ALASKA STATE LEGISLATURE
SENATE STATE AFFAIRS STANDING COMMITTEE
February 1, 2007
9:05 a.m.
MEMBERS PRESENT
Senator Lesil McGuire, Chair
Senator Gary Stevens, Vice Chair
Senator Hollis French
Senator Lyda Green
Senator Con Bunde
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 19
"An Act relating to a public officer's taking official action
regarding a matter in which the public officer has a financial
interest; and defining 'official action' under the Alaska
Executive Branch Ethics Act and related law."
MOVED CSSB 19(STA) OUT OF COMMITTEE
SENATE BILL NO. 20
"An Act relating to disclosure to the Alaska Public Offices
Commission of information about certain income received as
compensation for personal services by legislators, public
members of the Select Committee on Legislative Ethics, and
legislative directors subject to the Legislative Ethics Act; and
providing for an effective date."
MOVED CSSB 20(STA) OUT OF COMMITTEE
SENATE BILL NO. 45
"An Act relating to murder in the first degree."
MOVED CSSB 45(STA) OUT OF COMMITTEE
SENATE BILL NO. 36
"An Act relating to sentencing for the commission of certain
offenses influenced by alcohol and to the offense of consumption
of alcohol in violation of sentence."
SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: SB 19
SHORT TITLE: EXEC. BRANCH ETHICS:INTERESTS & ACTIONS
SPONSOR(S): SENATOR(S) FRENCH, ELTON, MCGUIRE, WIELECHOWSKI,
THOMAS, HUGGINS
01/16/07 (S) PREFILE RELEASED 1/5/07
01/16/07 (S) READ THE FIRST TIME - REFERRALS
01/16/07 (S) JUD, STA, FIN
01/22/07 (S) JUD AT 1:30 PM BELTZ 211
01/22/07 (S) Heard & Held
01/22/07 (S) MINUTE(JUD)
01/24/07 (S) JUD AT 1:30 PM BUTROVICH 205
01/24/07 (S) Moved CSSB 19(JUD) Out of Committee
01/24/07 (S) MINUTE(JUD)
01/26/07 (S) JUD RPT CS 5DP NEW TITLE
01/26/07 (S) DP: FRENCH, HUGGINS, WIELECHOWSKI,
THERRIAULT, MCGUIRE
01/30/07 (S) STA AT 9:00 AM BELTZ 211
01/30/07 (S) -- Rescheduled to 02/01/07 --
02/01/07 (S) STA AT 9:00 AM BELTZ 211
BILL: SB 20
SHORT TITLE: LEGISLATIVE DISCLOSURES
SPONSOR(S): SENATOR(S) FRENCH, ELTON, MCGUIRE, WIELECHOWSKI,
THOMAS, HUGGINS
01/16/07 (S) PREFILE RELEASED 1/5/07
01/16/07 (S) READ THE FIRST TIME - REFERRALS
01/16/07 (S) JUD, STA, FIN
01/22/07 (S) JUD AT 1:30 PM BELTZ 211
01/22/07 (S) Heard & Held
01/22/07 (S) MINUTE(JUD)
01/24/07 (S) JUD AT 1:30 PM BUTROVICH 205
01/24/07 (S) Moved CSSB 20(JUD) Out of Committee
01/24/07 (S) MINUTE(JUD)
01/26/07 (S) JUD RPT CS 2DP 3AM SAME TITLE
01/26/07 (S) DP: FRENCH, MCGUIRE
01/26/07 (S) AM: HUGGINS, WIELECHOWSKI, THERRIAULT
01/30/07 (S) STA AT 9:00 AM BELTZ 211
01/30/07 (S) -- Rescheduled to 02/01/07 --
02/01/07 (S) STA AT 9:00 AM BELTZ 211
BILL: SB 45
SHORT TITLE: PEACE OFFICER CONVICTED OF MURDER
SPONSOR(S): SENATOR(S) OLSON
01/16/07 (S) PREFILE RELEASED 1/12/07
01/16/07 (S) READ THE FIRST TIME - REFERRALS
01/16/07 (S) STA, JUD
01/25/07 (S) STA AT 9:00 AM BELTZ 211
01/25/07 (S) Heard & Held
01/25/07 (S) MINUTE(STA)
01/30/07 (S) STA AT 9:00 AM BELTZ 211
01/30/07 (S) -- Rescheduled to 02/01/07 --
02/01/07 (S) STA AT 9:00 AM BELTZ 211
WITNESS REGISTER
DAVE JONES, Senior Assistant Attorney General
Civil Division
Opinions, Appeals, and Ethics
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Answered questions regarding SB 19 and 20.
DAN WAYNE, Attorney
Legal Services Division
Legislative Affairs Agency
Juneau, Alaska
POSITION STATEMENT: Answered questions regarding SB 19 and 20.
JOHN FARLEIGH, representing himself
Anchorage, Alaska
POSITION STATEMENT: Spoke in favor of strong ethics legislation.
STUART THOMPSON
Ketchikan and Wasilla, Alaska
POSITION STATEMENT: Spoke in favor of strong ethics legislation.
