HB 235-CONFIDENTIALITY OF APOC COMPLAINTS  CHAIR KELLER announced that the first order of business would be HOUSE BILL NO. 235, "An Act requiring the Alaska Public Offices Commission to maintain the confidentiality of certain proceedings, documents, and information." 1:11:19 PM REPRESENTATIVE BOB LYNN moved to adopt the Committee Substitute (CS) for HB 235, Version 28-LS1130\Y, Bullard, 3/27/14 as the working document. REPRESENTATIVE GRUENBERG objected. 1:12:03 PM REPRESENTATIVE PETE HIGGINS, Alaska State Legislature, turned the discussion over to his staff. THOMAS STUDLER, Staff, Representative Pete Higgins, Alaska State Legislature, noted an addition to the title of HB 235 regarding sanctions for those who file false or frivolous complaints [to the Alaska Public Offices Commission (APOC)]. A new paragraph was added to Section 1 to say that the proceedings relating to an investigation are confidential until it is determined that a violation has occurred. In Section 2, he said the following was added: Except to the extent that the confidentiality provisions are waived by the subject, the complainant shall keep confidential the fact that they have filed a complaint under this section, as well as the contents of the complaints filed. If the complainant violates any provision of the confidentiality, the commission shall immediately dismiss the complaint; however, the dismissal of the complaint does not affect the right of the commission or any other person to initiate a complaint based on the same factual information. 1:13:35 PM MR. STUDLER said that a new subsection was added in Section 3 to allow for appealing the APOC decision to the Superior Court by either the complainant or the respondent within 30 days of the decision. He added that Section 4 was amended by adding that the complaint and all documents relating to the investigation are confidential until it has been determined that a violation has occurred. "We went on by adding a new [subsection], (m)," to further define that within 30 days after accepting the complaint, the commission shall determine whether the facts substantiate an allegation and whether there is credible evidence for further investigation and proceedings. The commission may delegate this duty to make that determination to an employee/investigator of the commission to expedite the process, he said. 1:14:40 PM MR. STUDLER turned to Section 5, which says that the commission needs to make a determination, based on the facts before it, whether the allegation has merit. "One of the things that we added in here is that ... if you make a false claim ... the commission shall dismiss the complaint and order the complainant to reimburse the respondent for his costs and court costs." The respondent is to reimburse APOC as well, he said. Additionally, APOC may decline to consider any further complaints filed by that particular individual. The CS also includes [subsection (o)] as follows: The sanctions authorized in this section are not exclusive and do not preclude any other remedies or rights of action the respondent may have against the complainant. MR. STUDLER stated that the updates are to protect the process of APOC so that when complaints are brought forward, they are in good faith and have merit. 1:16:32 PM REPRESENTATIVE LYNN asked about a complaint with multiple allegations and one is deemed to be frivolous. MR. STUDLER said he believes that the allegations with merit would go forward. 1:17:37 PM REPRESENTATIVE LYNN asked how APOC would be reimbursed. MR. STUDLER answered that if the person files allegations and some were substantiated and others were not, he believes the commission would have to look at the clear and convincing evidence of whether the allegations were filed in bad faith. Since some of the allegations were upheld, "I would have to say that would not be in bad faith, because there was merit to those cases." He added that he did not want to speak for the commission. 1:18:32 PM REPRESENTATIVE LYNN said he would like to have that clarified. PAUL DAUPHINAIS, Executive Director, Alaska Public Offices Commission, Alaska Department of Administration, said he is not authorized to speak for the commission, and "we try not to deal with hypotheticals." 1:19:25 PM REPRESENTATIVE GABRIELLE LEDOUX asked about a complaint being dismissed and the complainant decides to file an appeal with the Superior Court, "then are all records of the Superior Court sealed?" Normally things are openly filed with the Superior Court, she explained. If the idea is to have information confidential until there has been a decision that an APOC rule has been violated, "what are you going to do with the Superior Court?" 1:20:21 PM MR. STUDLER said he will get back on that. REPRESENTATIVE NEAL FOSTER noted the changes in Section 4, where all documents relating to an investigation are confidential until it is determined that a violation has occurred. "If no violation occurs, is there any provision that maybe the documents do become open, but maybe not for, say, a period of six months?" MR. STUDLER said "we" had not thought about that. He said he would have to respond later. 1:21:35 PM REPRESENTATIVE HIGGINS said he sees no reason why an allegation without merit should become public. The purpose of HB 235 is to ensure that only violations with merit become public. "You're thinking that for historical reasons you want to put it in there, but as an individual and a citizen of the state, I don't see where that would be." He said he cannot speak for the commission on that issue because he really has not thought about it. 1:22:38 PM REPRESENTATIVE LYNN asked if the exonerated defendant can request that the allegation become public in order to expose what a "rotten" person the complainant is. REPRESENTATIVE HIGGINS said, yes, there is a provision allowing the defendant to waive confidentiality. 1:23:14 PM REPRESENTATIVE FOSTER said he totally understands that side, but he thought that people might want to know what happened, and the file could become open "sometime down the road" for the sake of transparency. He noted that he did not feel strongly one way or another. REPRESENTATIVE GRUENBERG said he spoke with Mr. Studler about the bill extensively. This is the only APOC bill the committee is likely to see this year, he stated, and he has a couple of concerns. This year's APOC report made one suggestion for a legislative change. He noted that the legislators used to have to do a post-election 10-day report. The APOC report suggested reinstituting that obligation, which requires legislators to review their contributions and expenditures that occurred in a flurry a few days before the election. "As it is now, there is no post-election report for months, and so huge $100,000 fines accrue, and if we did a simple report to recap that 10 days after, that would probably catch a lot of these things and bring those potential fines back into line." 1:25:44 PM REPRESENTATIVE GRUENBERG noted that the statute, AS 15.13.390(a), states that if a person violates the law by not having a properly completed and certified report, like if something is missing or if the report is late, there is a civil penalty of not more than $500 per day. He said APOC has a regulation, 2AAC50.855, which states that the amount of the penalty must be determined by multiplying the daily maximum by the number of the days the report was late or incomplete. "It changes a maximum into a benchmark and results in huge unfair fines," he stated. "It is terrifically unjust, and what they have to do now is apply mitigators that really don't apply-just to bring this back into line." REPRESENTATIVE LANCE PRUITT asked if Representative Gruenberg is indicating that there should be a report a week or two after the election instead of the one due on February 15. 1:28:22 PM REPRESENTATIVE GRUENBERG said it would not eliminate the year- end report; it would be in addition to it. Legislators once had to do it and "we simply repealed it because it was extra work." The result has been people getting hit with huge fines because they messed up in some manner, and the mistake was not caught for three months because people do not look at the reports until they do their next one. By reinstituted the above-mentioned report, people will triple check, which will eliminate the fines except for the 10-day period. CHAIR KELLER announced that HB 235 was set aside. 1:31:20 PM