SB 64- DISCLOSURES & ETHICS    1:38:09 PM  CHAIR FRENCH announced the consideration of SB 64, Version \E committee substitute (CS). CHAIR FRENCH motioned to adopt Amendment 1, labeled 25- GS1059\E.5, and Senator Huggins objected for discussion purposes. A M E N D M E N T 1 OFFERED IN THE SENATE BY SENATOR FRENCH TO: CSSB 64(JUD), Draft Version "E" Page 1, line 1, following "Act": Insert "relating to bribery, receiving a bribe,  and receiving unlawful gratuities;" Page 1, following line 9: Insert a new bill section to read:  "* Section 1. AS 11.56.130 is amended to read: Sec. 11.56.130. Definition. In AS 11.56.100 - 11.56.130, "benefit" has the meaning ascribed to it in AS 11.81.900 but does not include (1) political campaign contributions reported in accordance with AS 15.13 unless the  contribution is made or received in exchange for an  agreement to alter an elected official's or  candidate's vote or position on a state administrative  matter or a legislative or municipal matter; (2) concurrence in official action in the cause of legitimate compromise between public servants; or (3) support, including a vote, solicited by a public servant or offered by any person in an election." Page 1, line 10: Delete "Section 1" Insert "Sec. 2" Renumber the following bill sections accordingly. Page 5, following line 10: Insert a new bill section to read:  "* Sec. 8. The uncodified law of the State of Alaska is amended by adding a new section to read: APPLICABILITY. Section 1 of this Act applies to offenses occurring on or after the effective date of section 1 of this Act." Renumber the following bill sections accordingly. Page 5, line 11: Delete "Section 2" Insert "Section 3" Page 5, line 12: Delete "Section 4" Insert "Section 5" Page 5, line 13: Delete "secs. 7 and 8" Insert "secs. 9 and 10" CHAIR FRENCH explained that Amendment 1 intends to close a loophole that came to light with a legislative legal opinion that said that it is not against the law for a candidate to receive a bribe in the form of a campaign contribution. The idea behind the amendment is that the quid pro quo of a contribution in exchange for a promise of an agreement to alter a position on an administrative, legislative, or municipal matter is precluded. 1:41:48 PM SENATOR McGUIRE arrived. 1:42:59 PM SENATOR THERRIAULT, noting that the crime of bribery did and still does exists, asked if this addresses only a change in position or also the situation of a contribution that is accompanied by a wink and nod to continue to maintain a particular position. Stating that he would show the door to the person either way, he questioned whether the latter is any less a bribe. CHAIR FRENCH replied it's important for the public to know that most ethical candidates take the position that they were elected because of their good judgment and ability to be fair and not because they promised to do something in the future. SENATOR HUGGINS commented that it also talks about the other person's intent. CHAIR FRENCH explained that someone could give a contribution with the intent to effect a change in position, but for the loop to close the promise must come back in exchange. SENATOR HUGGINS focused on the words "contribution is made or received" and said "it appears that you're being held accountable for somebody else's conduct, potentially, versus your own." CHAIR FRENCH, agreeing that both parties would be equally culpable, said he wouldn't dispute that there will always be proof problems. 1:46:59 PM SENATOR McGUIRE summarized that this wouldn't apply unless it could be proved that there was intent to alter an elected official's position in exchange for a contribution. CHAIR FRENCH added that it's the agreement that protects candidates and elected officials from false charges and false accusations. 1:48:26 PM SENATOR WIELECHOWSKI proposed the committee expand on the word "alter" on line 11 to address situations such as, "Keep this position and I'll give you $500." SENATOR THERRIAULT questioned whether receiving money to switch a position is any different from receiving money to maintain a position. CHAIR FRENCH urged caution. Because most elected officials state emphatic support for something or someone at one time or another, he suggested that could be far more problematic. He reminded the committee that the essence of bribery is changing your mind or buying your influence in a corrupt way that didn't already exist. SENATOR THERRIAULT asked if the exception in the statutes allows bad acts. CHAIR FRENCH said that under current statute he believes it is perfectly legal for someone to say "I can gather up $20,000 in campaign contributions if you promise me you'll never vote for X or Y." SENATOR THERRIAULT commented it would be interesting to know the discussion that took place when the statutes were crafted to clarify the reason for the exception. 1:52:10 PM SENATOR McGUIRE mused that it's not unheard of for an elected official to change his/her mind on an issue as a result of increased understanding of a subject. Hypothesizing about changing her mind about tort reform, she asked if it could be interpreted as a violation if the trial lawyers association were to contribute to her campaign after learning that she had changed position. CHAIR FRENCH said the contribution was not made in exchange for an agreement to change position; the change came first. SENATOR HUGGINS asked if a vote for a particular candidate would qualify as proof of an exchange. CHAIR FRENCH said no. "You'd have to show the blood oath, the handshake, the hall of lawyers outside waiting with checkbooks." That's the proof to the agreement to change your mind in exchange for the money." 