HOUSE RULES STANDING COMMITTEE February 28, 1995 4:30 p.m. MEMBERS PRESENT Carl E. Moses, Chairman Representative Con Bunde, Vice Chairman Representative Al Vezey Representative Bill Williams Representative Jerry Mackie Representative Gail Phillips Representative Eileen MacLean MEMBERS ABSENT All members present OTHER MEMBERS PRESENT Representative Brian Porter Representative David Finkelstein COMMITTEE CALENDAR To adopt the revised open meetings guidelines proposed by the Select Committee on Legislative Ethics as published in the House and Senate Joint Journal Supplement Number 9 on February 21, 1995. WITNESS REGISTER JOSEPH DONAHUE, Chairman Select Committee on Legislative Ethics P.O. Box 101468 Anchorage, Alaska 99510 POSITION STATEMENT: Answered questions regarding open meetings guidelines TERRY CRAMER, Attorney Legislative Legal Services Legislative Affairs Agency 130 Seward Street, Suite 409 Juneau, Alaska 99801-2105 POSITION STATEMENT: Answered questions regarding open meetings guidelines ACTION NARRATIVE TAPE 95-3, SIDE A Number 001 CHAIRMAN CARL E. MOSES called the House Rules Standing Committee to order at 4:30 p.m. Members present at the call to order were Representatives Moses, Bunde, Vezey, Mackie and MacLean. Number 046 CHAIRMAN MOSES announced on the agenda is the proposed amendments to the Open Meetings Act by the Select Committee on Legislative Ethics. He informed the committee members earlier that afternoon the Senate passed a committee substitute which has been distributed to members. It affirms most, but not all, of the proposed amendments. He announced that Joseph Donahue, Chairman, Select Committee on Legislative Ethics, and Suzie Barnett, committee staff, were listening via teleconference. Chairman Moses explained committee members have received material from the Rules Committee staff for review and said the topic is open for discussion. Number 147 REPRESENTATIVE JERRY MACKIE said he had a problem with the resolution that the Senate passed (SCR 8). The reason is because he thought it was very clear in the statute, which was passed relating to open meetings, that the Ethics Committee would submit to the legislature, for approval or disapproval, a proposed set of initial guidelines of which the Ethics Committee would use to operate under. He explained there is nothing in the statute that talks about whether or not the legislature can approve only parts of the guidelines or disapprove some of them. Representative Mackie stated, for the record, he has distributed to committee members two legal opinions dated February 28. The first opinion is addressed to himself and Representative Porter from Tam Cook, Director, Legislative Legal Services, which describes what the statute says and what the authority is that the Ethics Committee has and some case history. REPRESENTATIVE MACKIE explained the second legal opinion from Terry Cramer, dated February 28, talks about three specific questions which he had asked when he learned what the Senate action had done to the guidelines. He noted he chaired the Ethics Subcommittee that drafted the guidelines. When they were submitted, it was brought to the subcommittee's attention that there were some inadvertent errors or potential conflicts with the original version that was drafted. Some were done by oversight, certainly not intentionally. When the subcommittee realized that in consultation with the Speaker and the Senate President, he requested that the Ethics Committee revisit the issue and look at proposed changes in order to clean up the language and to correct some of the inadvertentness that had taken place. Representative Mackie explained that was done as Chairman Donahue did call a special Ethics Committee meeting and it was dealt with last week. Numerous very constructive changes were made that were offered by the chairman of the House Judiciary Committee. Those changes clarified and corrected areas of concern that the committee had. Those were adopted and public input was allowed. The corrections were reviewed and then they were resubmitted. Representative Mackie said it was his understanding that the Senate would act on it February 27, and the House would act on March 1, which met the statutory requirement that they be voted up or down within a 45 day period of time. He said the House Speaker and the Senate President have expedited those issues and brought them to the floor so that the statutory requirement could be met. Number 374 REPRESENTATIVE MACKIE explained what the Senate did with the resolution came as a complete surprise to him because his understanding was exactly what the statute says, that the legislature would either approve or disapprove guidelines that were being proposed. If the legislature chose to reject them, then the process is laid out in statute for that. They would have to go back to the Ethics Committee and, within 60 days, the Ethics Committee would resubmit to the legislature a new proposed set of guidelines, hopefully correcting areas which were determined to be not acceptable by the legislature. Representative Mackie pointed out that nowhere in the statute does it talk about approving part of them and disapproving part of them. The legal opinion from Terry Cramer confirmed what his suspicions were. He said the first question he asked was under AS 24.60.037, which sites SLA 94, "May the legislature approve some but not all open meeting guidelines." In the opinion of counsel, who is also counsel to the Ethics Committee and has been since its inception, the legislation which was passed last year, does not give the legislature that authority. The question remains, "What