committee or move them to
Judiciary to make the changes.
SENATOR ELTON said his preference would always be to see the
changes. He pointed out that he doesn't sit on Judiciary. The
sponsor has said he would change some sections in one of the
bills but the committee doesn't know what those changes are.
CHAIR THERRIAULT asked Senator Seekins if he was close to having
a committee substitute.
SENATOR SEEKINS said one difficulty is that the drafters are
very busy. He said that Senator Elton or any other member would
be welcome to join the Judiciary Committee and ask any
questions, he said.
SENATOR ELTON expressed appreciation for the offer and said the
unspoken point is that he wouldn't have a vote. These are
substantive issues on bills that were introduced just a few days
ago, he said.
SENATOR HUGGINS remarked he is on Judiciary, but the challenge
is getting the fix.
SENATOR DAVIS suggested talking about moving the bills
individually. SB 186 needs more change than the others.
SENATOR SEEKINS stated that the same concepts would be embodied
in the final bill; it's just getting the right language to
accommodate those concepts.
CHAIR THERRIAULT called a brief at ease from 6:32:53 PM to
6:36:14 PM
CHAIR THERRIAULT announced he would like to move the three bills
as a package. He recessed the meeting to the call of the chair
at 6:37:59 PM.
CHAIR GENE THERRIAULT reconvened the April 26, 2005 Senate State
Affairs Standing Committee meeting at 8:11:49 PM April 27,
2005. Present were Senators Elton, Wagoner, Huggins, and Chair
Therriault.
CSHB 127(FIN) AM-PFD:PEACE CORPS/OLYMPIAN/SANCTIONS
CHAIR GENE THERRIAULT announced HB 127 to be up for
consideration.
He stated that he discussed the legislation with the committee
members and he made it clear to the sponsor that he does not
support the bill. Nonetheless, she asked that it be moved to the
next committee and he was willing to consider that if the
members were agreeable. There was no objection or debate.
8:12:47 PM
SENATOR THOMAS WAGONER motioned to report CSHB 127(FIN) AM and
attached fiscal note from committee with individual
recommendations.
CHAIR THERRIAULT announced that without objection the bill would
move to the next committee of referral.
SB 127-EXEC. BRANCH ETHICS: FINANCIAL INTERESTS
8:13:41 PM
CHAIR GENE THERRIAULT announced SB 127 to be up for
consideration.
He asked the sponsor to provide explanation for why he settled
on the particular dollar amount.
8:14:04 PM
SENATOR HOLLIS FRENCH, Sponsor, explained that the basic idea is
to promote the public trust. First, the lower the number the
more likely it is that the public will view public official
decisions as being in the public's interest rather than as an
investment interest. Second, $5,000 was selected because it is
similar to what is used in other states. The third reason is
that the median income for Alaskans is about $35,000 and so
$5,000 represents over 10% of that annual earning. From the
public's perspective, that's a lot of money.
CHAIR THERRIAULT restated his interest in passing the three
ethics bills as a package and asked for a motion.
SENATOR WAGONER motioned to report SB 127 and attached fiscal
notes from committee with individual recommendations.
CHAIR THERRIAULT announced that without objection the bill would
move to the next committee of referral.
SB 186-EXECUTIVE BRANCH ETHICS
8:16:11 PM
CHAIR GENE THERRIAULT announced SB 186 to be up for
consideration.
He moved the \F version committee substitute (CS) as the working
document. There being no objection, it was so ordered.
8:16:53 PM
SENATOR SEEKINS reported the following:
Sections 1 and 2 had no changes.
Section 3 (f) talks about "immediate family" rather than
"family" because is not with the extended family.
CHAIR THERRIAULT noted that the word "entity" was struck from
Section 2 in several instances. He asked if the drafters made
the suggestion.
SENATOR SEEKINS said that's correct. Business is defined as an
entity so the term is redundant.
In Section 3 "business associate" is used instead of any term
that is closely related to person. The definition is located in
Section 19.
