SB 15-OPEN MEETINGS ACT; PENALTY  2:38:04 PM CHAIR REINBOLD reconvened the meeting and announced consideration of SB 15, SENATE BILL NO. 15, "An Act relating to the Open Meetings Act; and establishing a civil penalty for violations of the open meeting requirements by members of governmental bodies." [CSSB 15(CRA) was before the committee. This is the third hearing on this bill, which was previously held on 3/17/21 and 3/22/21.] 2:38:39 PM MELODIE WILTERDINK, Staff, Senator Mia Costello, Juneau, Alaska, responded to questions from the last hearing. She referred to a map from the presentation on March 22, 2021. She explained that in Colorado and Idaho, as opposed to Alaska, actions taken in violation of open meeting requirements are automatically voided. In Alaska, such actions are "voidable to be determined by the court," after the determination that those actions were, in fact, in violation of the law. This means that actions taken in violation of the Open Meetings Act in Alaska, as proven in court, may still stand despite the illegality of the meeting in which they were taken. MS. WILTERDINK said another question was whether a municipal officer acting in a judicial or quasi-judicial capacity would be subject to the Open Meetings Act. AS 44.62.310(d) specifies that the Open Meetings Act does not apply to "a governmental body performing a judicial or quasi-judicial function when holding a meeting solely to make a decision in an adjudicatory proceeding." This means that appointed municipal officers acting as judicial officials would not be subject to the Open Meetings Act or SB 15. 2:40:15 PM SENATOR KIEHL moved to adopt Amendment 1, work order 32- LS0176\G.3. 32-LS0176\G.3 Bannister 3/25/21 AMENDMENT 1 OFFERED IN THE SENATE TO: CSSB 15(CRA) Page 1, line 3, following "Commission": Insert ", the Select Committee on Legislative Ethics," Page 1, following line 14: Insert a new bill section to read:  "* Sec. 2. AS 24.60.037 is repealed and reenacted to read: Sec. 24.60.037. Open meetings violations. If the committee receives a complaint against a person for a violation described in AS 44.62.310(i), the committee shall give the respondent due notice and an opportunity to be heard. If, at the conclusion of the hearing, the committee determines that the respondent engaged in the alleged violation, the committee shall assess a civil penalty under AS 44.62.310(i). The determination of the committee under this section may be appealed to the superior court. The committee shall, by regulation, establish procedures to implement this section, including procedures for investigating and holding hearings on complaints." Renumber the following bill sections accordingly. Page 2, following line 10: Insert a new bill section to read:  "* Sec. 4. AS 44.62.310(h)(3) is amended to read: (3) "public entity" means an entity of the state or of a political subdivision of the state including an agency, a board or commission, the University of Alaska, a public authority or corporation, a body of the  legislative branch of state government, a municipality, a school district, and other governmental units of the state or a political subdivision of the state; "public entity" [IT] does not include the court system [OR THE LEGISLATIVE BRANCH OF STATE GOVERNMENT]." Renumber the following bill sections accordingly. Page 2, following line 11: Insert a new paragraph to read: "(4) "body of the legislative branch of state government" means (A) the senate; (B) the house of representatives; (C) the senate and the house of representatives meeting in joint session; (D) a committee of the legislature, other than the Committee on Committees, but including a standing committee, special committee, joint committee, conference or free conference committee, committee of the whole, and permanent interim committee; (E) a legislative commission, task force, or other group established by statute or resolution; or (F) a caucus of members of one or more of the bodies set out in (A) - (E) of this paragraph;" Renumber the following paragraphs accordingly. Page 2, lines 13 - 14: Delete "has the meaning given in AS 39.50.200 but does not include a judicial officer" Insert "means (A) a person included in the definition of "public official" in AS 39.50.200, except a judicial officer; and (B) a member of the legislature;" Page 2, line 15: Delete "a new subsection" Insert "new subsections" Page 2, line 17, following "body": Insert ", except a community council established by a municipality," Page 2, line 20, following "a": Insert "(1)" Page 2, line 22, following "AS 44.23.020(l)": Insert "; (2) member of a body of the legislative branch of state government is alleged to have violated this subsection, the Select Committee on