WALT MONEGAN, Commissioner
Department of Public Safety
Juneau, AK 99811-1200
POSITION STATEMENT: Spoke in support of amendments to SB 45.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section
Criminal Division
Department of Law
Juneau, Alaska
POSITION STATEMENT: Answered questions regarding SB 45.
ACTION NARRATIVE
CHAIR LESIL MCGUIRE called the Senate State Affairs Standing
Committee meeting to order at 9:05:28 AM. Senators Green,
French, Stevens, Bunde, and McGuire were present.
SB 19-EXEC. BRANCH ETHICS:INTERESTS & ACTIONS
CHAIR MCGUIRE announced SB 19 to be up for consideration. The
committee was working from CSSB 19(JUD).
9:07:14 AM
DAVE JONES, Senior Assistant Attorney General, Civil Division,
Opinions, Appeals, and Ethics, Department of Law, said everyone
is after the same goal of improving the executive branch ethics
act and other disclosure and ethics requirements. He said
Governor Palin has introduced a bill, HB 109, which addresses
the same issue in Section 8. He said the governor's bill deals
strictly with a $5,000 standard and doesn't have the percentage
requirement for interest in a business as does the amended
version of SB19. He said the issue came up in the Senate
Judiciary Standing Committee.
9:08:37 AM
SENATOR FRENCH asked what lines he is referring to.
CHAIR MCGUIRE passed around the governor's bill, SB 64.
MR. JONES said he is referring to SB 19, pages 1 and 2, lines 12
to 20.
CHAIR MCGUIRE surmised that Mr. Jones wants a simple dollar
figure rather than a percentage limit.
9:09:54 AM
MR. JONES said the lines in SB 19 that refer to percentages are
lines 8, 11, and 12 on page 2.
CHAIR MCGUIRE said members of the judiciary committee expressed
concern about having only a dollar amount, and she asked why the
administration prefers not to use a percentage standard.
MR. JONES said a dollar amount is enough to consider whether a
public officer's interest is significant. Using a percentage
standard, "we could have one percent of a $1,000 venture, which
would be a $10 interest, and I'm not sure that's going to help
us in getting toward the ultimate goal." One of the consequences
of the amendment is that on lines 5 and 6 of page 2, a
controlling interest in a business is disqualifying if the
controlling interest has a fair market value of $5,000 or more,
he said. But on lines 8, 9, 11, and 12, a one percent interest
in a business, whether the value is $1 or $1 million, would be
disqualified. He said a person could be disqualified under those
lines, but under lines 5 and 6, a person would be disqualified
by only a controlling interest of $5,000 or more.
9:12:42 AM
SENATOR FRENCH said the point is well taken and asked for the
historical reason for the percentage standard in the bill.
MR. JONES said he can only speculate. Some folks may believe
that a one percent interest is easier to measure because there
may be times when it is difficult to assess the dollar value of
an interest. But, Mr. Jones said, it may be even more difficult
to determine the percentage value, especially for various values
and types of stock and stock options.
9:14:29 AM
CHAIR MCGUIRE recalled Representative Gara's point that in a
high value stock, like Exxon Mobile, a one percent interest
would be worth well more than $5,000. She noted that an
either/or provision works because sometimes the percentage value
gives more information than the dollar figure.
SENATOR STEVENS asked if the value is the current value or the
value at the time of purchase.
MR. JONES said current value is used because that is relevant,
and that is how the public would perceive it.
9:15:50 AM
SENATOR STEVENS said it would be easier to figure the dollar
value.
SENATOR BUNDE said he is supportive of the public being informed
and aware of potential conflicts. He suggested that the vagaries
of the stock market can make a person could go in and out of
compliance as the value of the stock changes.
9:16:42 AM
MR. JONES said that is certainly possible, and it is also true
for a percentage of ownership when shares are sold or issued.
SENATOR BUNDE asked about dealing in futures, which could vary
more than $5000 over a period of 24 hours. He said he is not
dealing in those and doubts that it would apply to him, but he
expressed concern for people who fall into inadvertent ethics
violations.
SENATOR FRENCH said owning one percent of an insignificant
company may not be realist. How many small companies issue
stock, "and how many executive branch employees actually own
shares in a company that is basically valueless and then take
action respecting that business?" Conversely, there is a
likelihood of owning one percent of a local real estate LLC or a
local tourism or restaurant business. He said all would agree
that a person should not take official action affecting that
investment while in state office. Mr. Jones' point is good, but
having both [percentage and dollar standard] will "capture it."
9:19:16 AM
MR. JONES said the provision is in SB 64 on page 6, lines 24 to
26. He continued:
What we propose, there, is a presumption that stock or
other ownership interest is insignificant if it's less
than $5,000 in value. The advantage of a presumption
is that it deals with both those situations where a
business interest really is significant and those
situations where, even though the value of that
interest may currently be less than $5,000, the
official action that the officer is taking has the
potential to really increase the value of that
interest. For example, if I have a $4,000 interest and
I can take action that will increase the value of that
interest to $40,000, this presumption allows us, under
the ethics act, to address that situation by saying:
OK, even though it's under $5,000 now, because this
would stand to benefit you so dramatically, you may
not, consistent with the ethics act, take official
action on that matter.