In Section 4 the terms, "or position" and "or a business
associate" and "or by reason of the officer's position" were
added to clarify that due to their position, someone may have
access to information that should be confidential.
In Sections 5, 6 and 7 the words "or a business associate"
replaces "closely associated person." That change in combination
with the definition of "immediate family" should take care of
the universe of people we're interested in, he said.
8:20:11 PM
SENATOR KIM ELTON questioned whether a "business associate"
would encompass a smaller group because "a closely associated
person" might include something in addition to a business
associate.
SENATOR SEEKINS replied the idea is that the next-door neighbor
or your fishing friend would not be included. Family,
professional associations, and business associations are all
covered.
In Section 8(b)(2)(A) the words " personal or" were deleted. The
discussion is about financial interests only. In that same
subparagraph "interest that gives" replaces "interests that
give".
8:22:20 PM
SENATOR CHARLIE HUGGINS asked for an example of personal or
financial interests that might be a potential violation.
SENATOR SEEKINS answered you could tell someone to sell their
stock or withdraw from a partnership or sell a lodge.
Divestiture is basically saying get rid of the conflicting
interest.
Section 8(b)(2)(B) deals with putting the financial interest
that may be a conflict into a blind trust.
CHAIR THERRIAULT noted that with the removal of the words "no
direct" there would be no control at all.
SENATOR SEEKINS responded there would be no management control
over that financial interest.
8:24:29 PM
SENATOR ELTON observed that the proposed language would have
allowed former Attorney General Renkes to place his KFx stock in
a blind trust or other financial structure over which he had no
management authority. That would have satisfied the ethics law
even though he didn't get rid of his conflict of interest.
However, at some point he would have accrued benefit from that
stock ownership.
SENATOR SEEKINS drew attention to page 3, lines 24-31 where it
says there is a written determination regarding whether there
was a violation. If the supervisor determines that a violation
exists or will occur he or she would have two options The
supervisor could reassign the employee's duties or direct the
employee to place the investment in a blind trust over which he
or she had no control.
CHAIR THERRIAULT added that there were two issues. One was the
stock ownership and the other was the allegation that the former
attorney general bought and sold the stock. Clearly buying and
selling would no longer be an issue under the proposed language.
SENATOR ELTON expressed concern that that subparagraph (B)
causes something to happen but it doesn't remove the perception
that the public officer could benefit. Putting the stock in a
blind trust places the public official one step away from the
investment, but it doesn't remove the potential incentive to
benefit the company in question.
8:28:20 PM
SENATOR SEEKINS restated his belief that leaving the decision to
a supervisor is a legitimate option.
SENATOR ELTON questioned whether there wouldn't have been an
unintended consequence of no public record whatsoever if former
Attorney General Renkes had moved his investment into a blind
trust. In that instance there was at least a public file showing
his holdings in KFx, he said.
SENATOR SEEKINS pointed to the three options available to a
supervisor in a similar circumstance: don't work on the
particular project; sell the stock; put the stock into a
management system over which the public employee has no control.
He stressed that the supervisor would provide a written
determination that would go in the file and to the attorney
general.
SENATOR ELTON said his understanding is that a personnel file
isn't open to the public so under this proposal he wasn't sure
that there would be a document that could be disclosed to the
public.
SENATOR SEEKINS clarified that the proposed language calls for
the file to be released to the public employee and to the
attorney general.
CHAIR THERRIAULT asked the sponsor to continue.
SENATOR SEEKINS directed attention to Section 9. It was
discussed conceptually during the previous hearing and relates
to an allegation of a violation by the governor, lieutenant
governor, or attorney general. In the event of an allegation,
the personnel board would appoint an independent counsel with
full power to issue and enforce subpoenas. The investigator
would prepare a written report outlining the findings and giving
a conclusion.
If an allegation were made against the governor or the
lieutenant governor, then the attorney general would review the
conclusion and make the final determination as to whether the
complaint would go forward. Similarly, the governor would make
the final determination for an allegation made against the
attorney general. For the first time in our statutes, a
procedure is set forth to address a complaint at that high
level, he said.
