SB 15-OPEN MEETINGS ACT; PENALTY  2:51:16 PM CHAIR REINBOLD reconvened the meeting and announced the 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." [CS FOR SENATE BILL NO. 15(CRA) was before the committee. Public testimony was opened and closed on 3/31/21.] 2:51:46 PM CHAIR REINBOLD stated her intention to hold the bill in committee. 2:52:20 PM MELODIE WILTERDINK, Staff, Senator Costello, Alaska State Legislature, Juneau, Alaska, stated that SB 15 intends to strengthen the Open Meetings Act by adding civil penalties for those officials who hold meetings that are not open to the public. 2:53:32 PM SENATOR HUGHES moved to adopt Amendment [2, labeled as Amendment 3, work order 32-LS0176\G.6]: 32-LS0176\G.6 Bannister 4/1/21 AMENDMENT [2] OFFERED IN THE SENATE BY SENATOR HUGHES TO: CSSB 15(CRA) Page 1, line 2, following "by": Insert "certain elected" Page 1, line 3: Delete "and the attorney general" Page 1, line 8: Delete ", unless the person is a member of the commission" Page 2, lines 1 - 14: Delete all material. Renumber the following bill sections accordingly. Page 2, lines 16 - 17: Delete "who is an elected or appointed public official and" Insert "that is made up of elected public officials" Page 2, lines 19 - 23: Delete ", except that if a member of the Alaska Public Offices Commission is alleged to have violated this subsection, the attorney general shall enforce this subsection under AS 44.23.020(l). In this subsection, "governmental body" does not include a community council established by a municipality" Insert ". In this subsection, (1) "elected public official" means a person who has been elected to a governmental body at a regular or special election held by a municipality, school district, or regional educational attendance area; (2) "knowingly" has the meaning given in AS 11.81.900(a)" Page 2, lines 26 - 27: Delete "AS 44.23.020(l), added by sec. 2 of this Act, AS 44.62.310(h)(4) and (5), added by sec. 3 of this Act," Page 2, line 28: Delete "sec. 4" Insert "sec. 2" CHAIR REINBOLD objected for discussion purposes. SENATOR HUGHES explained that Amendment [2] would clarify that SB 15 applies to elected officials but not to members of boards and commissions or non-elected task force or subcommittee members. 2:54:17 PM SENATOR MYERS related his understanding that it would not apply to the executive branch. SENATOR HUGHES said that is correct. She expressed concern about the size of the fiscal note and the number of people impacted since people may be unwilling to volunteer to serve. She stated that boards and commissions typically meet much less often than municipal government such as community councils and assemblies. Instead, the bill narrowly focuses on the elected bodies that pass ordinances for local municipalities. SENATOR KIEHL asked if a planning commission determining Alaskans' rights to develop private property would be exempt and not be subject to penalties if those decisions were made behind closed doors. Further, the bill would not apply to licensing boards that determine people's ability to acquire a professional license. SENATOR HUGHES answered yes. She said planning commissions and licensing boards typically do not have a history of complaints. SENATOR KIEHL recalled issues with planning commissions. He asked whether this would apply to the Alaska Oil and Gas Association (AOGA) or the Regulatory Commission of Alaska even though their issues pertain to major businesses. SENATOR HUGHES responded that SB 15 relates to elected officials. The intent is to limit the focus on the areas with the most complaints. 2:56:46 PM SENATOR HUGHES added that if SB 15 works well, a bill could be introduced to expand the penalty provisions to include other officials. However, that could affect thousands of individuals so the fiscal impact would be much greater. CHAIR REINBOLD said Senator Kiehl has a valid point. She expressed concern that violations could occur on boards and commissions. She offered to work with Senator Kiehl in the future to address those concerns. SENATOR SHOWER asked for the sponsor's perspective on the intent of the bill and the possibility of expanding the penalty provisions at some future date to address Senator Kiehl's concerns. MS. WILTERDINK responded that the sponsor wanted to include elected officials. The sponsor did not want to discourage people from volunteering to serve on board and commissions because they may be subject at hefty fines. She acknowledged that Senator Kiehl raised important considerations. 