CHAIR MCGUIRE asked how that would play out. If there is no
disclosure, how would it be found out?
9:21:19 AM
MR. JONES said it would be the same process as is currently
followed, including self-reporting and reporting by others.
9:21:40 AM
CHAIR MCGUIRE closed testimony and offered Amendment 1, labeled
25-LS0160\K.2, Wayne, as follows:
Page 1, line 2, following "interest;":
Insert "prohibiting certain persons from engaging
in activity as lobbyists;"
Page 2, following line 20:
Insert a new bill section to read:
"* Sec. 2. AS 39.52.180(d) is amended to read:
(d) A former governor, lieutenant governor,
[OR] head or deputy head of a principal
department in the executive branch, chair of a
state board or commission which has the authority
to adopt regulations, or employee of the Office
of the Governor in a policy-making position may
not engage in activity as a lobbyist under
AS 24.45 for a period of one year after leaving
service as the governor, lieutenant governor,
[OR] department head or deputy head, chair of a
state board or commission which has the authority
to adopt regulations, or employee of the Office
of the Governor in a policy-making position, as
appropriate. This subsection does not prohibit
service as a volunteer lobbyist described in
AS 24.45.161(a)(1) or a representational lobbyist
as defined under regulations of the Alaska Public
Offices Commission."
Renumber the following bill section accordingly.
Page 2, following line 26:
Insert a new bill section to read:
"* Sec. 4. The uncodified law of the State of
Alaska is amended by adding a new section to read:
APPLICABILITY. Section 2 of this Act applies to a
person who leaves state service on or after the
effective date of sec. 2 of this Act."
SENATOR FRENCH objected.
CHAIR MCGUIRE said Amendment 1 would prohibit "certain persons
from engaging in activities as lobbyists." It expands that law
to apply to a deputy head, "and that's come from Governor Palin
herself." A deputy head can be fairly high up in negotiations on
certain issues, so it is not a bad provision, she stated. She
said she is expanding it to include chairs of state boards or
commissions that have the authority to adopt regulations or to
an employee of the office of governor in a policy-making
position. She noted an incident six years ago surrounding the
Regulatory Commission of Alaska (RCA) when the chair went
immediately into the private sector as a highly paid CEO of one
of the phone companies. "It rubbed a lot of people wrong, again,
it's the appearance of it. I'm not here to say it was real or
not, but it was the appearance of it that bothered people." A
chair of a regulatory authority may even have more power than a
lieutenant governor or a deputy head, she stated.
9:24:12 AM
SENATOR STEVENS asked who would be covered.
CHAIR MCGUIRE said she could get a list, but it is narrowed down
so not all boards and commissions are included. Hairdressers and
barbers would not be included, but only those that have the
authority to adopt regulations, including the RCA. She wasn't
sure about the railroad.
9:24:55 AM
DAN WAYNE, Attorney, Legal Services Division, Legislative
Affairs Agency, said he has been looking at who has the power to
adopt regulations. He said many boards and commissions do,
including those of limited entry, real estate, fisheries, game,
psychologists and psychological associates, and examiners. He
learned that some directors have the power to adopt regulations,
like the director of the insurance division. He said he is
trying to figure out a way to exclude commissions and boards
that mainly perform licensing functions.
9:26:17 AM
SENATOR FRENCH asked if the amendment would fix the
aforementioned scenario with the RCA.
SENATOR GREEN said the person went to work for someone she had
previously regulated.
SENATOR FRENCH noted that Amendment 1 only prohibits lobbying.
9:27:24 AM
CHAIR MCGUIRE said the language covers lobbying, which can
include lobbying the board that regulates the industry. A
telephone company would lobby the RCA, she explained.
SENATOR STEVENS said it goes back to the issue of definition.
Someone who serves the on the Board of Fish might not be allowed
to work for a fishing company, he said. He cautioned the
committee about denying legitimate opportunities to make a
living.
9:29:25 AM
SENATOR BUNDE said this is not a lifetime prohibition; it
requires someone to sit out for one year, and that may allow
some of those close personal relationships to cool. A year isn't
that long for a person with talent and experience.
9:30:02 AM
SENATOR GREEN referred to the Agriculture Conservation Board.
She was told that the legislature could not approve the
governor's appointments because of their fiduciary
responsibility. There is another level of boards that adopts
regulations and has control over money, she noted.
CHAIR MCGUIRE said there is a broader discussion as to whether
working for a company is allowed, but the amendment says a chair
with significant power can't engage as a lobbyist for one year.
People will still be able to go work for a fisheries company
after serving on the Board of Fish, but they just can't be a
lobbyist to lobby the very board they just chaired in a policy
role for one year. "You don't want to have a situation where the
appearance or reality is that somebody is using that year as an
opportunity to curry favor to steer regulating-writing
authority, decision making or negotiations in a direction of
somebody who they will ultimately benefit from privately."
