HCR 7-UNIFORM RULES: EXECUTIVE SESSIONS  REPRESENTATIVE BRUCE WEYHRAUCH, bill sponsor, reported the bill was drafted on behalf of the House State Affairs Committee after they conducted hearings on homeland security for the State of Alaska. The commissioners of veterans and military affairs and public safety testified in a public forum on matters that did not interfere with any security issues. After that, he asked the committee go into executive session excluding the public and staff so the commissioners could more fully disclose areas of homeland security that may have led to the need for additional policy discussions, legislation, or appropriations. As a result of September 11, homeland security has become a significant part of what legislators do as government policy makers. However, difficulties arose when he asked Legislative Legal and Research Services to invoke certain statutory provisions so that the committee could go into executive session to discuss homeland security. HCR 7 amends the Uniform Rules to allow a legislative body to call an executive session, and specifically exclude the public, to discuss matters that might affect the security of the state or nation or a government unit or agency. The House Rules Committee amended the bill to include the adjective "adversely" to make it clear that adverse affect is what would be discussed in those executive sessions. As a policy matter, the Legislature wants to discuss things as openly as possible with the public, but they must also balance that with protecting the public on matters of security. CHAIR GARY STEVENS asked Ms. Cook to discuss paragraph (3), which refers to discussion of a matter that may, by law, be required to be confidential and whether the current statute already addresses the issue. TAMARA COOK, Director of Legislative Legal and Research Services, advised that lends itself to consideration of information such as tax records that an agency may possess. That type of material is listed in statute as confidential, but information an agency might possess that relates to security matters wouldn't necessarily be outlined as such in statute. That is partly because individual offices may be struggling with pragmatic and practical decisions about how to keep their office physically safe and yet there is no specific statute that says that type of concern is confidential information. In fact, it would be difficult to draft a statute that would take into account all the possibilities that could arise when considering a security matter. SENATOR COWDERY asked if there were parameters to determine allowable security for calling an executive session. REPRESENTATIVE WEYHRAUCH replied it would depend on the expertise and concerns raised by those providing information to the committee. Information from an executive session could always be opened to the public at a later time if it was determined that was in the public's best interest. This is cutting new ground and there is no clear answer. SENATOR DYSON said, "You're right on the mark and I'm surprised that we didn't have this provision and I commend you for doing it." He asked if there had been any significant criticism. REPRESENTATIVE WEYHRAUCH said any criticism was philosophic in nature. It's a balancing act between the public's right to know and the public's need to be protected and is not to be used to evade the natural and necessary public watchfulness on what is happening in government. Paragraph (3) covers not just tax records, but also personnel matters that are required, by law, to be confidential. Many Rule 22 issues are the types of thing Legislative Council discovers when it discusses personnel evaluations or litigation, which makes it more likely that they would invoke that protection as opposed to a legislative committee. Paragraph (4) is an uncommon type of invocation, but there was nothing in statute that made it easy to enter executive session to address homeland security issues. SENATOR DYSON said he agreed with the bill and would like to move it whenever the Chair was ready to entertain a motion. SENATOR GRETCHEN GUESS agreed with Senator Dyson, but wanted to know who would decide on entering executive session. REPRESENTATIVE WEYHRAUCH replied the House State Affairs Committee went into executive session twice to discuss homeland security after talking with each of the commissioners and each member of the committee. After each executive session, he publicly reported what the committee was doing and why. SENATOR GUESS appreciated that approach, but asked Ms. Cook if a specific process would be outlined if the bill were to pass. MS. COOK replied Representative Weyhrauch pointed out that the three existing provisions for going into executive session would depend on the good faith and responsible judgment of the particular legislative body. By the nature of going into executive session, there is no way for an outside person to challenge the decision. She reminded members that when a legislative body goes into executive session, it does not have the power to exclude other legislators. Additionally, a group of legislators' peers could make a collective judgment if they determine a committee was abusing the power to go into executive session. SENATOR COWDERY asked whether a caucus was exempt as an executive session. REPRESENTATIVE WEYHRAUCH made it clear the intent of HCR 7 was not for going into caucus. SENATOR COWDERY asked whether there had ever been any court challenges to a provision of this type. MS. COOK explained The League of Women Voters sued to question whether AS 44.62.310 was violated when the Senate Finance Committee met privately to craft an alternative budget in the last days of a legislative session. Ultimately, a budget was adopted, which was the result of that meeting. The meeting was not a caucus. In that suit, the lower court determined a violation had occurred in the open meeting statute. They held the public enjoyed the constitutional right to access committee meetings. On appeal, the Alaska State Supreme Court said there is no constitutional requirement that the Legislature open any of its proceedings to the public. Furthermore, the statute, which did apply to the Legislature, clearly applied to the Finance Committee and could not be enforced by a court against the Legislature itself. As a result of the holding, the Legislature has elected to enact, in its ethics provision, a requirement that meetings of the Legislature be held according to open meetings principles. At this time, it is a violation of the Legislative Ethics Act for a legislative committee to be held in a way that would obstruct public access. She advised the Uniform Rules probably have no application to caucuses at all. A caucus has been determined to be a private organization and is not a legislative body in the same sense a committee would be. Up until now, caucuses have established their own rules with respect to their meetings being public or private. 4:10 p.m.  CHAIR GARY STEVENS said amending Rule 22, as described, would say that a legislative body may call an executive session for security issues and that a legislative body would include any subdivision of the Alaska State Legislature. MS. COOK agreed. REPRESENTATIVE WEYHRAUCH stated that was the intent. CHAIR GARY STEVENS expressed amazement this wasn't already in place, but mused it wasn't an issue just a short time ago. REPRESENTATIVE WEYHRAUCH replied that although it's discouraging to think about, there is a need. SENATOR DYSON made a motion to move HCR 7 from committee with individual recommendations and zero fiscal note. There being no objection, it was so ordered.