HOUSE RULES STANDING COMMITTEE January 31, 1997 6:03 p.m. MEMBERS PRESENT Representative Pete Kott, Chairman Representative Gail Phillips Representative Al Vezey Representative Kim Elton Representative Brian Porter Representative Bill Williams Representative Irene Nicholia MEMBERS ABSENT All members present OTHER HOUSE MEMBERS PRESENT Representative Jerry Sanders Representative Joe Green Representative John Cowdery COMMITTEE CALENDAR Continuation of January 29, 1997, meeting: Select Committee on Legislation Ethics Decision H 96-02 WITNESS REGISTER PATRICK M. RODEY, Attorney 733 West Fourth Avenue, Suite 206 Anchorage, Alaska 99501 Telephone: (907) 279-8657 POSITION STATEMENT: Presented historical background on drafting of the Alaska ethics statutes ACTION NARRATIVE TAPE 97-5, SIDE A Number 016 CHAIRMAN PETE KOTT called the House Rules Standing Committee meeting back to order at 6:03 p.m. All members were present. CHAIRMAN PETE KOTT: Are we ready? Okay. We'll call the House Rules Committee to order at 6:03 p.m. on Friday, the last day of January. It's the 31st for those who are keeping track. We will continue the hearing on the ethics charges against Representative Sanders and it is my intent this evening to call one final witness at which point we will then enter into debate concerning what we have heard over the last three days. Based on the hearing this evening and the discussion between the committee members I will then direct my staff to construct comments on a draft proposal that will be before the committee during the next stage. It's - it's my intent to have something hard copy for you to look at based on the discussions that occur this evening, so that at that point then we can recommend to the House, based on what we have before us, our particular matter. Representative Nicholia. Number 132 REPRESENTATIVE IRENE NICHOLIA: Now is this, the proposal that you're talking about, is this a proposal that is gonna to come in front of us, that if we -- if it's a proposal that fits this hearing and that will be the proposal that will go to the floor. Is that what you're saying? CHAIRMAN KOTT: That's correct. Again, based on -- when we entered the discussion on this matter, I'll again direct my staff to reconstruct the major issues that were identified during the discussion. They'll be listed and at that point you'll have those draft recommendations, or issues, or ideas before you, at which point then we will go through em on an individual basis and come up with a consensus on what should be then provided to the full House. At this point, we don't have anything before us and at some point we'll have to have a draft proposal as per the - the statute. Representative Elton. Number 216 REPRESENTATIVE KIM ELTON: Thanks Mr. Chair. I mean I -- we probably will need to get into debate and if you would prefer having this debate at some other point I'd - I mean I'd appreciate that and I wouldn't object, but - but I guess my understanding is that what we have before us in this committee is H96-02. CHAIRMAN KOTT: That's correct. REPRESENTATIVE ELTON: And at some point we're going to have to dispose of - of that if you want to get a new draft or a new proposal. Is that correct? CHAIRMAN KOTT: I think we will still have H96-02 before us during the next hearing, but we will also have a summary of the dialogue that took place this evening so that you will be able to read and understand the issues as well as some of the comments regarding this particular case. At that point, then as a committee, we're gonna have to develop a consensus on our findings and any recommendations. It's like any committee process, you're going to have to have something before us in the form of a hard copy before we can really look at it and understand it. I would feel very uncomfortable drawing a conclusion in my recommendations and forwarding that to the full House without at least bringing in a consensus among the committee members. In order to do that, we're gonna to have to have a hard copy and, again, I will reconstruct all the issues and we'll just go through em one by one because I'm sure everyone has several comments. Number 342 REPRESENTATIVE ELTON: Probably, I - I don't -- I think I need to see by example, so I'll just wait. I appreciate your trying to clear this up for me, Mr. Chair, and I'll wait till we get to that point. REPRESENTATIVE KOTT: Okay, thank you. During -- when this matter was referred to House Rules, I received a call from Mr. Rodey, that was last weekend, who indicated that perhaps he could share or shed some light on some of the issues that we were facing. I told him at that point in time that I would consider it. Based on the testimony that we've heard with some of the issues, especially some of the definitions that may be forthcoming, I saw that perhaps it would be an opportunity - an opportunity to hear from him based on his background in legislative ethics. I believe he was involved, at least in some respects, to the drafting of the current ethics code. I called him last night and he flew down this morning