9:32:57 AM
SENATOR STEVENS asked why the language should stop at the chair,
and not the members, like the members of the Board of Regents.
They all have enormous power, he stated.
MR. WAYNE said the rest of AS39.52.180 doesn't show up in the
bill, but it says that a public officer who leaves state service
may not represent or advise for compensation regarding a matter
that was under consideration by the administrative unit served
by that public officer for two years. He said that seems to
address the person who left the RCA to work for a utility
company. "Although it doesn't talk about lobbying," he said. He
stated that he doesn't know why the amendment language is
limited to the heads of the boards. In response to Senator
Green, he said he thinks the language could say that boards and
commissions that fall under AS 08.01.010 would be excluded from
the provision, because that is a chapter that deals with
centralized licensing. It doesn't include things like limited
entry, fisheries, and the regulatory board. But it includes
licensing boards, like nursing, pharmacy, big game commercial
services, dental services, "and things of that nature."
CHAIR MCGUIRE said that is the chapter under centralized
licensing.
9:36:18 AM
SENATOR STEVENS asked if Mr. Jones is saying that a member of
the RCA would have less opportunity for mischief than the chair.
MR. WAYNE said he is not saying that, but obviously the chair
has a different type of authority and some may say it is
greater. But other members, including a person with the swing
vote, can have tremendous power.
9:37:13 AM
CHAIR MCGUIRE offered an amendment to Amendment 1 that will
"exempt those boards and commissions under AS 08.01.010 in
centralized licensing." She said that includes boards like
veterinarian examiners, concert promoters, and midwives. She
said, "So I'll do it as a conforming amendment and give you the
latitude to put it where you think is appropriate." Hearing no
objection, Amendment 1 to Amendment 1 carried.
SENATOR FRENCH offered a second amendment to Amendment 1. "It
looks as if we're capturing the governor, lieutenant governor,
commissioners, now deputy commissioners." He said he would like
to add division directors because many of them, particularly in
oil and gas, the Department of Environmental Conservation, and
with tax or revenue duties "just carry enormous amounts of power
over industries that they're regulating and to let them turn
around and come back as lobbyists immediately, I think strikes
many folks as being a little too close." The person may be able
to get a job in private industry using knowledge gained in the
public, but to come back in the halls and lobby a month later
"is a little too close," he explained.
9:39:30 AM
CHAIR MCGUIRE saw no objection, therefore Amendment 2 to
Amendment 1 carried.
SENATOR STEVENS maintained his objection to Amendment 1, as
amended.
SENATOR GREEN said executive directors of boards "are far more
powerful than the chair." The executive director sets out the
agenda and determines what is on the calendar.
CHAIR MCGUIRE said it is up to the committee, but perhaps that
should be another amendment after Amendment 1. A roll call vote
was taken on Amendment 1. Senators French, Green, Bunde,
Stevens, and Chair McGuire all voted in favor; therefore,
Amendment 1, as amended, carried.
9:41:23 AM
CHAIR MCGUIRE asked if the executive directors of these boards
and commissions should be included in the legislation.
SENATOR FRENCH said he needs more information about who the
individuals are and if they are state employees.
CHAIR MCGUIRE asked if there is any statutory reference to that.
MR. WAYNE said he is looking it up.
SENATOR GREEN said executive directors are generally hired by
the boards.
9:42:48 AM
CHAIR MCGUIRE asked if all boards get an executive director.
SENATOR GREEN said she didn't know but some are handled through
the division and many have a single executive director. "This
may be going way deeper than we want to go, particularly without
testimony," she noted.
CHAIR MCGUIRE said the bill goes to the Senate Finance Committee
and the issue could be explored prior to that hearing. It would
give Mr. Wayne time to consider it as well.
SENATOR FRENCH moved SB 19, as amended, from committee with
individual recommendations and accompanying fiscal notes. There
being no objection, CSSB 19(STA) moved out of committee.
The committee took and at-ease from 9:44 to 9:47.
SB 20-LEGISLATIVE DISCLOSURES
9:47:09 AM
CHAIR MCGUIRE announced the consideration of SB 20.
JOHN FARLEIGH, Anchorage, said he is a fourth-generation
Alaskan, and he is speaking for himself. He said his testimony
addresses the ethics of any policy maker, legislative or
executive, and not just a specific bill. He said testifiers
mention their length of residency in Alaska, implying that an
opinion is more valuable for those who have been in Alaska
longer, but "I personally don't subscribe to that theory." But
he noted a recent television news interview of a young couple
who had just moved to Alaska and had used the term "back home,"
referring to where they came from. "For me, as a fourth-
generation Alaskan, this is back home; I have no other home."