happens next?" Representative Mackie said his concern is what do we do and where do we go from here. He said he wanted to point out page 1 of the memorandum from Terry Cramer deals with that. REPRESENTATIVE MACKIE explained the second question he asked was what would be the effect if both the House and Senate adopt the Senate version. Would any portion of the guidelines be effective or would all of the guidelines be effective. Representative Mackie said the opinion says it is up to the committee to interpret what that means. In a sense, it gives broader authority to the Ethics Committee to interpret those things rather than taking some sections, which were identified in the "Further Resolved" clause, away from the legislature their ability to consider and receive complaints about those things. Representative Mackie said it is obvious that what they intended to do isn't what the net result is going to be. It gives the legislature the ability to consider complaints without any guidelines to go by. REPRESENTATIVE MACKIE said one thing which was clearly pointed out to him was that guidelines actually are used to for the protection of legislators so they know what they can and can't do. Without this, essentially, the Ethics Committee can make determinations based on their own judgement, based on any individual case. He said he doesn't believe that was the intention. The reason for guidelines is so there is a guide to go by. It is new to everyone. Certainly, everybody involved has been working together cooperatively to bring these things to a vote. Number 418 REPRESENTATIVE MACKIE said the third question is, "What is the effect of the first `Further Resolved' clause on the jurisdiction of the Ethics Committee?" He explained nowhere was the Ethics Committee trying to change any Uniform Rules. These guidelines were brought forth, clearly, under the statutory authority that was given to the Ethics Committee. Representative Mackie indicated Ms. Cramer's definition of the "Further Resolved" clause is in her memorandum. REPRESENTATIVE MACKIE explained he has a problem, from a legal standpoint, as to what this all means now that the Senate has done this. Number 634 REPRESENTATIVE PORTER said having been on the Ethics Committee for the previous two years and was involved in this development process, he concurs with Representative Mackie's conclusion as to the law. The bottom line of what Representative Mackie is saying is that if the House passes the resolution that the Senate passed, we would be passing something that is improper. He said he doesn't know that it is illegal, but it probably would result in a decision that we have, in his estimation, totally rejected the guidelines which he thinks should be interpreted by the Ethics Committee as a requirement for them to revisit and resubmit the 60 day cycle, as the statute requires. Representative Porter said it may be appropriate to ask Chairman Donahue if that is his interpretation. Number 709 JOE DONAHUE, Chairman, Select Committee on Legislative Ethics, said he believes Representative Porter's question was if he had any comments on what the Select Committee on Legislative Ethics would do if the guidelines were passed the way they are, in terms of interpreting it as either rejecting the entire set of guidelines or rejecting parts of them. Mr. Donahue explained he doesn't feel at liberty until he consults with the committee to project what they might do. He said the two options, as he sees it, would be to either determine that the resolution is, in effect, rejecting the (indisc.) Committee would have to submit new ones or that it was deleting basically the section on meetings not otherwise described, and the definition of political (indisc.) such as a non legislative organizations, that go between (indisc.) meetings and that the rest of the guidelines would be in effect. Those issues would be open to further interpretation if someone filed a complaint with the committee. Mr. Donahue said those are the two options that he sees. He noted he did get a copy of CSSCR 8(RLS) and he was somewhat surprised with it. Number 804 REPRESENTATIVE PORTER asked Mr. Donahue if he would consider possibly one of the options being to ask the committee to redraft either those that were not affirmed or all of them, and resubmit as the statute calls for, under the 60 day clause. MR. DONAHUE said, "Yes." One of the options would be to consider the passing of the resolution the way it is and rejection of the guidelines as they were submitted, thereby requiring the Ethics Committee to resubmit them. He said with these eight areas that are pointed out, these are the ones that the Ethics Committee would try to clarify. Mr. Donahue said he believes that is an option. The other option would be to take the sense of the resolution and determine somehow or another that the legislature would have adopted the guidelines without both parts. He said in terms of the aspects dealing with not conflicting (indisc.) to the Uniform Rules or dealing consistently with the presiding offices of authority, he isn't sure what was on the minds of the Senate when they passed those two parts so he doesn't know how to interpret that. Number 882 REPRESENTATIVE MACKIE said it is the opinion of Legislative Legal that these questions can only be answered by the Ethics Committee. His point is that we're giving a very broad scope of authority to interpret what is meant. It was supposed to be that we would either approve or disapprove. Representative Mackie explained that there is three things that could happen. One, the Ethics Committee could decide parts of the guidelines that were