1:56:36 PM SENATOR WIELECHOWSKI brought up the issue of questionnaires that candidate respond to during election cycles. The answers are evaluated and could result in a campaign contribution. He asked for discussion on the thinking because even though he realizes that there is a mens rea that has be met, he wants to be sure that type of situation would be covered. CHAIR FRENCH said it would be problematic if the questionnaire came with a check that was good only if a certain series of boxes is selected. SENATOR McGUIRE said she is bothered by questionnaires that require a date and a signature agreeing to certain points. Sometimes the questionnaires come at forums and it's very clear that the members won't support candidates that don't agree to certain positions. CHAIR FRENCH said that is a good example of the normal political process for achieving particular goals and perhaps the Department of Law could help the committee on the issue of whether there has been quid pro quo - an exchange or a deal made to change your mind in exchange for that contribution. SENATOR McGUIRE elaborated that in some forums candidates may only have the opportunity to hold up a card indicating agreement or disagreement with a particular question or issue. There is no opportunity to explain the reason for an answer or the reasoning behind a change in position. At the end there is an evaluation on some level and the candidate may or may not get a check. SENATOR FRENCH granted that that is an example of money and power being persuasive, but what is missing is the explicit agreement that the candidate is changing his or her mind in exchange for a contribution. 2:01:00 PM ANNE CARPENETI, Assistant Attorney General, Criminal Division, Department of Law, drew attention to the fact that the bill changes the definition of benefit. Benefit is used in the bribery statute, which is a specific intent crime thereby providing yet another layer of having to prove specific intent. She clarified that specific intent means that someone does an act with a specific intent of getting a result out of the act. For example, intent to kill means that someone does an act that intends to cause the death of somebody. CHAIR FRENCH added that the most difficult type of crime to prove is the type where there is specific intent, mental element. MS. CARPENETI agreed adding that that is why there aren't many in case law. SENATOR THERRIAULT noted that Title 11 deals with criminal law. CHAIR FRENCH said that's a good point; it is not an Ethics Act issue. SENATOR HUGGINS asked about enforceability unless there is a recording. MS. CARPENETI recalled just two cases. One case was a bribery prosecution of a former legislator, which did involve a wire and she wasn't sure about the other. 2:03:26 PM SENATOR WIELECHOWSKI asked for an opinion on the following situations: 1) someone answers a questionnaire and then receives a check from the entity that issued the questionnaire, and 2)someone changes his/her vote and then receives a campaign contribution. He asked if she foresees those situations as bribery under the current proposal. MS. CARPENETI replied those situations are different. They do not involve the quid pro quo; there is no bargain or meeting of the minds to exchange a position for money. SENATOR WIELECHOWSKI, noting that the proposed amendment says "to alter an elected official's ... vote", asked if she agrees that the current language does not cover situations where a candidate doesn't have a particular position but might be influenced one way or another. MS. CARPENETI said she does agree, but she would want to give it serious thought before suggesting different language. SENATOR WIELECHOWSKI asked if she interprets the provision as applicable to both the briber and the bribee. MS. CARPENETI said yes. SENATOR HUGGINS removed his objection to Amendment 1. CHAIR FRENCH, finding no further objection to Amendment 1, announced it is adopted. At ease 2:07:07 PM CHAIR FRENCH motioned to adopt Amendment 2, labeled 25- GS1059\E.7, and Senator Huggins objected for discussion purposes. A M E N D M E N T 2 OFFERED IN THE SENATE BY SENATOR FRENCH TO: CSSB 64(JUD), Draft Version "E" Page 1, line 3, following "Commission;": Insert "relating to the use of state government  assets and resources when there is no charge to the  state for their use, and to the use of state aircraft  for partisan political purposes;" Page 4, following line 30: Insert new bill sections to read:  "* Sec. 6. AS 39.52.120(b) is amended to read: (b) A public officer may not (1) seek other employment or contracts through the use or attempted use of official position; (2) accept, receive, or solicit compensation for the performance of official duties or responsibilities from a person other than the state; (3) use state time, property, equipment, or other facilities to benefit personal or financial