for this particular hearing and that's the reason why I've invited him down here to share some information or shed some light on the matter. So at this time I would like to call Mr. Rodey to the stand and if you would repeat after me as we have done with all previous witnesses. Raise your right hand please, "Do you solemnly swear to tell the whole truth, tell the truth, the whole truth, nothing but the truth, about the information you're about to give the committee so help you God." PATRICK M. RODEY, ATTORNEY: I do. CHAIRMAN KOTT: Thank you. Please state your name and affiliation for the record and also would you comment briefly on your - your background or experience. Number 478 MR. RODEY: Yes, (indisc.) please the chair, my name is Patrick Rodey, I'm an attorney, I have served 18 years in the state Senate, all of those on the Judiciary Committee. I have been involved in the drafting of all of the ethics laws that we have passed since the first one in the 1978, I believe it was and was involved in the drafting of the statute that you have before you today in my last year in the Senate. I am a Democrat and served as a Democratic senator for those 18 years and also served on the Ethics Committee that was previously the Legislative Ethics Committee before it was changed by the legislation which you have before you. Let me comment briefly on the legislation that you have before you. There was a great deal of difficulty in arriving at a final version. Difficulty didn't involve a section of the statute cited by the Ethics Committee in the - in the present case before you, but the statute was put together piece mealed -- the -- a brief look at the bill, the number of places that the bill went and the things that were involved in the drafting of the bill leads you to the conclusion that it was a - a piece of legislation that no one knew quite what to do with. It was a product of the Special Committee on Legislative Ethics that was chaired by Senator Collins. I spent a lot of time working with Senator Collins on this and the - the basic problem with the statute and I'm the first to admit as I did then that it was put together piece meal. As a consequence, there are a number of deficiencies in it, some of those which will affect the case before you. For example, the question of the use of office accounts was - was not... CHAIRMAN KOTT: Excuse me, Representative Elton. Number 643 REPRESENTATIVE ELTON: A point of information. I don't know where we're going here and I'm - I'm - I'm not sure I necessarily want to know where we're going, but are there going to be other witnesses? A couple of questions maybe so we can establish the bonafidies (ph) here and I - I guess I was under the impression that Senator Rodey left the legislature prior to this 1992 statute and so I'm confused here as to timing, when you say that you participated in the drafting of all the legislative.... Number 680 MR. RODEY: I left, I left in `92, the statute was draft in `92 and was -- became effective in `93. REPRESENTATIVE ELTON: Mr. Chair, I may be confused. I thought that this statute was - was drafted and sponsored by Representative David Finkelstein and - and I'm confused on timing a little bit here. CHAIRMAN KOTT: I believe that bill that Representative Finkelstein drafted was the - the second bill, was a revision of the existing... REPRESENTATIVE ELTON: Okay, well... CHAIRMAN KOTT: ...that I think includes the same, primarily the same language. Number 728 REPRESENTATIVE ELTON: Mr. Chair, if you will indulge me again, I guess I'd request a ruling from the Chair. I mean I'm not sure that what we're embarking on here is even properly before the committee. I mean we announced a public -- a series of public hearings. You've gone into recess instead of adjourning this, but - but what we announced to the public that we would be hearing is H96-02. I have a real concern that what we're doing is we're now complete -- we're broadening this whole exercise here into something that was not publicly noticed and that is not properly before this committee. This committee should be dealing with H96- 02, not - not with finding out what the problem with the statutes is. REPRESENTATIVE KOTT: I agree with ya and I believe that Mr. Rodey, at least in my discussion with him, will offer some insight on some of the issues that are questionable in H96-02, primarily in the definitional areas regarding for instance, not what is nongovernmental versus governmental. I mean that I think is one of the main issues that came up over and over. We addressed it with the Ethics Committee, we addressed it with Representative Sanders and no one has seemed to come to grips with what does it really mean or what should it mean and I think at this point that perhaps Mr. Rodey can at least give us some background because I've looked through various aspects of law and I have looked at the ethics bills in the past and no where have I found the word nongovernmental mentioned, so I think it's important that if he has that information that it would benefit the committee. That's