SENATOR ELTON asked for verification that nothing in Section 9
precludes anyone else from filing a complaint.
8:36:57 PM
SENATOR SEEKINS said no; this isn't the process for filing a
complaint it's the process for determining whether or not there
was a violation that provided basis for a complaint.
8:37:42 PM
Section 10 would amend AS 39.52.240(a). It states that Section
10 doesn't apply to allegations investigated in proposed Section
9.
Section 11 would amend AS 39.52.310(a) to include AS
39.52.230(b).
Section 12 would amend AS 39.52.335(a). In the event that a
complaint was dismissed, the subject of the complaint would
receive a copy of the summary of the matter. He noted that at
any time the parties could stipulate that a complaint is public.
Section 13 would amend AS 39.52.335(f). The personnel board may
issue a confidential report on the complaint to the subject of
the complaint, the complainant and the attorney general.
SENATOR ELTON asked why the language about the superior court
was stricken from Section 12.
SENATOR SEEKINS answered the matter would no longer go there; he
thought it applied to the appeal process.
CHAIR THERRIAULT announced an at-ease from 8:40:23 PM to 8:42:29
PM to review the statute.
SENATOR ELTON stated that the superior court would be precluded
from making the matter public.
SENATOR SEEKINS disagreed. Subsection (h) says that the court
can order the matter be made public. Deleting paragraph (2) just
precludes it at this particular section, he said.
8:43:46 PM
Section 13 amends AS 39.52.335(f). It says that the confidential
report may be issued to the attorney general, the subject of the
complaint, and the complainant. The report remains confidential
if it is dismissed.
Section 14 amends AS 39.52.340(a). The information an
independent counsel might discover would be confidential and the
information about a filing or intention to file a complaint
could not be disclosed. He clarified that documents from state
agencies don't become secret just because they were requested in
an investigation.
Section 15 amends AS 39.52.380(a) to include four additional
statutory references. It expands on the power given to the
independent counsel.
Section 16 amends AS 39.52.410(a) and relates to the length of
time investments would remain in a blind trust. He noted that
some language was inadvertently omitted. He suggested that it
could be reinserted in the next committee of referral.
Section 17 amends AS 39.52.960(9) by adding "an interest held by
a public employee with a business associate" to the definition
of "financial interest."
Section 18 amends AS 39.52.960(11) to further clarify and narrow
who is included as an immediate family member.
8:48:51 PM
SENATOR ELTON suggested that removing grandparent, aunt or uncle
might be going too far.
SENATOR SEEKINS argued that given all the step permutations of
the current American family the net would be cast too far.
SENATOR ELTON said he wasn't suggesting expanding the number of
people that are covered, but some previous legislature made a
decision that it is appropriate to include grandparent, aunt,
and uncle in the definition. Unless the existing language has
caused a problem, he didn't believe the scope should be
narrowed. Also, there's the provision in law that says you're
not complicit in a conflict of interest if you didn't know about
the financial arrangement.
SENATOR SEEKINS responded you would have to prove that you
didn't know.
8:53:00 PM
Section 19 amends AS 39.52.960 by adding new paragraphs defining
"business associate" and "household."
Section 20 repeals AS 39.52.335(g) and AS 39.52.335(h).
SENATOR ELTON directed attention to Section 12 and said the
previous discussion included the assurance that AS 30.52.335(h)
was deleted at that point because it was covered elsewhere. He
noted that Section 20 repeals AS 30.52.335(h) so the net is that
there would be no appeal to the superior court to make something
public.
SENATOR SEEKINS said he didn't notice that but it does take it
out. It says that if the complaint is dismissed or resolved then
it's the end of the line.
CHAIR THERRIAULT asked if there was a particular reason to
strike that subsection. Because (h) was permissive, a person
could go to the court and ask for release of the information.
SENATOR SEEKINS answered he didn't believe so. He said he had no
problem if someone wanted to go to the court to get the
information as long as it was clear that there was a substantial
concern to the public interest.