Legislative Ethics established under AS 24.60.130 shall enforce this subsection under AS 24.60.037. (j) In the case of an alleged violation under (i) of this section by a member of a body of the legislative branch of state government, if there is a conflict between (i) of this section and the Uniform Rules of the legislature, the Uniform Rules govern" Page 2, lines 22 - 23: Delete "In this subsection, "governmental body" does not include a community council established by a municipality." Page 2, line 26, following "Act,": Insert "AS 24.60.037, as repealed and reenacted by sec. 2 of this Act," Page 2, line 27: Delete "sec. 2 of this Act, AS 44.62.310(h)(4) and (5), added by sec. 3 of this Act," Insert "sec. 3 of this Act, AS 44.62.310(h)(3), as amended by sec. 4 of this Act, AS 44.62.310(h)(4) - (6), added by sec. 5" Page 2, line 28: Delete "AS 44.62.310(i), added by sec. 4" Insert "AS 44.62.310(i) and (j), added by sec. 6" CHAIR REINBOLD objected for discussion purposes. SENATOR KIEHL explained that Amendment 1 would include the legislature in governmental bodies that must adhere to the Open Meetings Act. He characterized it as a fundamental issue of fairness for the legislature to follow the same rules to provide transparency. The enforcement would fall under the Select Committee on Legislative Ethics. If this provision passed, the legislature would need to amend the Uniform Rules via a resolution. 2:42:15 PM CHAIR REINBOLD asked what violations have been occurring that Amendment 1 would address. SENATOR KIEHL answered that it was not a question that someone was doing something wrong. The legislature is not subject to the same rules but would be under Amendment 1. He related his understanding that Amendment 1 would include caucuses as public meetings so those meetings would need to be public noticed. 2:42:54 PM SENATOR HUGHES offered her belief that Amendment 1 represents a major policy change since it will shift the discussion from the Open Meetings Act to the Legislative Ethics Act. She suggested that it would be better to address legislative ethics in a separate bill. She pointed out that essentially any violation of the Ethics Act by a legislator would result in a penalty. She asked if her interpretation is correct. SENATOR KIEHL answered no. He offered his view that it would only result in a penalty if a legislator violated the Open Meetings Act. SENATOR HUGHES related her understanding that legislators were under the Ethics Act. She asked if Amendment would put legislators under both Acts. SENATOR KIEHL answered yes. He recalled the Ethics Act relates more to not accepting gifts and other conflicts of interest. He offered his belief that this would subject legislators to the same set of rules as the executive branch and municipal governments need to follow. 2:44:56 PM SENATOR HUGHES asked why the legislature was not included in the Open Meetings Act in the enabling legislation. Instead, it was left to the Legislative Ethics Act and the Uniform Rules. SENATOR KIEHL replied that he did not prepare a complete history. However, the question before the committee today is whether the legislature must abide by the same rules that are appropriately imposed on other elements of government. The public has a right to view the deliberations of policy matters. SENATOR HUGHES stated that the legislature must notice public meetings. Some provisions in the Ethics Act meet the public's need for transparency. Without a full presentation on the current requirements for the legislature, it would be difficult to support Amendment 1. She voiced that she does not have anything to hide but the changes provided by Amendment 1 would be significant. 2:46:27 PM SENATOR MYERS said he understood the rationale of Amendment 1. He asked if the legislature would repeal current statutes that apply to legislators if the legislature was subject to the Open Meetings Act. SENATOR KIEHL answered no. Amendment 1 does not repeal the Uniform Rules, he said. He acknowledged that the Uniform Rules would need some adjustments if Amendment 1 were to pass. Until then, the Uniform Rules would govern, he said. 2:47:43 PM CHAIR REINBOLD asked if his intent is to place the executive branch and municipal officials and the legislature under the Uniform Rules, the Legislative Ethics Act and the Open Meetings Act. SENATOR KIEHL answered that he did not believe the Uniform Rules would provide the executive branch or municipal government with much guidance. He offered his belief that the executive branch ethics is more restrictive than the Legislative Ethics Act. Amendment 1 would conform the legislature to the open meetings principles but does not apply to the Public Records Act, which did not seem germane. CHAIR REINBOLD offered her view that everyone should operate under the same rules, including the Uniform Rules, the Legislative Ethics Act and the Open Meetings Act. She asked for the sponsor's intent. 