interests; (4) take or withhold official action in order to affect a matter in which the public officer has a personal or financial interest; (5) attempt to benefit a personal or financial interest through coercion of a subordinate or require another public officer to perform services for the private benefit of the public officer at any time; or (6) use or authorize the use of state funds, facilities, equipment, services, or another government asset or resource for partisan political purposes; this paragraph does not prohibit use of the governor's residence for meetings to discuss political strategy and does not prohibit use of state aircraft  or the communications equipment in the governor's residence so long as there is no [SPECIAL] charge to the state for the use; in this paragraph, "for partisan political purposes" (A) means having the intent to differentially benefit or harm a (i) candidate or potential candidate for elective office; or (ii) political party or group; (B) but does not include having the intent to benefit the public interest at large through the normal performance of official duties.  * Sec. 7. AS 39.52.120 is amended by adding a new subsection to read: (f) Use of state aircraft for partisan political purposes is permitted under (b) of this section only when the use is collateral or incidental to the normal performance of official duties and does not exceed 10 percent of the total of the use of the aircraft for official purposes and partisan political purposes, combined, on a single trip. A public officer who authorizes or makes any partisan political use of a state aircraft under (b) of this section shall disclose the authorization and use under AS 39.52.210, 39.52.220, or 39.52.230 for each trip, and the person who uses the aircraft shall reimburse the state for the actual cost of the use." Renumber the following bill sections accordingly. Page 5, line 13: Delete "secs. 7 and 8" Insert "secs. 9 and 10" SENATOR FRENCH highlighted that Amendment 2 follows up on a previous discussion about the use of state aircraft. After that discussion he reviewed the APOC decision as well as the opinion Mr. Jones issued regarding the way jet use is allocated. Recognizing that the governor is a complex person with a fulltime job that doesn't allow leave slips, he continues to return to the fact that the jet is a state asset and the use of state facilities to further partisan political purposes is simply not right. CHAIR FRENCH explained that the amendment does essentially two things. It adds "state aircraft" into the same category as the governor's residence to make it clear that the governor is not prohibited from sitting in the aircraft and talking about politics. Similar to the residence, it is a place that the governor will spend a certain amount of time so it shouldn't be an ethics violation to have a political discussion. The second thing the amendment does is allow for the fact that if the governor takes the jet to a bill-signing and it is during campaign season, there may be some incidental use of that travel to accomplish some partisan political end. Nevertheless, in his view that time should be very incidental or the governor should not be using a valuable state asset to achieve that partisan political end. 2:11:54 PM SENATOR THERRIAULT asked for an explanation of the 10 percent allocation. CHAIR FRENCH said his interpretation is that it is the percentage of time spent on partisan political activity compared to the total time spent on the trip. Each trip would be a separate entity. SENATOR THERRIAULT asked how he made the 10 percent determination. CHAIR FRENCH said it was a policy call. Right now up to 48 percent may be okay, which strikes him as being far too much. SENATOR HUGGINS asked if this would apply to the governor's chauffeured vehicles. CHAIR FRENCH responded the amendment targets state aircraft - specifically the jet. 2:13:49 PM DAVID JONES, Assistant Attorney General, Criminal Division, Department of Law, said the current language would not cover chauffeured vehicles. Including chauffeured vehicles is problematic because security concerns frequently dictate that the governor use that type of transportation. SENATOR HUGGINS questioned what "government asset or resources" would be other than aircraft. MR. JONES replied that would be a variety of things including the governor's residence or office. SENATOR HUGGINS said that's already been discussed; the residence can be used. MR. JONES said use the residence for partisan political purposes is very limited. For example the governor could not hold a fundraiser at the residence. CHAIR FRENCH clarified that the preemption is for partisan political purposes; a rally for breast cancer, Boys and Girls Club or something similar is acceptable. SENATOR McGUIRE asked if the state would pay for airline tickets for a security detail to travel with the governor when she/he is campaigning and flying commercial. 