SENATOR ELTON observed that those protections would be supplied
by the superior court just as they are now.
SENATOR SEEKINS agreed to review the matter. The instructions to
the drafter were that once the personnel board finds that there
was no violation then the matter is closed.
CHAIR THERRIAULT brought up the comparison between the personnel
board and a grand jury proceeding.
SENATOR SEEKINS interjected there is neither an appeal process
for nor a public disclosure of a grand jury finding of no basis
for an indictment.
CHAIR THERRIAULT asked Senator Elton what might trigger the
court to release the information if the matter had been found to
have no basis.
SENATOR ELTON responded that would presume fact situations that
have not yet occurred, but it appears as though the proposal
changes parts of law in a way that may not be necessary. It's
perfectly appropriate for any Alaskan to be curious about the
conduct of a public officer and it might be in the public's
interest for a dismissal to be part of the public record.
Given the nature of the repealer, he asked what the provision is
in subsection (g).
CHAIR THERRIAULT read the statute.
Fire alarm at 9:00:27 PM
9:09:38 PM
SENATOR SEEKINS read subsection (h) and stated that the proposed
change would keep a matter confidential when a complaint has
been dismissed. He argued that, "We're just getting rid of a
paragraph that says that if it wasn't made public but the
personnel board thought it should, then somebody could sue to
make it public. "
SENATOR WAGONER drew a parallel between a baseless complaint and
a mistake on a credit report.
SENATOR SEEKINS commented once information is on the Web it's
there forever.
SENATOR ELTON motioned to strike Section 20. He explained his
reasoning is that under subsection (g) the personnel board is
given the opportunity to use discretion in issuing a report that
is scrubbed of identifying information. Repealing those two
subsections is taking away opportunities that could benefit the
subject of the complaint and other state employees who may want
to know what decisions the board has made.
SENATOR SEEKINS said he didn't object to striking (g) from
proposed Section 20, but (h) has no reason for remaining in law.
Once a person is found innocent of the charges, the matter is
dismissed and the facts of the matter would be kept
confidential.
CHAIR THERRIAULT announced he would divide the question.
Amendment 1a would ask whether AS 39.52.335(g) should be struck
from Section 20. Amendment 1b would ask whether AS 39.52.335(h)
should be struck from Section 20.
SENATOR ELTON moved Amendment 1a.
CHAIR THERRIAULT found there was no objection and Amendment 1a
passed.
SENATOR ELTON moved Amendment 1b.
He stated that the discussion has centered on the assumption
that the only disposition of a complaint is a dismissal and he
couldn't see that. Subsection (h) would allow the personnel
board to recommend that the matter be made public for a number
of reasons. If a person is found innocent it might be helpful
for the public to know that. Since it hasn't been demonstrated
that the existing statutes are creating a problem, he said he
wasn't comfortable making further change.
SENATOR SEEKINS emphasized that if probable cause were found
then it would become a public matter.
SENATOR ELTON directed attention to (h)(1). It talks about
dismissal or resolution of the complaint, but not dismissal
alone.
SENATOR SEEKINS responded if there was evidence that the
dismissal was clearly contrary to the requirements of this
chapter then a person would have a right to bring an action
under the common law to retry the issue. But not for disclosure,
he said
CHAIR THERRIAULT found there was no further debate on Amendment
1b and asked for a roll call vote.
Amendment 1(b) failed 1 to 3 with Senator Elton voting yea and
Senators Wagoner, Huggins and Therriault voting nay.
CHAIR THERRIAULT found there were no further questions or
amendments on SB 186. He asked for the will of the committee.
SENATOR WAGONER motioned to report CSSB 186 (STA), version F as
amended, and attached fiscal notes from committee with
individual recommendations.
SENATOR ELTON objected. He stated that at the beginning the task
was simply to establish a bright line to define a substantial
interest. SB 186 goes far beyond that point. It repeals certain
provisions and makes some information less public. He said he is
more comfortable with a bill that sets a dollar amount to define
substantial interest. He's uncomfortable going further if it
hasn't been demonstrated that the existing statutes are creating
a problem.