MR. FARLEIGH said he is deeply embarrassed that the federal
government has to clean up Alaska's mess. He noted that there
have been obvious signs for years "about things that didn't seem
right, and yet nothing was done" until the FBI came to
investigate the legislature. "It's embarrassing to me as an
Alaskan that we're viewed as a corrupt state." He said it is
time to change that. Any policy maker should be held to a high
standard, and even the appearance of impropriety needs to be
dealt with. "We need to be able to trust our government," he
stated. He said that suggestions reported in the news sound
good, including not allowing legislative spouses to be
lobbyists, but it should be expanded to any immediate family
member because they are all possible conduits for bribes and
should be under scrutiny. His son noticed the warning on a movie
he watched last night that a person could spend five years in
jail for copying a movie. He said his son then asked why a
politician who breaks the law could be fined only $5,000. "If
our policy makers sell us out for their own benefit, there ought
to be significant penalties," including six-figure fines and
jail time for egregious violations, he opined.
9:51:26 AM
MR. FARLEIGH said the fines are not adequate to dissuade
policymakers from operating for their own benefit instead of the
benefit of all Alaskans.
CHAIR MCGUIRE said she appreciated the testimony.
STUART THOMPSON, Ketchikan and Wasilla, said he represents only
himself, and he appreciates the help from Senator French's
office. He noted that he had a 4.5-minute statement regarding
all ethics legislation, including SB 20. He told the committee
that lawmakers are not inherently evil, but they are humans who
need support to resist temptations that appeal to their
imperfections. He said the natural imperfections of people are
why government is even necessary. "How to govern the governors
is what defines the form of government; in other words, a form
of government is any design for minimizing corruption and poor
administration by those wielding government powers," he stated.
He said that makes the conceptual understandings of the
constitutions, and their philosophical foundations, the most
powerful resource for dealing with political corruption, "short
of the supreme being." He suggested that lawmakers use the
following wisdom of Socrates: inadequate comprehension of a
subject's key words prevents the affected person from
understanding the subject well enough to constructively apply
it. He said the dictionary provides five easy definitions for
"corrupt."
[The testimony was interrupted by a busy signal.]
9:54:10 AM
CHAIR MCGUIRE said a copy of Mr. Thompson's testimony is in the
committee packet, "so it will be included into the public record
indelibly."
9:54:29 AM
CHAIR MCGUIRE closed public testimony on SB 20. She offered
Amendment 1, labeled 25-LS0161\M.4, Wayne, as follows:
Page 1, lines 1 - 2:
Delete "of information about certain income
received as compensation for personal services"
Page 1, following line 5:
Insert a new bill section to read:
"* Section 1. AS 24.60 is amended by adding a new
section to article 2 to read:
Sec. 24.60.115. Disclosure required of a
legislator, legislative employee or public member of
the committee after final day of service. A person
serving as a legislator, legislative employee, or
public member of the committee shall, not later than
90 days after the person's final day of service, file
a disclosure of every matter that was subject to
disclosure under this chapter while the person was
serving."
Page 1, line 6:
Delete "Section 1"
Insert "Sec. 2"
Renumber the following bill sections accordingly.
Page 2, following line 21:
Insert a new bill section to read:
"* Sec. 3. The uncodified law of the State of
Alaska is amended by adding a new section to read:
APPLICABILITY. (a) Section 1 of this Act applies
to a person serving as a legislator who leaves service
on or after the effective date of this Act, and to a
person who is not a legislator but served as a
legislator between April 9, 2006, and the effective
date of this Act.
(b) A person who is not a legislator on the
effective date of this Act but who served as a
legislator between April 9, 2006, and the effective
date of this Act shall make the disclosure required by
AS 24.60.115, added by sec. 1 of this Act, within 90
days after the effective date of this Act."
Renumber the following bill section accordingly.
CHAIR MCGUIRE said Amendment 1 closes a loophole that appears to
be in statute. A lawmaker has to disclose any income over $1000,
and the amendment makes it clear that during the time after a
lawmaker is defeated or not running again, the reporting is
still required. She said she didn't know how it has been done in
the past, but this closes the gap and makes it clear that "you
can't spend your last year in office…doing what you want…as a
legislator and then not disclosing that income received." The
more controversial part of the amendment (taken from the
governor's bill) is the inclusion of legislative employees. The
amendment is not controversial on the whole but requiring
legislative employees to be subject to the same financial
disclosures as members might be, she noted.
9:57:14 AM
SENATOR GREEN said employees should not be in the bill. She
asked who "the public member of the committee," as listed in
line 9, refers to.
SENATOR FRENCH said he believes that refers to the five public
members of the Select Committee on Ethics.
9:57:50 AM
SENATOR STEVENS asked about the reporting schedule for
legislators.
CHAIR MCGUIRE said a legislator reports on March 15 and it
covers the preceding fiscal year, so members who are on the
fourth year of a four-year term, "they're no longer a lawmaker."
She said she thinks it's been unclear, as reported by the ethics
advisor, because some members report and some don't. It would
clarify that all members, even if they have left office, are
required to report.
SENATOR FRENCH said it also closes the gap in early January
prior to the swearing in of new members that has been outside
the disclosure requirements.
9:59:22 AM
SENATOR STEVENS said there is often a special session in
November, so why not leave the March 15 reporting date, rather
than 90 days after a person's final day? He said he understands
the testimony, but there is a real onus on a legislator to keep
all of these reporting dates in mind.