2:18:17 PM MR. JONES understands that the governor is usually accompanied by security, but he doesn't know the details. He further explained that the current APOC rules would require an allocation of cost if the state pays for a plane ticket and one of the purposes of the trip is to participate in partisan political activity. SENATOR THERRIAULT questioned why that system wouldn't work for the state aircraft. MR. JONES explained that under this provision there would be separate treatment for state aircraft. SENATOR THERRIAULT questioned why the current system couldn't accommodate both. MR. JONES replied it is a policy call. SENATOR THERRIAULT asked for clarification that the current system does not cover the jet. MR. JONES said when he wrote the opinion that was discussed at the last hearing he believed that the current system would deal with the use of state aircraft. He acknowledged that many people, including some on the committee, disagree with his opinion. CHAIR FRENCH said in all fairness to Mr. Jones it is conceivable to continue under the current system. However, because the jet is an extremely valuable state asset, tight rules should be constructed to make it clear to the public that it will not be used as a private jet. 2:20:32 PM MR. JONES said he had opportunity to review the amendment and he would suggest that the reference to AS 39.52.230 on page 2, line 17 is redundant. Also, on line 18 the reference to reimbursement of the actual cost of the use isn't clear. It could mean the entire cost of the trip or just the proportionate share that is attributed to the partisan political activity. He suggested that if partisan political activity is restricted to just 10 percent, then it might be overwhelming to require a public officer to pay the entire cost of the use of the state aircraft. CHAIR FRENCH said his intent is to require payment for the portion attributable to partisan political purposes. MR. JONES suggested inserting "a proportionate share of."    CHAIR FRENCH motioned to amend Amendment 2. On line 18 insert "the proportional share of" after the word "for" and before the word "the". 2:23:29 PM SENATOR WIELECHOWSKI objected to ask if the language prohibits the governor from using state aircraft for all partisan political purposes. CHAIR FRENCH said no, but anything exceeding 10 percent would be an ethics violation. SENATOR WIELECHOWSKI asked for clarification that there would not be an instance in which the governor reimbursed more than 10 percent because that would be an ethics violation. MR. JONES said that's correct. He understands that the amendment would say that if the attributable time is more than 10 percent, then the governor could not use the state aircraft. Also, the governor would be required to reimburse the state for the share of the travel that is attributable to the partisan political activities so that use of a state aircraft would not be a benefit. 2:24:50 PM SENATOR WIELECHOWSKI withdrew his objection. CHAIR FRENCH announced that without objection, the amendment to Amendment 2 is adopted and the committee would continue to consider the amendment.   SENATOR THERRIAULT remarked that under the 10 percent rule a two hour flight to Anchorage would leave just 12 minutes for partisan political activity and that is too tight. CHAIR FRENCH suggested the committee clarify how much time is involved and what time is relevant for one trip. In his view it would be easier to consider time on the ground, roundtrip travel time and time spent performing official duties as one trip. Thus for a ten hour trip from Juneau to Juneau, the allowable time for partisan political time would be one hour. That strikes me as being fair, he stated, "but if it's a two hour fundraiser, maybe you should be flying coach." SENATOR THERRIAULT agreed that it is more palatable if the relevant time is from takeoff to touchdown, but other than the discussion here in the committee he isn't sure it would be interpreted that way. SENATOR WIELECHOWSKI commented that weather greatly affects total travel time so he questioned whether travel is the best indicator. He asked Mr. Jones how that is addressed currently. MR. JONES said Chair French, Ms. Smith and the drafter did a remarkable job on a very difficult concept. He didn't believe the attorney general's office would have any trouble interpreting a single trip as being takeoff to touchdown, but he couldn't speak for the personnel board or the court system. SENATOR McGUIRE pointed out that the intent is to change behavior. For awhile this will be inconvenient, but ultimately incumbents will be required to better separate the office of the governor and partisan political activities. 2:30:09 PM CHAIR FRENCH motioned to adopt a second amendment to Amendment 2. On page 2, line 17, delete "or 39.52.230". SENATOR WIELECHOWSKI suggested different punctuation.   CHAIR FRENCH rephrased the second amendment to Amendment 2. On page 2, line 16, after "210" delete the comma and insert "or" and after "220" delete ", or 39.52.230". There was no objection and the second amendment to Amendment 2 was adopted. SENATOR HUGGINS removed his objection to Amendment 2. CHAIR FRENCH announced that without objection Amendment 2 is adopted. He stated his intention to prepare a clean committee substitute and bring the bill back before the committee at the next meeting for final action. 2:32:40 PM SENATOR HUGGINS commented and he hopes that what is being done here doesn't haunt future legislatures. "I'm listening to this and reluctantly accepting it," he stated. CHAIR FRENCH held SB 64 in committee.