SB 89-LEGISLATIVE ETHICS ACT  1:31:54 PM CHAIR HOLLIS FRENCH announced the consideration of SB 89. [CSSB 89(STA), 27-LS0452\T was before the committee.] SENATOR JOHN COGHILL, Sponsor of SB 89, stated that this ethics bill is a work in progress that wound up in his hands. His chief of staff, Ms. Moss, would provide a sectional analysis after which he would offer an amendment. He noted that the current version T removed some of the more contentious issues. 1:33:22 PM RYNNIEVA MOSS, Chief of Staff to Senator Coghill, sponsor of SB 89, said the only changes in Section 1 appear on page 2. For consistency with AS 24.60.080, the phrase "lawful gratuity" was changed to "gift" and reference to the compassionate gift statute, AS 24.60.075, was inserted. Section 2 attempts to draw a bright line for legislators and staff in dealing with constituents. It says that unless the legislator is an attorney, the legislative office will stop giving assistance to a constituent once the issue goes before an administrative hearing officer. Inadvertent ex parte contact is allowed. CHAIR FRENCH asked, if he were to write a letter on behalf of a constituent asking for a fair hearing on a permanent fund dividend denial, if the letter would go to an administrative hearing officer on the first level or to the department. MS. MOSS replied the first level is called an informal denial and at that stage he could communicate with the department. Once there's a formal denial and a request for an administrative hearing, the legislator's office would need to step away. CHAIR FRENCH asked for an example of the point at which it is no longer acceptable for a legislator to act in regard to child placement actions under the Office of Children's Services (OCS). MS. MOSS replied OCS has worked with legislative offices all during the process even though it's actually a court case. They also have a legislative liaison that legislative offices can contact directly. An example where contact would be limited beyond a certain point would be workers compensation. Once the issue reaches the point of having administrative hearings, the legislative office would have to back away. With regard to child support, once the matter reaches the point of requesting an administrative hearing, the legislative office can no longer be involved. 1:36:43 PM SENATOR COGHILL explained that the ethics laws were written before there were administrative law judges so this was an attempt to clarify the point at which a legislative office must step away from a constituent issue they'd been working on. He noted that at one point the Ethics Committee suggested a 10-hour limit, but he believes this is a better way. It's okay for a legislative office to help a constituent up to the point of the administrative decision, but it's not okay to put pressure on the decision-maker. CHAIR FRENCH asked if legislators could safely send complaints to a legislative liaison office about the way their constituents were being treated. MS. MOSS replied she didn't know the answer, but she didn't believe there was a protection under the law. She added that the biggest problem is when a constituent doesn't inform the legislator or staff where they are in the process. 1:38:56 PM CHAIR FRENCH asked if the ten-hour provision was an ethics opinion or in statute at one time. SENATOR COGHILL replied it was an ethics opinion. CHAIR FRENCH asked if this would supersede that opinion. SENATOR COGHILL answered yes. SENATOR WIELECHOWSKI referred to the workers' compensation example and said he reads the bill to say that a legislator could call a department director to ask about the status of a particular case. MS. MOSS agreed. SENATOR WIELECHOWSKI asked for confirmation that the legislator couldn't contact the chief of adjudications. MS. MOSS replied they could contact the person that is handling the workers' compensation case, but not the hearing officer, the attorney for the insurance company or the attorney for the constituent. SENATOR COGHILL added that the idea was to keep legislators from becoming free legal advisors unless the legislator is a practicing attorney. 1:40:26 PM MS. MOSS clarified that a non-attorney can handle a workers' compensation case, but once the matter gets to an administrative hearing it's between the constituent, their attorney, and the division under challenge. SENATOR WIELECHOWSKI asked where it says the legislator couldn't contact the attorney who represents the injured worker. MS. MOSS replied it doesn't say that specifically, but once the dispute goes to a hearing officer the legislative office isn't supposed to contact those parties. Contacting a constituent's attorney would be considered ex parte contact. SENATOR WIELECHOWSKI asked where it says that in the bill. MS. MOSS replied "ex parte" is contacting a party in a case without going through the court. SENATOR WIELECHOWSKI said his understanding is different. CHAIR FRENCH said he believes that "ex parte" is between a party and the judge without the other party being present. SENATOR WIELECHOWSKI agreed. SENATOR PASKVAN agreed, and said the purpose of that definition of "ex parte" is to encourage contact between the parties directly, but while they're trying to work things out neither party can contact the judge without the other being present. MS. MOSS added that the bill also requires legislators to disclose any contact that is considered inappropriate. 