2:59:08 PM SENATOR SHOWER asked if anyone had any ideas how to bridge the concerns. CHAIR REINBOLD suggested the language could read "may" instead of "shall." However, she did not believe that change would address the fiscal impact. CHAIR REINBOLD removed her objection. 2:59:53 PM SENATOR KIEHL acknowledged that the state and municipalities ask much from those who serve as volunteers on boards and commissions. This raises a constitutional issue regarding equal protection. He characterized the Open Meetings Act as good policy. Alaska should be able to view governmental debate and actions taken. He said he does not want to hold up the bill. He said he would not object to Amendment [2]. There being no further objection, Amendment [2] was adopted. 3:00:45 PM SENATOR HUGHES moved to adopt Amendment [3] [labeled as Amendment 2, work order 32-LS-0176\G.5]: 32-LS0176\G.5 Bannister 4/1/21 AMENDMENT [3] OFFERED IN THE SENATE BY SENATOR HUGHES TO: CSSB 15(CRA) Page 1, line 1: Delete "civil penalty" Insert "warning and civil and criminal penalties" Page 1, line 10, following "heard": Insert ", except that, if the alleged violation would be the person's third violation, the commission shall refer the matter to the attorney general for criminal proceedings against the respondent under AS 44.62.310(i)" Page 1, line 12, following "shall": Insert ", if the violation is the respondent's first violation, give the respondent a warning under AS 44.62.310(i) or, if the violation is the respondent's second violation," Page 2, line 4, following "heard": Insert ", except that, if the alleged violation would be the member's third violation, the attorney general shall institute criminal proceedings against the respondent under AS 44.62.310(i)" Page 2, line 6, following "shall": Insert ", if the violation is the respondent's first violation, give the respondent a warning under AS 44.62.310(i) or, if the violation is the respondent's second violation," Page 2, line 18: Delete "liable to the state for a civil penalty not to exceed $1,000" Insert "subject to a warning if the violation is the member's first violation, liable to the state for a civil penalty not to exceed $1,000 if the violation is the member's second violation, or guilty of a class B misdemeanor if the violation is the member's third violation. The Alaska Public Offices Commission shall advise a member in the warning that a second violation is subject to a civil penalty not to exceed $1,000 and a third violation is a class B misdemeanor" CHAIR REINBOLD objected for discussion purposes. 3:00:53 PM SENATOR HUGHES explained that Amendment [3] would add three tiers to the penalty provisions for Open Meetings Act violations. The first offense would result in a warning, the second violation would impose a $1,000 fine, and the third violation would impose a class B misdemeanor. 3:01:15 PM SENATOR MYERS asked for the penalties for a class B misdemeanor. SENATOR HUGHES answered that a class B misdemeanor establishes penalties of up to 90 days in jail and $2,000 in fines. CHAIR REINBOLD removed her objection. 3:01:41 PM SENATOR KIEHL objected. He expressed concern that establishing criminal penalties for inherently civil matters is excessive. He expressed concern about local taxpayers bearing the brunt of criminal charges filed against city employees. The legislature's fiscal notes project costs to the state but the legislature does not see the projected impacts on small municipalities and cities. He stated that larger cities and municipalities have full-time staff to represent their employees, but smaller ones pay hourly attorney fees. 3:03:09 PM SENATOR SHOWER said he agrees that this will result in additional costs to taxpayers. However, the total cost is not limited to financial costs but the cost to citizens for repeated violations by elected officials that impact ethical governance. He emphasized the importance of having effective enforcement policies in place. CHAIR REINBOLD offered her view that the public was treated poorly by the Municipality of Anchorage during the pandemic. She offered her support for Amendment [3]. 3:04:56 PM MS. WILTERDINK said the sponsor supports Amendment [3]. 3:05:08 PM SENATOR HUGHES spoke in support of the tiered approach to violations. She said she believes a class B misdemeanor is appropriate for the third offense. SENATOR KIEHL maintained his objection. 3:05:41 PM A roll call vote was taken. Senators Myers, Hughes, Shower, and Reinbold voted in favor of Amendment 2 and Senator Kiehl voted against it. Therefore, Amendment 2 was adopted by a 4:1 vote. 3:06:30 PM SENATOR KIEHL restated his motion to adopt Amendment 1, [work order 32-LS 0176\G.3 which was set aside on 3/31/21]. 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. 