9:19:37 PM
CHAIR THERRIAULT called for a roll call vote.
The motion passed 3 to 1 with Senators Huggins, Wagoner and
Chair Therriault voting yea and Senator Elton voting nay. CSSB
186(STA) moved to the next committee of referral.
SB 187-LEGISLATIVE ETHICS/MEETINGS
CHAIR GENE THERRIAULT announced SB 187 to be up for
consideration.
9:19:53 PM
SENATOR RALPH SEEKINS, sponsor, reviewed the proposed changes.
Section 2 is the same as the original version and restates a
truism that exists.
Section 3 specifically names the open meetings guidelines.
Section 4 follows the commonsense guideline of not loading the
Select Committee on Legislative Ethics with people who are
involved in government.
Section 5 is unchanged from the original version.
CHAIR THERRIAULT moved version F as the working document. There
was no objection.
SENATOR THOMAS WAGONER read Section 4(c) and asked about people
who are members of no political party.
SENATOR SEEKINS questioned whether non-party isn't in fact a
political party. That point might need to be addressed at some
point, he said.
SENATOR WAGONER said he didn't believe that NP [nonpartisan] is
recognized as a political party in Alaska yet a lot of people
are registered that way.
SENATOR SEEKINS opined that as currently written all of them
could technically be nonparty.
SENATOR WAGONER suggested that it be addressed.
SENATOR SEEKINS clarified that the change in Section 5 is to
allow an alternate member to attend all committee and
subcommittee meetings and hearings rather than just hearings.
SENATOR ELTON raised the point that there is a bright line
prohibiting Senate members from going to House subcommittee
meetings and vice versa. If Section 5 were interpreted strictly,
an alternate legislator could go to either.
CHAIR THERRIAULT pointed out the next line says the alternate
may attend to the same extent as the regular member.
SENATOR SEEKINS said it was deliberately crafted so that the
alternate gets no more than the regular legislative member.
SENATOR ELTON agreed.
SENATOR SEEKINS said Section 6 relates to requesting an opinion.
It clarifies that everyone has the same opportunity to protect
his or her reputation.
SENATOR ELTON informed the committee that when the review was
complete he would motion to strike the new language in Section
6. He noted that advisory opinions are scrubbed of identifying
characteristics and they provide information that might be
helpful in guiding behavior. The addition of the proposed
language would constrain access to advisory opinions.
9:26:23 PM
SENATOR SEEKINS disagreed.
SENATOR ELTON read the proposed language and made the point that
the requester could say they didn't want the advisory opinion to
be released.
CHAIR THERRIAULT asked Ms. Anderson to come forward.
9:27:10 PM
JOYCE ANDERSON, Administrator, Select Committee on Legislative
Ethics, read AS 24.60.150(a)(2).
SENATOR SEEKINS asserted that the proposed language in Section 6
doesn't disallow sanitized versions.
CHAIR THERRIAULT reread the provision and said it's a statutory
duty to the committee.
MS. ANDERSON offered the opinion that the proposed language is a
bit confusing if you don't read the other section. She suggested
changing the language so it doesn't look as though the advisory
opinion remains confidential and isn't published.
CHAIR THERRIAULT asked if making reference to AS 24.60.150(a)(2)
would suffice.
SENATOR SEEKINS argued that there's a difference between the
sections. The proposed language says the information about the
opinion is confidential while the other section talks about
publishing semi-annual summaries of decisions and advisory
opinions with sufficient deletions in the summaries to prevent
disclosure of a person's identity.
CHAIR THERRIAULT asked Senator Elton if his concern would be
alleviated if it was made clear that AS 24.60.150(a)(2) remained
operative and that the sanitized versions are still published.
SENATOR ELTON replied the language in the other section speaks
only to summaries and not to opinions. It's always been the
committee's practice to release a sanitized opinion not a
summary of the opinion. The documents aren't one and the same.