2:49:16 PM MS. WILTERDINK said it was not the sponsor's intent to exclude the legislature from the penalty provision in SB 15. She related her understanding that to update the Uniform Rules would require a resolution. She deferred to Legislative Legal Services to respond. 2:50:19 PM TERRY BANNISTER, Attorney, Legislative Legal Services, Legislative Affairs Agency, Juneau, Alaska, said it is true the legislature would need to pass a resolution. She said the Uniform Rules would govern even if the bill was adopted. 2:51:18 PM SENATOR SHOWER agreed that Amendment 1 would be a significant change. He asked how the mechanics would work. SENATOR KIEHL agreed that Amendment would institute significant changes. For example, only three members could discuss an issue without being in an open setting. He said members could meet for coffee or dinner but members could not discuss business. He stated that members can go into executive session based on a list of acceptable reasons, including litigation and contracts. He said the sponsor did not object to Amendment 1. 2:53:38 PM SENATOR HUGHES stated she did not hear Ms. Wilterdink mention that the sponsor supported Amendment 1. She also wondered whether the committee had enough information about the overall implications of Amendment 1 or if it passes the single-subject rule. MS. WILTERDINK said the sponsor would like clarity on certain parts of Amendment 1 related to caucuses and whether Uniform Rules would be applied first or if the Open Meetings Act would apply. 2:56:22 PM CHAIR REINBOLD suggested that Senator Kiehl work with the sponsor. CHAIR REINBOLD tabled Amendment 1. 2:56:50 PM CHAIR REINBOLD opened public testimony on SB 15. 2:57:24 PM MIKE COREY, representing self, Anchorage, Alaska, stated that he was glad the committee was considering SB 15. He disclosed that he is counsel for the Alaskans for Open Meetings, but he is speaking on behalf of himself today. He suggested the committee consider changing "voidable" to "void." He explained that if the Open Meetings Act is violated, it should be "void" and the legislature should not rely on the courts to consider the rationale for open meetings. Many of the criteria in [AS 44.62].310 incorporates [AS 44.62].312, which relate to policy statements. Five of the factors essentially say that if the activities during the violation are significant or challenging to walk back, those are the very activities the public should be allowed to attend. The policy considerations in [AS 44.62].312 are the very reasons for enacting the Open Meetings Act. It doesn't make sense to have each judge revisit the topic. MR. COREY offered his view that if two or more people are in session, the public should be allowed to attend in person. He offered his view that E-attendance was not meant to provide a means to exclude the public but rather was intended to be for the publics' convenience. He acknowledged that during COVID-19 if meetings are held entirely by Zoom that E-attendance might be sufficient. 2:59:52 PM LOUIS IMBRIANI, representing self, Anchorage, Alaska, spoke in support of adding a penalty to the Open Meetings Act in SB 15. It will give citizens another way to hold elected officials accountable for their actions. Currently, holding elected officials accountable can be a long, arduous and expensive process. 3:00:42 PM FRANK MCQUEARY, President, Alaskans for Open Meetings, Anchorage, Alaska, spoke in support of tightening up the existing statutes for the Open Meetings Act. He expressed concern that there is not a penalty for violating the Open Meetings Act. He referred to [AS 44.62.310] (f). He stated that moments ago Mr. Corey alluded to the "voidable" language in the Open Meetings Act that automatically defers any dispute to the court. He offered his view that this language provides a framework for the court to find excuses for the Open Meetings Act violations. He expressed concern that without erecting barriers for bad behavior, more bad behavior will occur. SB 9 closely mirrors a bill then-Representative Ted Stevens introduced in 1966. He said this bill is simple, clear, and shifts a little power to the public. Since litigation is costly for private individuals, but officials can use publicly paid attorneys, these positive changes to the Open Meetings Act could help the public. 3:03:48 PM One public testifier, Theresa Obermeyer, Anchorage, Alaska was not able to testify due to audio difficulties. 3:04:39 PM CHAIR REINBOLD closed public testimony on SB 15. [SB 15 was held in committee.]