10:00:31 AM
CHAIR MCGUIRE said it doesn't cover 90 days after serving, it is
saying that, no later than 90 days after the final day of
service, the person must file. For example, a lawmaker that was
defeated this year would have been holding office right up to
January 16, and "what we want to do is say that the disclosure
is going to go all the way up until that day, so … on the fifth
or sixth of January, while you are still technically … a member
of the legislature, [you couldn't] get some kind of lucrative
contract and then use this loophole to fail to disclose it."
SENATOR STEVENS said the disclosure would still be on March 15.
SENATOR FRENCH said the last day of the session is not the
operative date; it is the last day that one is officially in
office. He said he is trying to get all the reporting
requirements lined up to one date.
10:02:22 AM
DAN WAYNE, Attorney, Legal Services Division, Legislative
Affairs Agency, said the select committee on legislative ethics
looked at whether legislators should report for that tail end of
their term. Up until recently there has been advice that they
need not, because statute states that a provision of the code
does not apply to former legislators, unless it specifically
states that it does. So, the code was interpreted as not
requiring them to report. The ethics committee came out with an
advisory opinion that the statute does require former
legislators and employees to report just like everybody else
with respect to anything that happened while they were serving.
But the misleading language still exists. An advisory opinion is
not the same thing as a statute.
MR. WAYNE said the amendment covers the 30 days before the end
of the regular session to the beginning of the next regular
session. So everything is reported on March 15. Some people were
not reporting thinking they didn't have to because they were
leaving office. This statute would say that all of those people,
in that time period between the two sessions, would have 90 days
from the time of leaving service to file that report, he said.
SENATOR BUNDE said it is 90 days after leaving service and not
related to the session. He noted an occasion of a legislator
coming to Juneau and being sworn in and getting an office
allowance and then resigning. That's not ethical, but people do
leave service at other times other than when their replacement
is sworn in. A person could resign midterm, he stated.
10:07:53 AM
SENATOR FRENCH asked who is a legislative employee.
MR. WAYNE said anyone who is on the state payroll in the
legislature and who is not a legislator.
MR. WAYNE said it includes pages, legislative staff, legislative
legal services, and everyone in the building he works in.
10:09:16 AM
CHAIR MCGUIRE said the amendment was designed to close the gap,
and the drafter took it right out of Governor Palin's bill.
SENATOR FRENCH moved Amendment 1 to Amendment 1 to strike
legislative employee from lines 8 and 10.
SENATOR BUNDE objected. He said a page will likely not become a
lobbyist, but a chief of staff may be of concern. He asked if
that person is already required to make a financial disclosure.
10:10:27 AM
CHAIR MCGUIRE said the committee doesn't want to go backward.
SENATOR FRENCH said this is not about being a lobbyist but an
annual financial disclosure of all investments. It may be worthy
of a separate discussion for the type of legislative employee
with tremendous influence, but this is about annual disclosures
for all legislative employees, "and I need to be convinced."
SENATOR BUNDE said it is not something that needs to be pursued.
CHAIR MCGUIRE said legislative employees are now required to
report close economic associations as to roommates or campaign
work. She asked if removing legislative employees from the
amendment will take away anything that is now on the books.
10:12:14 AM
MR. WAYNE said he needs to clear up the confusion. The
governor's bill and SB 20 without the amendment are only talking
about financial disclosures under AS 24.60.200. Legislative
employees are not currently required to make those, he added.
The loophole allowing people to avoid disclosures during the gap
between sessions was relevant to everyone including employees.
He noted the economic association and gift disclosures.
CHAIR MCGUIRE said so "this amendment is not changing the
statute with respect to what legislative employees are required
to disclose…what it's doing is saying that whatever those
disclosures are, as outlined in Title 24, they remain, but we're
going to close the gap for them as well."
10:13:48 AM
MR. WAYNE said he couldn't have said it any better.
DAVE JONES, Senior Assistant Attorney General, Civil Division,
Opinions, Appeals, and Ethics, Department of Law, said SB 64
addresses this issue in Section 3, page 3, lines 7-11. "In the
governor's bill we did not extend the disclosure requirements to
legislative employees, but merely to the legislative director."
MR. WAYNE said the way he read the governor's bill is it only
dealt with the financial disclosure requirements of AS
24.60.200, and he assumes that was why legislative employees
were not added, because they are not listed under the disclosure
requirement. But the governor is also addressing the loophole
and leaving legislative employees out. What he drafted would do
the same thing, but it would also close the loophole with
respect to reporting requirements under other sections by
legislative employees. "Since the legislative director is a
legislative employee…"
10:15:34 AM
SENATOR FRENCH withdrew his amendment to Amendment 1.
SENATOR STEVENS withdrew his objection. Hearing no further
objections, Amendment 1 carried.
CHAIR MCGUIRE asked about the spousal lobbying provision, "and I
think it probably is a good one; I just don't know how to draft
it on the fly." She asked for help from Mr. Wayne.
10:16:30 AM
MR. WAYNE said he couldn't come up with it "on the fly."