1:42:51 PM CHAIR FRENCH summarized that in this case "ex parte" would be between a legislator and a hearing officer, not a legislator and an attorney representing the constituent. MS. MOSS responded that when she always asks constituents that contact Senator Coghill's office for help if they engaged an attorney. SENATOR WIELECHOWSKI said he didn't believe that under current law or if this were to pass that it would be illegal or unethical for a legislator to contact a constituent's attorney to express concern about the timeliness of a hearing. MS. MOSS said she appreciates having that on the record. SENATOR COGHILL recalled that the administrative law judge who spoke to his office about two years ago had the same opinion. CHAIR FRENCH noted that Joyce Anderson was online to answer questions about ethics laws. 1:45:36 PM MS. MOSS said Section 3 releases the Ethics Committee from having to compile disclosure form statements, but it would still have to maintain a record of the forms that are available to the public. Section 4 adds "or public member of the committee" to AS 24.60.060(a), which is the statute that prohibits disclosure of confidential information. Sections 5 and 7 have been reworded to make it clear that legislators, their employees, or a public member of the committee may not accept from a lobbyist a ticket to a charitable event that is valued at more than $249.99. SENATOR COGHILL added that it also allows accepting a charitable gift beyond that amount from somebody other than a lobbyist, but it must be reported and the event must be a sanctioned event. MS. MOSS said Section 7 changes the reporting requirements from 30 days to 60 days for charitable gifts and gifts of travel for purposes of gaining legislative information. 1:47:22 PM SENATOR PASKVAN asked if this changes what a lobbyist may offer to a legislator. SENATOR COGHILL answered no. It changes charitable events that are specifically mentioned in statute. The rewording attempts to allow a charitable gift donation from people who are not lobbyists. 1:48:44 PM CHAIR FRENCH observed that it was a little confusing to talk about tickets to a charitable event in conjunction with gifts, and asked if this was separate from the general gift prohibition. MS. MOSS responded it addresses circumstances like receiving a ticket to a sanctioned charitable event and winning the door prize. SENATOR COGHILL added that a question came up about winning a cruise at the "Thanksgiving in March" event. In another instance a legislator was given a gift from a non-lobbyist to sit at a head table, which was valued at more than $400. An ethics complaint was lodged but there was not an ethical problem. He noted that it might be a problem if it wasn't a sanctioned event. MS. MOSS explained that Section 8 allows certain persons to request a waiver from disclosing clients or making any disclosures that would violate state or federal law or the state or federal constitution. The State Affairs Committee added the language "or a rule adopted formally by a trade or profession, that state or federal law requires the person to follow." Thus, certain occupations don't have to disclose their sources of income from clients. CHAIR FRENCH asked if it is an ethics disclosure, an Alaska Public Offices Commission (APOC) disclosure, or both. MS. MOSS replied it's an ethics disclosure. SENATOR COGHILL added that under HIPPA there are some restrictions on confidentiality, and there was some concern about reporting if a legislative office was working on a healthcare issue for a constituent. MS. MOSS said Sections 9 and 13 were added in the State Affairs Committee, and state that if someone is a volunteer or educational trainee for 30 days they would be expected to take an ethics class. Sections 10 and 11 make reference to the new statute in Section 12. Section 12 is a new section of law that deals with alternate members. It adds an alternate for a public member and allows them to participate in the full proceeding once they've been selected. SENATOR COGHILL said it became apparent that it would be easier to make a quorum for the public members if there was an alternate. A decision was made that once the alternate was engaged in a particular ethical question they should remain until the conclusion. That is true for the public and legislative alternates. 1:53:42 PM MS. MOSS said Section 14 changes the definition of "legislative employee." It clarifies that hourly employees are not included and are not required to take ethics training. 1:54:28 PM SENATOR COGHILL observed that the bill was a benign housekeeping matter without his amendment, which addresses how to reasonably and properly allow legislators to participate in partisan political activities while on state travel. Generally speaking, most of the meetings that legislators hold outside of Juneau are held in Anchorage or Fairbanks. Legislators from those urban areas may attend partisan events after conducting state business, but those from out of town cannot. He said he was trying to find a reasonable solution without allowing legislators to use state money to campaign. That's the one-way valve. "We want them to do one thing nobly, and we don't want them to use it improperly." 1:56:37 PM SENATOR COGHILL moved Amendment 1, labeled 27-LS0452\T.1. AMENDMENT 1 OFFERED IN THE SENATE BY SENATOR COGHILL TO: CSSB 89(STA) Page 1, line 7, following "instances;": Insert "allowing legislators and legislative  employees, in certain circumstances, to participate in  partisan political activity while on state travel;" Page 5, following line 26: Insert new bill sections to read: "* Sec. 3. AS 24.60.030 is amended by adding a new subsection to read: (j) Notwithstanding the limitations under (a)(2), (a)(4), and (c) of this section and subject to other state or federal laws, a legislator or legislative employee who is on state travel may participate in partisan political activity, including campaign activity, if (1) the participation is incidental to the purpose of the travel; (2) the legislator or the legislative employee does not use or authorize the use of state resources to pay for the activity; and (3) the legislator or legislative employee does not participate in the activity (A) during a normal workday between 8:00 a.m. and 5:00 p.m., excluding meal breaks; (B) on a state or municipal election day; (C) during the 30 days immediately preceding an election in which the participating legislator or the legislator for whom the participating employee works is a candidate for elective office; or (D) by fund raising for a political party or campaign. * Sec. 4. AS 24.60.031 is amended by adding a new subsection to read: (d) Notwithstanding the limitations under (a) and (b) of this section and subject to other state or federal laws, a legislator or legislative employee who is on state travel