3:06:51 PM SENATOR KIEHL explained that Amendment 1 would make the legislature subject to the Open Meetings Act. It would also require a concurrent resolution to change the Uniform Rules. He explained that his staff prepared a history of the instances when the legislature exempted itself from what is required of officials in the Open Meetings Act. He summarized the history by stating that a number of legislators found it difficult to hold all of their deliberations in the full public view and on the record. However, it is good public policy and is what the law requires of the executive branch and SB 15 would require of municipalities. 3:08:13 PM SENATOR MYERS related his understanding that the genesis of SB 15 was due to the Municipality of Anchorage closing its meetings to the public. He asked if SB 15 passed, if it would force the legislature to open the Capitol to the public, which has been closed due to the pandemic. SENATOR KIEHL answered that the Open Meetings Act provides for public participation by teleconference. Amendment 1 would require legislators to hold their discussions on the record. CHAIR REINBOLD express concern that some people might not have internet access. She stated that she would like the Capitol reopened to the public. 3:09:13 PM SENATOR MYERS said he understands the sponsor's concern. He suggested that if the sponsor would like all activities of legislators open, the committee should consider moving the Capitol. 3:10:18 PM CHAIR REINBOLD pointed out that this committee is the only committee of referral for SB 15. She expressed concern that many legislators cannot go home to their families, so a dinner out could violate the Open Meetings Act. Legislators often reside in Juneau for months. She expressed concern about the unintended consequences of Amendment 1. She suggested the bill should have more than one committee of referral to address the issues. 3:11:27 PM SENATOR SHOWER asked if the legislature is the only body that Amendment 1 would apply to that must meet for three to four months. 3:12:13 PM SENATOR MYERS pointed out that the judiciary is exempt from the Open Meetings Act. 3:12:38 PM SENATOR SHOWER acknowledged that the committee should consider that legislators are in Juneau during the legislative session. Many legislators go out to dinner in small groups and engage in other activities. 3:13:37 PM SENATOR HUGHES agreed that transparency is important. However, the legislature operates outside the Open Meetings Act, under the Uniform Rules and the Legislative Ethics Act. Legislators also receive extensive training on ethics, she said. Currently, the legislature struggles to meet the 90-day and the 120-day session limit. Amendment 1 could drastically increase committee hours when the legislature is intended to be a citizen legislature. While she said she understands the desire for transparency, she cannot support Amendment 1. 3:15:35 PM SENATOR KIEHL emphasized there could be some misconceptions about the Open Meetings Act. He related his personal experience serving on the Juneau Assembly. He said the Open Meetings Act did not prohibit him from attending dinners, social engagements and ribbon cuttings with other assembly members. Still, he could not count votes or discuss municipal issues at these events. He characterized the Uniform Rules and Legislative Ethics Act combined as "fairly weak tea" compared to the Open Meetings Act provisions. People and the press will observe legislators wherever they meet, whether they are in is a small city or a large one. He agreed that the legislature must complete its work timely and that working under the Open Meetings Act would be less efficient. However, it will provide the additional transparency and accountability that SB 15 requires of other elected officials. 3:18:17 PM SENATOR SHOWER offered his view that the legislature operates differently and Amendment 1 would make significant changes. He suggested that the rules the legislature operates under would be better considered in a separate bill. 3:19:35 PM CHAIR REINBOLD expressed her frustration that the legislature operates under the Uniform Rules and Legislative Ethics Act so adding the Open Meetings Act adds an unnecessary layer. She said she tends to lean towards voting no on Amendment 1 but she could support it if the Capitol was moved. CHAIR REINBOLD maintained her objection. 3:20:57 PM A roll call vote was taken. Senator Kiehl voted in favor of Amendment 1 and Senators Myers, Hughes, Shower, and Chair Reinbold voted against it. Therefore, Amendment 1 failed by a 1:4 vote. CHAIR REINBOLD held SB 15 in committee.