CHAIR MCGUIRE moved Amendment 2, labeled 25-LS0161\M.3, Wayne,
as follows:
Page 1, line 4, following "Act":
Insert "relating to the applicability of the
Legislative Ethics Act;"
Page 1, following line 5:
Insert a new bill section to read:
"* Section 1. AS 24.60.020(a) is amended to read:
(a) Except as otherwise provided in this
subsection, this chapter applies to a member of the
legislature, to a legislative employee, and to public
members of the committee. This chapter does not apply
to
(1) a former member of the legislature or
to a person formerly employed by the legislative
branch of government unless a [THE] provision of this
chapter specifically states that it applies;
(2) a person elected to the legislature who
at the time of election is not a member of the
legislature."
Page 1, line 6:
Delete "Section 1"
Insert "Sec. 2"
Renumber the following bill sections accordingly.
MR. WAYNE noted the wording problem in the applicability section
of the Legislative Ethics Act that caused some to think that
former legislators didn't have to report for the last half of
the year. Amendment 2 just changes "the provision" to "a
provision of this chapter," he stated. "So if you read this
together with the amendment that just passed about disclosures
required of former legislators, and so forth…the amendment that
just passed would be the provision of the chapter that
specifically states that the whole chapter is applicable to
everybody, regardless of whether they're serving or not."
10:18:03 AM
CHAIR MCGUIRE said it is a technical amendment.
SENATOR FRENCH withdrew his objection. Hearing no further
objections, Amendment 2 carried.
The committee took an at-ease from 10:18:15 to 10:18:43 AM.
10:18:47 AM
CHAIR MCGUIRE said there is no time to consider spousal
lobbying, and it can be worked on before the bill goes to the
Senate Finance Committee.
SENATOR FRENCH moved SB 20, as amended, with attached fiscal
notes from committee with individual recommendations.
SENATOR BUNDE objected in order to comment. He said the
legislature listened to an ethics expert and one of his points
was to try to "do this as a single bill and not a piecemeal. I
would just note that we appear to be ignoring his advice." He
removed his objection.
10:19:38 AM
SENATOR GREEN said the man also said an omnibus bill failed
under its own weight. "So there are a lot of ways to get to the
solution on this."
SENATOR FRENCH said he can't resist echoing that. "I think
today's proceeding really is a perfect example of why you need
several small bills moving through the system, because as you
add provisions, you weigh them down and it just makes it more
difficult to actually get the bill to the finish line."
10:20:15 AM
CHAIR MCGUIRE announced that, hearing no further objections,
CSSB 20(STA) passes out of committee with individual
recommendations and attached fiscal notes.
^#SB45
SB 45-PEACE OFFICER CONVICTED OF MURDER
CHAIR MCGUIRE announced SB 45 to be up for consideration. She
said previous discussions centered on the color of authority.
She noted Amendment 1 with Senator Olson's name attached. She
added her own and Senator French's name to it. Amendment 1,
labeled 25-LS0183\A.1, Luckhaupt, is as follows:
Page 2, line 9:
Delete "was on duty at the time of"
Insert "used the officer's authority as a peace
officer to facilitate"
CHAIR MCGUIRE said Amendment 1 gets at what she thinks was
agreed by the committee unanimously, which was to clarify that
the bill is not just for a peace officer committing murder, but
for one who uses the color of authority to do so. Hearing no
objection, Amendment 1 carried.
SENATOR BUNDE moved Amendment 2, as follows:
Page 2
Line 9 delete (5)
and add (5) "the court finds clear and convincing
evidence that the defendant as a peace officer
abused his or her duty and authority at the time
of the murder."
CHAIR MCGUIRE objected.
The committee took an at-ease from 10:22:05 AM to 10:23:12 AM.
SENATOR BUNDE explained his amendment. He said "this is a very
egregious case, and we certainly don't want to see anything like
this happen again." However, he wants the bill to "do no harm"
and not have "unintended consequences when a police officer has
to face that life-changing decision as to whether to use deadly
force." Commissioner Monegan described what goes through a
person's mind, he said. The amendment "would not reduce the
attempt to make sure that police officers don't abuse" their
color of authority. "But it also may reduce that additional
millisecond pause that a police officer might have to review in
his mind before he does make the decision to use deadly force
and inhibit him from doing his job as he ought to do it."
10:25:23 AM
CHAIR MCGUIRE suggested that Senator Bunde's amendment would
nullify the previous amendment, because it is another way of
saying it. "So your language would say, instead, the court finds
clear and convincing evidence that the defendant, as a peace
officer, abused his or her authority at the time of the murder.
So you're putting in a standard: clear and convincing." She
asked what the current standard is and if it is beyond a
reasonable doubt.
SENATOR FRENCH said that for a sentencing provision he believes
that one has to prove every element beyond a reasonable doubt.
CHAIR MCGUIRE surmised therefore that clear and convincing is a
lower standard. "It's unusual."
The committee took and at-ease from 10:26:35 AM to 10:27:33 AM.
CHAIR MCGUIRE said everyone is trying to get at the same goal.