MS. ANDERSON agreed with Senator Elton; public decisions that
are issued are not summarized. He's also correct that advisory
opinions are sanitized of information when drafted. Summaries
have never been published; it's the public decision and advisory
opinion itself that is published.
SENATOR SEEKINS maintained that an opinion that has been
sanitized is a summary of the opinion. Nonetheless, he said he
was willing to look at the issue to make sure that a sanitized
version of an opinion isn't precluded.
Sections 7 through 14 are to ensure that confidentiality is
maintained until a finding of probable cause. A finding that
only recommends corrective action shouldn't be made public.
MS. ANDERSON explained that since the ethics committee was
established in 1992, 57 complaints have been filed. Probable
cause was found in 10 cases; a mix of probable cause and
dismissed allegations was found in 6 cases; and 41 cases were
dismissed entirely.
When probable cause was established, corrective action was
recommended. That included: writing a letter of apology to the
House or Senate, developing office policy regarding use of staff
time, attending training sessions, removing private business
from legislative setting.
Since 1992 there have been three public hearings and just one
complaint has resulted in the imposition of sanctions. She said
that under the proposed policy only 4 decisions would have been
issued from 1992 to the present. All others would not have been
issued.
SENATOR SEEKINS asked if that was out of 10.
MS. ANDERSON clarified that there were 16 decisions issued.
Decisions were also issued for those that didn't have probable
cause because current statute says the cases are public if the
complaint goes to an investigative stage. If not, the complaint
is completely dismissed.
MS ANDERSON said she would comment further following the
presentation.
9:37:17 PM
SENATOR SEEKINS read AS 24.60.150(a)(2) and said that's how the
information comes down.
He asked for an amendment to delete lines 20-25 on page 7. His
intention is to pursue every complaint, but to hold responsible
those people who break confidentiality.
CHAIR THERRIAULT recapped previous discussion about what
currently happens when someone brings an action to generate a
headline. If the person discloses the action, the complaint is
dismissed.
SENATOR SEEKINS argued that the complaint isn't really
dismissed.
9:40:09 PM
CHAIR THERRIAULT asked for verification that if the language is
stricken then any complaint, whether it is disclosed or not,
goes forward and the discloser is punished.
SENATOR SEEKINS said yes; the penalty is for breaking
confidentiality.
CHAIR THERRIAULT asked about the change in Section 15, page 8,
line 27. The words "or obtained" were added.
SENATOR SEEKINS explained that the addition is to broaden the
requirements.
SENATOR ELTON asked if there is a difference between documents
filed with the committee and documents filed by the committee.
SENATOR SEEKINS said the intent is to include information
obtained rather than just disclosed.
SENATOR ELTON added, "Or filed."
SENATOR SEEKINS responded filed doesn't cover it because there
are disclosure processes. It's a term of art in the legal
profession, he said.
CHAIR THERRIAULT provided an example and suggested the addition
is more inclusive.
SENATOR SEEKINS remarked it's better to be redundant than to
have a loophole.
SENATOR ELTON noted that subsection (s) in Section 15 is new and
asked if a person who said they intended to file a complaint
would be subject to the penalty.
SENATOR SEEKINS replied as long as a person didn't file the
complaint they wouldn't be subject to the penalty.
SENATOR ELTON pointed out that it says filing of or intention to
file. If a person disclosed an intention to file a complaint and
hasn't filed, he asked if that person would be subject to a
class A misdemeanor.
SENATOR SEEKINS said he didn't believe it would be interpreted
that way. The intention is if someone intends to file a
complaint and subsequently files it. He had no problem with
adding language about subsequently filing the complaint.
9:44:24 PM
SENATOR ELTON said that would clarify and narrow the ability to
charge someone with a class A misdemeanor. I'm comfortable with
the addition, he said. I'm not saying I'm comfortable with
Section 15.
He suggested the committee consider inserting "that is
subsequently filed" after the word "complaint" on line 17.
SENATOR SEEKINS said he had no objection.
SENATOR ELTON moved the amendment.
