SB 105 LEGISLATIVE ETHICS CODE REFORM  CHAIRMAN GREEN brought SB 105 back before the committee and stated the committee would continue with the overview on the legislation beginning with Section 32 at the bottom of page 16. JOE DONAHUE , a public member of the Select Committee on Legislative Ethics participating in the meeting via teleconference from Anchorage, presented the following overview, as well as responding to questions from comittee members. SECTION 32. This section relates to advisory opinions. The proposed lnguage in this section allows the committee to issue an advisory opinion to a person who anticipates becoming a legislative employee, 45 days prior to employment. It also allows the committee 60 days to respond instead of 30 days. Mr. Donahue said the cost of getting together and also trying to get legal advice in the 30 days has been quite difficult. Subsection (b) contains language to restrict attendance by a person who requested an opinion, including a legislator, during deliberations in the executive session on the advisory opinion. He added that it is the way the committee has been operating, but it wasn't absolutely clear in the statute. SECTION 33. Current law requires the committee to process complaints, even if against all the members of the legislature or all members of one house, etc., -- things like that that are blanket and would take a lot more collusion than would be a normal situation. This section makes it clear that the committee wouldn't have to do anything with those kind of complaints and can return them to the complainant. It also allows the committee to reinstate a complaint if an employee, who has terminated, is rehired or if a legislator, who has left the legislature, is reelected in less than five years. It makes it clear in terms of the five-year moratorium on going back and looking at potential violations. SECTION 34. The new language clarifies that the complainant must sign a statement that says that they have reason to believe that a violation has occurred and that the person who files it may be called to testify, as well as placing the responsibility on the committee to notify the complainant. Mr. Donahue noted the form the complainant signs already has such a statement, but it isn't clear in the law that was the situation. He added that this is a partial response to some of the complaints the committee has had from legislators and others that there is no strings on the person who files the complaint. CHAIRMAN GREEN asked if there has previously been anonymous complaints. MR. DONAHUE acknowledged there have been, but unless they are signed and sworn to, the committee doesn't deal with them. SENATOR MACKIE voiced his agreement with the proposed language because it strengthens the provision and cuts down on a lot of frivolous, politically motivated type of activity that the committee does not want to deal with. SECTION 35. This section relates to a preliminary exam and dismissal if there is absolutely no merit. Mr. Donahue said they have had cases in the past where, based on either a quick investigation of the written record or something submitted by the subject of the complaint, or even by the materials in the complaint itself that there was really not going to be a need for an investigation, but there might be a need for some preliminary or follow-up investigation for clarity. He noted Ms. Barnett, staff to the committee, has been allowed to do some of that under the direction of the chair, but it hasn't been clear that that preliminary investigation could take place. SECTION 36. This section clarifies that the deliberations, the vote on the dismissal order and the decision on a finding of lack of probable cause can take place and will take place in the confidential executive session. CHAIRMAN GREEN asked if there is a time frame in the process set out for the committee for a specific action on a complaint. MR. DONAHUE answered there isn't a time frame in the statute, although in the past, they have tried to move forward with them as fast as possible. CHAIRMAN GREEN inquired if there is a penalty for an individual who makes a frivolous complaint. MR. DONAHUE replied there isn't a provision for a frivolous complaint, but there is a provision for a fraudulent complaint, which is very different from frivolous. SECTION 37. This section clarifies the procedures if after a finding of probable cause and corrective action, the individual agrees to do the corrective action and then later doesn't. It provides a mechanism where it would could come back to the committee and the committee could go forward with the formal charge. Otherwise, without this, there is a question of the committee retaining any jurisdiction. TAPE 97-11, SIDE B Number 572 SECTION 39. This section relates to discovery. Mr. Donahue said the way it is currently written in statute, it's somewhat confusing as to when discovery takes place. The committee has interpreted it as discovery taking place after probable cause has been determined and has not generally allowed discovery prior to probable cause with a limited exception. This would clear that up and permit the committee to adopt procedures to let it allow discovery earlier in the stages, as well as putting restrictions on how much discovery that would be. He noted it also changes subsection (b) to subsection (h). SECTION 40. This section relates to attendance at executive sessions and the waiver of confidentiality. The proposed language clarifies that all the meetings of the Ethics Committee concerning an individual complaint that are closed to the public, i.e. the confidential deliberations, are also closed to the legislators unless they are a committee member. As has been the committee's practice, it allows the committee to call in the subject of the complaint and give the opportunity to present their side of the story or to talk to committee, but they would not stay in for the deliberative process itself. SECTION 41. This section requires the committee to put a timetable on when someone must finish whatever corrective action and whatever sanctions the committee recommend to the Legislature. Mr. Donahue said the statute was silent on this, and the committee had bad experiences of failing to place any deadlines. This will make it statutory that there be deadlines and it will allow fines if they are met. SECTION 42. This section is an additional timetable for after the Ethics Committee makes a recommendation for sanctions to the Legislature. It is requiring the legislators to let the committee know what timetable they agreed to so that if it has to come back to the Ethics Committee for failure to comply, then they will know where they are. Mr. Donahue advised that the current law is totally silent on any deadlines for sanctions or corrective actions. SECTION 43. This section relates to recommendations where the violator is a legislative employee. The current code says that the recommendation is to go to the appointing authority, and the proposed language clarifies