approved will take effect and that will constitute initial guidelines. If they reach that decision, the committee would then be able to amend the initial guidelines and do what ever they wanted with them. A second possibility is that the committee would decide that failure of the legislature accept the entire package is total rejection. He said that would be the story and he isn't sure that they would want to have their name on because there has been a lot of work that has gone into the guidelines. He said there has been a lot of cooperation in the House, especially from the Speaker and Representative Porter. Representative Mackie explained the last possibility is the committee could decide that the legislature lacked the power to offer amendments and make changes to them. Essentially, the Ethics Committee could say that the legislature didn't have the ability to do that. He noted he isn't at liberty to say what the Ethics Committee would decide. Number 972 REPRESENTATIVE MACKIE referred to the issue of what to do with the resolution and suggested the House amend the it removing those stipulations inserted by the Senate and approve the open meetings guidelines so that the monkey isn't on the House's back. He said this is not a patrician talking, this is a House versus a Senate issue obviously. Representative Mackie said he doesn't know that the House wants to go on record rejecting the guidelines if that is what the Ethics Committee or the what the courts finally decide what the action was. He said he is pretty sure there isn't an effort in the House to find a back doorway to reject the guidelines. He said that is an appeal to committee members to consider that as an option. We are put in this position and not by our own choosing. Number 1034 REPRESENTATIVE AL VEZEY explained he shares the same concerns that the Senate expressed in the resolution. He said he doesn't believe it is a proper way to express them, but noted he might be wrong. Representative Vezey said his suggestion is that this be done very clean and simply reject the guidelines and pass a resolution addressing what the concerns with the guidelines are. Number 1083 REPRESENTATIVE EILEEN MACLEAN asked Representative Mackie to explain what the number three "Further Resolve" clause is on jurisdiction of the Ethics Committee. REPRESENTATIVE MACKIE said he would like to forward that question to Ms. Cramer as she wrote the opinion. Number 1111 TERRY CRAMER, Attorney, Legislative Legal Services, Legislative Affairs Agency, referred to question number three of her memorandum and said she isn't sure what the affect would be. She said it would be an issue that would be subject to interpretation, by the committee, if a question in the form of a complaint or otherwise ever arose. You get a situation where both the Uniform Rules and the guidelines could be addressing the same topic. It is possible that what this means and what the committee (indisc.) it means is that when an issue had been raised concerning compliance with both the Uniform Rules and the open meeting guidelines on the floor of the body, and there had been a ruling by the presiding officer that the interpretation, as to the Uniform Rules, would bind how the Ethics Committee should interpret the open meetings guidelines, which otherwise are the responsibility of the Ethics Committee. She said she doesn't believe that is said entirely clear and she doesn't know if the committee would reach that understanding of it. Ms. Cramer said she believes maybe that is what it means. She stated she doesn't know for sure. Number 1206 REPRESENTATIVE GAIL PHILLIPS said if the House didn't act on March 1, would it nullify any action that might be taken at a later point in time. She asked if the legislation which states it must be brought to the floor within 45 days, is a hard and fast directive on the legislature or is it something that can be held until there is time to analyze and do more study on the Senate changes. MS. CRAMER explained there are no consequences stated in the legislation for failing to comply. She said she would assume that if the legislature subsequently acted to either vote them up or down, the committee would honor that subsequent action. REPRESENTATIVE PHILLIPS said if the bill is amended, the 45 day deadline will be missed. If an amendment is added, and it goes back to the other body, they would have to have a special meeting. She said she wouldn't expect them to do that. It wouldn't go through the final process in 45 days. REPRESENTATIVE MACKIE said he doesn't consider this a majority or minority issue, but considers this an issue of complying with the statute and voting to either adopt or reject proposed guidelines that the Ethics Committee, in conjunction and cooperation with the legislators, put together. It is not an avenue to only reject or approve part of them. That is not something which was allowed for. From that nonpartisan approach, he is concerned that we are all going to be painted with the same brush. Representative Mackie said if it is brought to the floor, and there recommendations to reject them and they are sent back to the Ethics Committee, it will become a partisan issue. He said he cannot vote to reject, in its entirety, the guidelines. Representative Mackie said he can vote to amend the resolution back to original version to approve or not approve and send it back to the Senate. Number 1347 CHAIRMAN MOSES said technically, the statue is very clear that the legislature has 45 days to act. If you interpret it to the letter of the law, not acting within 45 days is actually a rejection. Number 1363 REPRESENTATIVE CON