the sole purpose here, we're not expanding the scope in any way by inviting another witness in as I mentioned at the very beginning of the proceedings. Mr. Rodey please do stick to the - the definitional areas that would be of assistance. Number 865 MR. RODEY: The questions that have been raised are one of - of - office, office accounts in the existing statute that was - was -- it was not dealt with, you know, sufficiently. It was, for whatever reason as it went through the process, not - not set - set forth in the separate fashion that it should have been. And the concern was in other areas and there was just the general assumption that the office accounts were taken -- used by the members for the purposes of their legislative duties. Secondly, the term "governmental purpose" was for the first time used, previously legislative purpose or some synonym to that and I did do a quick computer search and there is no governmental purpose that has shown - ever shown up previously and that was one of the - one of the concerns. The word - the word "nominal" is a drafting phrase by the - the drafters. I know that's a question that the committee is concerned about. And the discussion there was centered around a floor where diminimous (ph) matters, that is, using the legal phrase diminimous lacks the -- the law does not take trifles, those things that are very, you know, very minor would not be an item that someone could either use or would be much like APOC, the cause for taking up a great deal of the committee's time. The - the - the mailing list language in the - in the bill, and I don't recall at this time where the exact origin of that, but it's - it's unworkable language and the... REPRESENTATIVE BRIAN PORTER: Which - which language did you mention? MR. RODEY: The - the mailing list language. The - the governmental - the governmental mailing list language because -- in the statute. REPRESENTATIVE PORTER: Mass mailing? MR. RODEY: You know it talks about governmental mailing - governmental mailing list. REPRESENTATIVE PORTER: Do you got a reference? MR. RODEY: Under Standards of Conduct, it talks about the use of mailing lists, computer data or other information in Section 24.60.030 of mailing lists lawfully obtained from a government agency and available to the general public for nongovernmental purposes. The - the fact of the matter is that most mailing lists, if not all, or the vast majority are from private sources and that wasn't - that wasn't dealt with. A small portion come from, for example, even the governmental sources come from private enterprises that are involved in this, for example, the computer companies that sell lists of people who have hunting and fishing licenses et cetera. And that, you know, in retrospect, that was was not - not addressed in the fashion that it should have. The -- there were - there were some questions raised that weren't dealt with at the time the procedure was established for the - the new Ethics Committee, previously had been strictly Legislative Ethics Committee, the constitutional question of the requirement that a person be require to do certain things or there would be a penalty when charges brought against them has some constitutional problems. The... Number 1139 CHAIRMAN KOTT: Was that - was that issue addressed in the findings or -- of the Ethics Committee that we are referring to there? Can you reference... MR. RODEY: The question was - was discussed at one point and, however, it went through so many different committees and processes and amendments that, again, putting together a bill in a piece meal fashion does not provide for a very tight and coherent piece of legislation and that - that is certainly one of the problems of the -- the final decisions were made as, in many cases, at the end of the session and the - the procedures that should have been outlined to provide the Ethics Committee with more guidance and the individual subject at Ethics Committee were - were not - were not addressed and that was - that was something that was a concern in the Senate Judiciary Committee and was as many things happen not in my opinion done as carefully as it should with the rights and responsibilities spelled out as clearly as they should. Through the Chair, I'd be happy to answer any questions. I think I've dealt with the gravamen of the issues and the case before you and, through the chair to Mr. Elton, I -- it's not my intent to give the discourse on the entire bill, but deal only with those points in contention. Number 1234 CHAIRMAN KOTT: Well as you are probably aware of after spending so much time in the legislature you find often times that legislation is put together piece meal and, in many cases, it's done correctly and appropriately without near the problems that there appears to be with some of the language in this particular matter. Questions for Mr. Rodey? Representative Elton. REPRESENTATIVE ELTON: Thanks. Through the Chair, Mr. Rodey, you indicated that you drafted the law that we're now -- that the Ethics Committee is now... MR. RODEY: I didn't draft it solely of course, I was one of those persons that did work on the drafting and did meet with Senator Collins over a period. Then, in addition to those meetings as the Vice-Chairman of the Senate (indisc.