who the appointing authority is in each instance, and the companion SECTION 44 will define the appointing authority. Mr. Donahue said this is to let legislators be the supervisor of their legislative employees, but in Legislative Budget & Audit, that director is the supervisor, and that who the corrective actions or the recommended actions would go to in each case. SECITON 45. This section relates to recommended sanctions. The current law is totally silent as to what kinds of sanctions there might be. Mr. Donahue said the committee, in its deliberations without breaching any confidentiality, went to a lot of creative brainstorming to come up with sanctions. This would give at least some idea to both the public, the potential subject of the complaint and the committee and its members of some of the kinds of the sanctions that might be available. Some of these sanctions would also include fines. SECTION 46. This section relates to financial disclosure by legislators, legislative directors, public members of the committee, and certain legislative employee. Mr. Donahue pointed out that under the current law legislators and legislative directors are required to annually file the financial disclosure statement with APOC, but the employees are not, and this will require that employees who are at Range 19 and above who are handling a lot of constituent dealings and have more responsibility to file the statement. He noted the old legislative ethics bill that was in place before 1993 had a similar provision for Range 19 and above. Number 512 BEN BROWN , staff to Senator Tim Kelly, pointed out that Section 46 is the provision that created the fiscal note and the fiscal impact in the bill because APOC will have to employ additional staff to handle the disclosures from the Range 19 employees and above. MR. DONAHUE noted that the concept of adding the Range 19 employees is added to the next three sections of the bill. CHAIRMAN GREEN asked if the bill contains a definition for "certain legislative employees." TERRY CRAMER , Legislative Legal Counsel, Legislative Affairs Agency, directed attention to Section 53, paragraph (15) which defines "legislative employee who is required to disclose." She added that the old ethics law did not apply to employees who were compensated below Range 18, so far as she knows there has never been a requirement that "run of the mill" legislative employees filed financial disclosure statements, so this is new in that respect. Singling out employees paid at a higher range has been done in the past. Number 485 SENATOR MACKIE asked if this would apply to anyone that works for any branch of the Legislature that is a Range 19 and above, and MS. CRAMER answered that it would. MR. BROWN said in the fiscal note it is estimated that this provision will add 192 new filers every year and then a turnover of about 20 filers a year. SECTION 47. This section relates to deadlines for filing of disclosure statements and it adds the Range 19 and above employees to the reporting deadline, as well as changing the deadline from April 15 to February 15. Mr. Donahue said this is part of an effort to make all of the reporting dates the same time period and earlier in the legislative session so anyone who wants to review what has been filed will have a chance to do so before the session is over. SECTION 48. This section provides for a penalty for late filing. Mr. Donahue said that currently there is no penalty for a late filing. A fine makes more sense than finding the individual in violation of the statute and then trying to figure out a sanction for it. MS. CRAMER clarified that Section 48 relates to filing financial disclosure statements. The more general penalty for not filing disclosure statements to the Ethics Committee is found at Section 51. SECTION 49. This section adds the Range 19 and above employees and the public members of the Ethics Committee to those who would forfeiture nominations to their office if they failed to file. SECTION 50. This section would allow a person to file a late disclosure, but the individual would be subject to a fine or to having a complaint filed against them, in theory. SECTION 51. This section permits the Ethics Committee to impose fines for late disclosures and give a price range not to exceed $2.00 per day to a maximum of $100 for each disclosure. If the committee finds that the late filing was inadvertent, the maximum fine is $25. MR. DONAHUE expressed concern that by using the term "inadvertent" it may be opening up a gray area because it means somebody has got to determine what's inadvertent and what's not. SENATOR PEARCE recommended leaving out the "inadvertent" language, and, if the committee decided the higher fine wasn't necessary, it could then impose a lower fine; the committee would still have the latitude. Number 387 SENATOR MACKIE moved as Amendment No. 1, on page 26, beginning on line 18, delete the sentence "However, if the committee finds that a late filing was inadvertent, the maximum fine the committed may impose under this subsection is $25." Hearing no objection, the Chairman stated the amendment was adopted. SECTION 52. This section makes a change to the definition of "immediate family" and it applies back to the contracts on leases section and the section on nepotism. These changes conform with 24.60.080(g) of this same bill. Number 368 SENATOR PEARCE asked if the family definitions are consistent throughout the ethics bill so that disclosure requirements are the same as gift requirements. MS. CRAMER responded they are not, and she thinks it is a deliberate choice on the part of the previous Legislature that considered this bill. The definition of family member is more inclusive in the gift area. But for the kinds of financial relationships that would be coming up in a contract area or a nepotism area, it's a more limited definition of family so that the prohibitions that those sections impose are applied to a more limited group of people. SENATOR MACKIE noted there are a number of different areas in the bill relating to family, and he suggested double checking to see that there is some consistency in the definition of family for disclosure, gifts, reporting or wherever it is applied. MS. CRAMER said she would check to be sure how family member is used in the bill and in existing statute. SECTION 53. Mr. Donahue said this section adds the Range 19 employees and the public members of the committee to those that are required to file the financial report to the Alaska Public Offices Commission, as well as adding "spousal equivalent" to the list of those whose income must be reported. SECTION 54. This section provides an effective date of January 1, 1998. SENATOR MACKIE suggested it would be less confusing for the committee members if any additional amendments to the bill be dealt with individually before adopting a final committee substitute. Number 208 CHAIRMAN GREEN thanked Mr. Donahue for his participation in the meeting before adjourning the committee at 5:05 p.m.