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law, said Senator
Bunde's amendment is included in Amendment 1, which has been
adopted. She said she would prefer to just use the word
"authority" and not "duty and authority." She added that it is
important to include the term "facilitate" because Matt Owen
[the peace office who committed murder] used his authority to
get the victim in the car. At a certain point he wasn't on duty,
she noted. Current statute states that factual findings in Title
12 have to be proved by a preponderance of evidence, unless
certain things occur. "You could put it…under paragraph 3, and
you should probably also…add it in the sentencing procedure
statutes, which say: preponderance of the evidence unless…for
example, some aggravating factor we have to prove by clear and
convincing evidence. And it is true, that at this point, since
we are dealing with maximums, Blakely doesn't apply."
10:29:39 AM
CHAIR MCGUIRE said that preponderance of the evidence is a lower
standard than "clear and convincing," so if "clear and
convincing" were added, it would mean that the prosecution must
meet a higher threshold to show that a peace officer abused
authority. "Why would we want to do that?" she asked.
MS. CARPENETI said, "For the reasons expressed by Senator
Bunde." She said the state would need to prove it by a higher
standard. Preponderance is 51 percent, and clear and convincing
is a little higher.
SENATOR BUNDE said, "We do currently use it in the torture, and,
again, as someone has to make that life-changing decision of
whether to use deadly force or not…we don't add additional
burdens to the police officer while still punishing those…" He
then asked if Ms. Carpeneti was familiar with other officers
committing murder while on duty.
10:30:58 AM
MS. CARPENETI said this is first such case in 50 years of
statehood. She noted that these sentencing factors apply only
after someone is found guilty of murder in the first degree.
CHAIR MCGUIRE said in the case of Sonya Ivanoff there was a
separate trial on the torture, and the statute already read "by
clear and convincing evidence," so that was met. She then
stated that she was confusing two cases. "In this case, you got
99 years. The law wasn't on the books, so there was no standard
of proof. If there had been a law on the books, and it had been
difficult to get the mandatory 99, and the law had read 'clear
and convincing evidence', do you believe you would have been
able to meet that standard?"
MS. CARPENETI said she could ask the prosecutor. She said that
case had no mandatory maximum, "and we were able to prove by no
particular standard of proof that the court should impose the
maximum, for the reasons that are really inherent in the
purposes of the bill."
10:33:00 AM
WALT MONEGAN, Commissioner, said he supports Amendment 2 while
striking out the word "duty." That would resolve his concern of
creating another hesitation [in an officer's decision to use
deadly force]. He wanted a clear distinction from being a police
officer and being a predator. He noted that the officer deserved
the sentence he got, "I just don't want to cause that
hesitation."
CHAIR MCGUIRE said there is a way to get at the same idea.
Working with the adopted amendment, insert, on page 2, line 9,
(before the new language) "the court finds by clear and
convincing evidence that the defendant used the officer's
authority as a peace officer to facilitate". So Senator Bunde's
amendment would be to insert: the court finds by clear and
convincing evidence that the defendant.
10:35:14 AM
SENATOR BUNDE asked if he should withdraw Amendment 2 and offer
Amendment 2a.
CHAIR MCGUIRE said yes. Amendment 2a has been offered, she said,
as follows:
Page 2, line 9:
Insert: "the court finds by clear and convincing
evidence that the defendant"
SENATOR FRENCH said it would now read:
"the court finds by clear and convincing evidence that
the defendant is a peace officer who used the
officer's authority as a peace officer to facilitate…"
10:36:30 AM
CHAIR MCGUIRE said that is better. Hearing no objections,
Amendment 2a carried.
SENATOR STEVENS moved Amendment 3, labeled 25-LS0183\A.2,
Luckhaupt, as follows:
Page 1, following line 2:
Insert a new bill section to read:
"* Section 1. The uncodified law of the State of
Alaska is amended by adding a new section to read:
SHORT TITLE. This Act may be known as the Sonya
Ivanoff Act."
Page 1, line 3:
Delete "Section 1"
Insert "Sec. 2"
Renumber the following bill section accordingly.
Page 2, line 13:
Delete "Section 1"
Insert "Section 2"
Hearing no objection, Amendment 3 carried.
SENATOR GREEN asked about using the term "law" instead of "act".
SENATOR FRENCH said these specifically-named titles have
recently been taken out of the law. He said he always votes to
take them out of the law, and he will object for consistency.
10:38:10 AM
CHAIR MCGUIRE said it has already carried, so Senator French
will need to offer another amendment.
SENATOR FRENCH said he will not make an issue of it.
CHAIR MCGUIRE said there was a healthy debate in the Senate
Judiciary Standing Committee, and she suspects the issue will
come up again.
SENATOR GREEN moved SB 45, as amended, from committee with
individual recommendations and accompanying fiscal notes.
SENATOR BUNDE reiterated that it was an egregious case and not
common for this to happen, and he hopes it won't happen again.
He noted that the bill is a thoughtful reaction, and not a knee-
jerk reaction.
CHAIR MCGUIRE heard no further objections, so CSSB 45(STA) moved
out of committee.
The Senate State Affairs Standing Committee meeting was
adjourned at 10:39:55 AM.