BUNDE said there are times when we feel compelled to do something even if it's wrong. He said this is an issue of where he certainly wouldn't counsel that the legislature to just pass it on to get it over with. No matter what is done, the 45 day limit won't be met. He said he isn't sure that should affect deliberations. Representative Bunde said if the House amends the bill, it needs to go back to the other body and it wouldn't make the 45 day limit. He said he thinks that accepting is the same as rejecting because he doesn't believe the committee would accept the this as it is written. Representative Bunde said as he reads it, it is very clear that it is all or nothing. It is a choice whether they reject a flawed proposal or amend it. In either case, they won't meet the limitation. Number 1425 REPRESENTATIVE MACKIE said the Senate will be meeting tomorrow after the House meets. He asked if tomorrow is actually the 45th day. REPRESENTATIVE PHILLIPS said it is the 45th day. Representative Mackie said if the House amended the resolution and sent it back to the Senate, then they would have an option of concurring with the amendments. If they did that, the 45 day rule would be met. Representative Mackie said if the House amends the bill and sends it back to Senate, the House would be meeting the statutory requirements. The Senate may accept the House's amendments or may they may not. If they don't accept the House's amendments, then they are essentially rejected. The House has done its job and complied with the statutory requirement. He suggested that Representative Phillips may wish to consider this as an option. Number 1487 REPRESENTATIVE BUNDE said the point is well taken. He said he wasn't assuming that this is probably the incentive to operate with that kind of speed and dispatch, tho it is a possibility. REPRESENTATIVE PORTER referred to where are we and where are we going and said where we are is that there is no way that the House of Representatives can, in a timely fashion, confirm the guidelines so that they would go into effect. The Senate has already decided that we can't do that because of whatever they did. It was not acceptance of the guidelines. Representative Porter said given the 60 day requirement where the Ethics Committee has to try to produce a recycled version, if the House Rules Committee and the House passed a resolution which was in some way different, the result is a requirement that a conference committee be appointed to try to resolve whatever their position is so that the legislature could affirmatively give something to the Ethics Committee to work with. Number 1569 REPRESENTATIVE MACKIE explained the only reason there would need to be a conference committee is if they failed to agree with the House's amendments. If the House amends the bill, passes something that affirms the guidelines and sends it back to the Senate, and if the Senate chooses to not accept the House's version, that is their problem. The House has done its job. Representative Mackie said his main concern is that the House should do it right. Number 1628 REPRESENTATIVE MACLEAN said she agrees with Representative Porter and Representative Mackie and said the committee should follow their recommendations and it should be nonpartisan. Number 1649 REPRESENTATIVE FINKELSTEIN stated he also agrees with Representative Porter and Representative Mackie. He said he didn't believe members should be overly concerned with the 45 day deadline as the action of the legislature which would matter would be an action, based on Ms. Cramer's memorandum, is a resolution to confirm the guidelines. No matter when that resolution was passed, it would still be effected. Representative Finkelstein said Representative Porter's point is very important in that if it comes to a conference committee, that is the most appropriate thing as there is confusion. He explained he believes there is confusion within the Senate as he doesn't think they understand what the guidelines do. Representative Finkelstein said he believes the guidelines are extremely reasonable. Legislators were involved in the drafting. He said the Senate also misunderstands that the legislature has to approve, up or down, the whole batch instead of what they have chosen. They also misunderstand the effect of their resolution. If it was to be adopted and the provisions weren't included in the guidelines, it would essentially would be non sensible. Number 1717 REPRESENTATIVE BUNDE moved to amend CSSCR 8(RLS), on page 1, line 11, replace the word "affirm" with "approve" and follow that word with a period and delete the remaining language. MS. CRAMER suggested the committee might want to consider amending the title because it says "Approving in part..." CHAIRMAN MOSES suggested going back to the original version. MS. CRAMER said that result would be reached. Number 1782 REPRESENTATIVE BUNDE withdrew his motion and moved that the House Rules Committee adopt SCR 8, the original resolution. CHAIRMAN MOSES asked if it was in lieu of the committee substitute. REPRESENTATIVE BUNDE agreed. REPRESENTATIVE MACKIE said if that happens, then the bill would become a House Rules committee substitute. He said he is in favor of the motion. Number 1815 There being no discussion on the motion, CHAIRMAN MOSES asked for a roll call vote. Representatives Moses, Bunde, Phillips, Williams, Mackie and MacLean all voted in favor of the motion. Representative Vezey voted against the motion. The committee substitute was adopted. Number 1873 There being no further business to come before the House Rules Committee, CHAIRMAN MOSES adjourned the meeting at 5:10 p.m.