CHAIR THERRIAULT suggested it be a conceptual amendment to give
the drafter some latitude.
CHAIR THERRIAULT found no objection to conceptual Amendment 1.
He noted that the repealers were dropped from the original
version.
SENATOR SEEKINS agreed saying they shouldn't have been there.
9:46:02 PM
SENATOR ELTON directed attention to Section 10 and asked if his
interpretation was correct that under this provision he would
never know that his staff member committed an ethics violation
if he or she completed the recommended corrective action. An
ethics violation is something that is fairly important for an
employer to know, he asserted.
SENATOR SEEKINS said it's correct that the employer wouldn't
know unless the employee chose to disclose the violation.
SENATOR ELTON argued that the employing entity should know if a
violation occurred and was confirmed by the ethics committee.
SENATOR SEEKINS suggested that any of the legislators present
would know about a staff member's ethics violation long before
the matter was resolved.
SENATOR ELTON responded if that's true then someone committed a
class A misdemeanor by leaking the information.
SENATOR SEEKINS pointed out that the person who is charged has
the right to disclose the information at any time to anyone so
he didn't see how that could happen.
SENATOR ELTON replied he could see how it could happen very
easily. The person who was charged might not want the employer
to know about the violation, but someone who was interviewed
might.
SENATOR SEEKINS said the employer would have a difficult
decision if someone other than the violator disclosed the
information.
CHAIR THERRIAULT made the point that under the grand jury system
an employer doesn't have a right to know about any charges that
were dismissed. As a legislator, should I have a higher duty of
a right to know about an allegation brought against a staff
member than a private business employer, he asked.
SENATOR ELTON said, absolutely, it's different. The Legislative
Ethics Law governs the behavior of legislators and staff and I'd
want to know if a staff member of mine violated the law and
agreed to the corrective action. That violation occurred in a
public trust that we both swore to uphold. Legislators cannot
divorce themselves from what their staff members do in the
office. Their actions reflect back on the legislators who hired
them.
Using the example of a criminal complaint that went to a grand
jury and was dismissed isn't the same issue, he said. In this
instance the person could be guilty and you still wouldn't know
unless the employee tells you about it. "We have a duty as
legislators to make sure our staff follows the law," he said.
CHAIR THERRIAULT raised a question about a private employer's
right to know an employee's business.
SENATOR SEEKINS announced that he wanted to correct the record
because his employees haven't taken an oath of office.
It's a delicate balance, he said. If the ethics committee
requires a corrective action, should that be a matter of public
record or should there be a level of confidentiality? That's the
decision that has to be made, but employees working for
legislators don't have a greater responsibility than any other
employee working anywhere else in the state of Alaska, he
asserted.
SENATOR HUGGINS asked Ms. Anderson to comment on her experience.
MS. ANDERSON said a point she'd like to make is that even though
there was corrective action, the person was found with probable
cause. That's similar to a guilty verdict even though there was
corrective action. Looking back to 1992 she didn't see any cases
that didn't have corrective action because what the person was
doing was violating the ethics code. There was a finding of
probable cause in all instances.
9:56:35 PM
SENATOR ELTON said if a court orders corrective action there is
a public record and that's the way it should be near. It's
ironic that the proposal is to go beyond that. Not only would
the matter be private, the employer wouldn't have any knowledge
of an ethics violation. As an employer I'd want to know so I
could make a judgment on whether or not that's behavior that I
want to tolerate or make a corrective action beyond what the
ethics committee suggested, he said.
SENATOR SEEKINS disputed the statement that his employees are
reflective of him. "Their actions may reflect on me. They may
affect my reputation by their actions, but they certainly aren't
reflective of me," he said.
CHAIR THERRIAULT asked if that's the only impact of Section 10.
SENATOR SEEKINS interjected if the legislature wanted a minor
infraction that has a minor correction to be public knowledge
then he would go along. He said he was just trying to err on the
side of privacy and not to make people criminals.