may participate in partisan political activity, including campaign activity, if (1) the participation is incidental to the purpose of the travel; (2) the legislator or the legislative employee does not use or authorize the use of state resources to pay for the activity; and (3) the legislator or legislative employee does not participate in the activity (A) during a normal workday between 8:00 a.m. and 5:00 p.m., excluding meal breaks; (B) on a state or municipal election day; (C) during the 30 days immediately preceding an election in which the participating legislator or the legislator for whom the participating employee works is a candidate for elective office; or (D) by fund raising for a political party or campaign." Renumber the following bill sections accordingly. Page 13, following line 24: Insert a new bill section to read: "* Sec. 17. AS 24.60.990(a) is amended by adding a new paragraph to read: (17) "state travel" means travel with transportation or overnight lodging that is provided or paid for with state resources." Renumber the following bill section accordingly. CHAIR FRENCH objected and opened discussion on the amendment. SENATOR COGHILL said he would understand if the Chair decided to set the bill aside for more in depth consideration next session. He explained that the amendment addresses AS 24.60.030, which talks about ethical management, and AS 24.60.031, which talks about the management of fundraising. He read the amendment into the record and the following legal definition of "incidental:" "Subordinate to something of greater importance; having a minor role." He was trying to say that there are reasons to prohibit the activity, but there should be an accommodation for participation in partisan political activity that is clearly incidental. Whereas fund raising for any political party or campaign while on the state dime is absolutely prohibited. This sets the bar and clarifies that the activity has to be very small in comparison to the activity for which the legislator is using state travel. SENATOR COGHILL said if he goes to Anchorage on state travel and is called by a radio program and gives his opinion, he could be charged with participating in partisan activity when he's really just articulating his beliefs. The question needs to be answered and the forgoing are the criteria he set. 2:03:25 PM CHAIR FRENCH said he appreciates the thought that went into the amendment and shares some of the concerns. Leveling a complaint that a legislator has violated the ethics rules is a powerful complaint. It will be discussed further over the summer and next year. Some of the questions that arise relate to the size differences in the legislative districts and the sort of things a legislator should be able to do when he/she is paid to travel inside his/her own district. Some things could conceivably be an ethics violation under the current rules and he's not sure they should be. Is it a violation if you're traveling to Anchorage on state business and you update your Facebook page relating to your campaign when you're in your hotel room at night? Could you call into a Fairbanks radio show from Anchorage promoting your campaign while on state travel? He reiterated that he'd spend time on the question between now and next year. 2:05:54 PM SENATOR WIELECHOWSKI stated agreement. If a legislator is traveling to Anchorage and gets a call from a radio station asking about partisan activities, does it matter if that legislator is in Anchorage or Fairbanks? The problem has been how to define where that line is. The State Affairs Committee couldn't figure it out, but with further dialog there may be a solution. SENATOR COGHILL said he assumes that some legislators and some people that watch legislators will be bad actors, but others are genuinely concerned about ethical behavior. It's a balance and he's trying to figure out the clearest rule possible. Trying to define motives is not the answer, but defining action items helps establish bright lines so that legislators know what is expected of them as partisan people. It also helps those who genuinely want to keep legislators ethically accountable for the use of state resources. He said his district includes the Richardson Highway, the Glenn Highway, the Denali Highway, and the coast from Valdez to Whittier so he can be anywhere in those communities and be totally forbidden from going to a Republican event even though he had traveled 800 miles to visit three other communities in the district. It's painful to be unable to participate. Under the current statutes, there is an exact prohibition on partisan activity anytime a legislator is on the state dime. This leaves legislators vulnerable to people who have bad intentions. The Ethics Committee has discussed this extensively over the years and legislators have repeatedly asked for relief. He asked the committee to carefully consider the amendment; it's his best effort to define what is and is not ethical. SENATOR COGHILL asked the Chair how he wanted to proceed with the amendment and the bill itself. 2:11:19 PM SENATOR PASKVAN commented that he looks forward to further healthy debate on the matter and believes that this committee is best suited for this substantive discussion. It's a complex subject that requires careful consideration from both sides. Legislators should always act ethically, but he doesn't want to give unfair advantage to someone who can use private wealth to scam the system, knowing that the person they're attacking can't fight back because they were traveling at state expense. SENATOR COGHILL said he's passionate that this is not about fairness; it's about what is ethical. Right now you can't be a partisan politician while on the state dime. That's not reasonable and doesn't address the ethical question. CHAIR FRENCH stated that he'd leave matters as they are; both the bill and the amendment are in front of the committee and he was maintaining his objection. 2:14:10 PM SENATOR COGHILL said his office was prepared to work with the committee and was open to suggestions. CHAIR FRENCH announced he would hold SB 89 in committee.