9:59:00 PM
CHAIR THERRIAULT asked Ms. Anderson to comment on his comparison
to the grand jury and that if charges were brought then the
matter would be public.
SENATOR SEEKINS interjected to say that he would agree to a
conceptual amendment that says that the line of confidentiality
ends at probable cause rather than at the point of corrective
action.
9:59:43 PM
CHAIR THERRIAULT asked if that would be accomplished by deleting
Section 10.
SENATOR ELTON noted the new language on lines 22 through 26.
MS. ANDERSON read subsection (m) and said that perhaps Senator
Seekins didn't realize that was reinserted.
SENATOR SEEKINS said it was put back in because it needed to be
modified rather than deleted. He had no problem with a
conceptual amendment so that once probable cause is established
the matter would become public.
MS. ANDERSON stated that by reinserting (m) that is
accomplished.
10:01:31 PM
CHAIR THERRIAULT noted that Senator Seekins suggested deleting
the language on page 7, lines 20-25.
SENATOR SEEKINS agreed and said his intent is to prosecute every
allegation of a violation of the ethics act to a determination
of whether or not there was probable cause.
CHAIR THERRIAULT moved to strike language on page 7, lines 20
through 25 as Amendment 2.
SENATOR ELTON questioned whether the net effect is that a
complaint doesn't need to be dismissed if confidentiality is
broken.
SENATOR SEEKINS said yes.
SENATOR ELTON removed his objection if it was implied that he
had one.
CHAIR THERRIAULT found there was no objection to Amendment 2.
Finding no further questions or suggested amendments he asked
for the will of the committee.
SENATOR WAGONER motioned to report CSSB 187(STA) and attached
fiscal notes from committee with individual recommendations.
SENATOR ELTON objected and stated that his objection centers on
the class A misdemeanor penalty for any sort of disclosure. That
sets up a situation in which I couldn't tell my wife if a
complaint is filed against me, he said.
CHAIR THERRIAULT asked if his concern relates to the severity of
the sanction or the fact that there's a sanction at all.
SENATOR ELTON replied a sanction was adopted just last year to
address this issue; the sanction was dismissal. Although the
complaint is dismissed, the ethics committee had the option of
re-filing the complaint. Certainly if the allegation is of a
serious nature an investigation should go forward because the
bad act of a complainant shouldn't allow somebody to skate.
Having served on the ethics committee he said he believes that
some complaints have been filed by bad actors. However, because
the press and the committee acted in a responsible manner in
those cases, neither political careers nor reputations were
damaged.
Although it's hard to quantify or prove, the bill provides a
disincentive to filing a complaint. For instance a person who
discusses an issue with someone and subsequently files a
complaint would find that they had broken the law.
SENATOR SEEKINS responded, "This same statute, basically, came
from Oklahoma." This is a serious matter and we need to do this,
he said.
10:07:40 PM
SENATOR ELTON said a person wouldn't know that they broke the
law until they file the complaint and are told. Further, he
said, it's not fair to keep using the grand jury example. There
are all sorts of reasons that someone might end up in court and
the grand jury example covers just a portion of the fact
situations that someone with a legitimate complaint might face.
CHAIR THERRIAULT pointed out that all other matters would be
civil.
SENATOR ELTON responded they're civil matters that could cost a
lot more than $10,000.
CHAIR THERRIAULT said if the state is bringing the charge then
it's through the grand jury process.
SENATOR ELTON replied it might not be the state bringing the
charge. It could be you or me or anybody. It's not just the
state that files complaints with the ethics committee.
SENATOR SEEKINS drew on his experience from serving on the
Judiciary Committee and said that mensrea is inferred in a
criminal complaint. A person has to have knowingly disclosed.
CHAIR THERRIAULT called for a roll call vote on the motion to
move the bill from committee. The motion passed 3 to 1 with
Senators Wagoner, Huggins, and Therriault voting yea and Senator
Elton voting nay.
CSSB 187(STA) moved to the next committee of referral.
There being no further business to come before the committee,
Chair Therriault adjourned the meeting at 10:10:05 PM.
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