--coughing) worked on it at that juncture as well. REPRESENTATIVE ELTON: Through the Chair, are you being paid for your assistance to the committee now? MR. RODEY: At this point, that question hasn't arisen. Number 1311 REPRESENTATIVE ELTON: I guess the one question I've got, and we can go back to other members, but it seems to me that the evolution of the ethics statute, the evolution has always been to add more public members. The first - the first Ethics Committee had one public member, the second generation had an equal number of legislators and (indisc.) the last generation - generation that we're discussing now has more public members than legislators. Can you tell us why that evolution has occurred? MR. RODEY: I don't think that it would be appropriate to - to - to comment on it other than to state that certainly there's been increasing concern with -- by the legislature with, you know, it's own conduct and there has been attempts and very approaches have been looked at and discarded. That has been - been one approach, you know, that has been considered. There.... REPRESENTATIVE ELTON: Thanks Mr. Chair. Number 1379 CHAIRMAN KOTT: Just for the record, House Bill 4, which I believe was Representative Finkelstein's bill, was rolled in to Senate Bill 185. Further questions for Mr. Rodey? Speaker Phillips. REPRESENTATIVE GAIL PHILLIPS: Thank you Mr. Chairman. Mr. Rodey, in looking at the term "governmental purposes" the -- and looking at this particular case, the Ethics Committee came up with the language "legislative purposes," they didn't use the word "governmental purposes" which is in the statute. Did you (indisc.- -coughing) in your -- in the time that you debated this in Senate Judiciary Committee did you look at the difference between legislative purposes, nongovernmental purposes, governmental purposes, public purposes. Did you look or have a discourse on that whole issue and keeping in mind again that the statute before us only refers to nongovernmental purposes. It does not refer to legislative purposes. Number 1432 MR. RODEY: No, there was not in the Senate extensive - extensive discussions on that. It was - it was felt that the parameters were well established, in fact the work draft copy by the - by the Senate Special Committee on Ethics stated it fairly clearly and it said, and I'll quote, "This section does not prohibit customary constituent contacts by a legislator including newsletters or other constituent correspondence that expresses - expressed the legislator's opinions or views on issue before the legislature or that describing the legislator's votes, legislative proposals or other legislative actions." That was the version that the Senate dealt with. We felt comfortable that that was clear enough to provide some guidance, sufficient guidance to the legislator and to the Ethics Committee. And the final draft did not - did not end up that way and as a consequence the difficultly of the insertion of a new phrase that had never before been in ethics legislation was inserted in, which gives rise to the problem that the Speaker refers to. And I quite frankly can't tell you, and I don't know how many can, what - what the difference is and the - the - the problem is that you're running very close to a constitutional problem of being void for vagueness. And the section that I just read you is much clearer than the final statute I believe. CHAIRMAN KOTT: Representative Vezey. Number 1534 REPRESENTATIVE AL VEZEY: Thank you Mr. Chairman. Mr. Rodey, just -- I'm probably straying just a little bit, but getting back to the Constitution, Article 2, Section 12, I think that says that each house shall be the judge of its own members. As an attorney, didn't working on a bill that would set standards for conduct within the legislature and would be, I suppose interpreting the Constitution, did not that trouble you? MR. RODEY: Yes. I expressed my concerns and it was -- wouldn't - wouldn't have been the first time that the expression of my concerns was not the order of the day and.... REPRESENTATIVE VEZEY: I've had that experience once or twice. If I -- you know I have trouble -- and I appreciate your comments and I did follow this legislation and it was kind of interesting to hear your perspective versus what I was able to read in various publications, et cetera, but is it appropriate that the Seventeenth Legislature would stand in judgment of the conduct of a member of the Twentieth Legislature? MR. RODEY: No legislature can bind another legislature and certainly that the Twentieth is not - is not bound by previous action of the legislature. Unfortunately, when matters are incorporated in the statutes that sometimes happens to be the case and you have a conflict between the - the law and especially in this case when you're dealing with an internal matter that the supreme court has (indisc.) said is the province of this house and that is in effect what is happening. Number 1642 REPRESENTATIVE VEZEY: If you'll indulge me Mr. Chairman, that's kind of where I am really at is that we're dealing with a statute, but is it fair to call it a law. The court admits it has no jurisdiction over the conduct of the legislature. The Administration does not -- the Executive Branch does not administer this. What we have is a - is a rule of the legislature put into statute. Does that prohibit a future legislature from changing it and does, from a constitutional viewpoint, does it require the governor to endorse a rule change of the legislature? MR. RODEY: I believe it's -- you've expressed the obligation that the people of Alaska place upon you and that is to correct those things in the statutes and elsewhere that you believe are incorrect or inappropriate and, in fact, that - that is - that's the way our country has, you know, has prospered is by correcting past mistakes and by having successive legislatures and congresses, you know, look at bills and this was - was a new approach and I don't think any member of the Seventeen Legislature would - would say that it is a fine polished product. And having been involved and part of being aware of some of the flaws, my only comment is that I regret that it falls upon you to correct some of the work that has been done in the past that appears to be flawed. REPRESENTATIVE VEZEY: Well thank you. I appreciate your comments. I was really just curious what your thoughts were. CHAIRMAN KOTT: We did stray a little bit, far off course. Number 1744 REPRESENTATIVE ELTON: To follow up on Representative Vezey's question, which I find it an intriguing question. Is it your testimony that the Seventeenth Legislature is binding the Twentieth Legislature when this body has the ability to accept or reject any sanction recommended by the Ethics Committee. MR. RODEY: No sir, I would - would never make that assertion. My reference was only to the fact that by enacting a statute the - a previous legislature does in a fashion of course influence conduct. REPRESENTATIVE ELTON: So, let me make sure I'm - I'm especially clear on this point because I think it's a very important point. You're not saying that there is a possible constitutional conflict because this legislature, this body, in this house of this legislature is bound by the Seventeenth Legislature's enactment of this ethics statute? MR. RODEY: I do not believe there is, no. REPRESENTATIVE ELTON: Thank you. CHAIRMAN KOTT: Further questions for Mr. Rodey? Speaker Phillips. Number 1790 REPRESENTATIVE PHILLIPS: Thank you Mr. Chairman. Mr. Rodey, I want to get back to your statements on the issue of mailing list and that subject specifically. Now you're saying that the word -- that there is no language in the statutes or definition in the statutes for the phrase "mailing list." That is not something that can be classified as a government entity, a nongovernment entity. Can you get into a little more discussion on that please? MR. RODEY: I'm at a loss to - to determine precisely when that phrase was - was inserted and I will - I will be able to tell you once the archives provide the committee reports. Hopefully, it was in all probability the product of a conceptual amendment that was then drafted by Legislative Council and it was -- there's many (indisc.) in that, which does happen because everyone in this committee knows that the way mailing lists are handled is not the way it's set out in the statute. That the (indisc.--coughing) statute really does - does not provide a correct statement of the facts and doesn't provide proper guidance for a legislator or for the public. REPRESENTATIVE PHILLIPS: Thank you. CHAIRMAN KOTT: Further questions? Representative Elton. Number 1867 REPRESENTATIVE ELTON: Thanks Mr. Chair, and through the Chair, Mr. Rodey, I -- while we have you here I think maybe we should take advantage of your expertise and I don't have the statutes in front of me, but I'd like to refer to you AS 24.60.030, subparagraph (b), which talks about proscribed political activities. Perhaps you could discuss the legislative history on - on what the Seventeenth legislature made may have meant of subparagraph. CHAIRMAN KOTT: Representative Elton would you cite the a... REPRESENTATIVE ELTON: 24.60.030, and I think it -- I don't have it in front of me, but I think it's subparagraph (b). MR. RODEY: ...b, there, you're talking about the - the exception where it says "this paragraph does not prohibit" and then goes on to... REPRESENTATIVE ELTON: No. I'm talking about -- I'm talking about the subparagraph that - that - that - that - that says the legislative staff are not allowed to engage in political activities and legislators are - are not allowed to require their staff.... REPRESENTATIVE BRIAN PORTER: Yeah, it's the -- do you want me to read it? REPRESENTATIVE ELTON: That would be helpful to me. REPRESENTATIVE PORTER: "A legislative employee may not on government time assist in political party or candidate activities, campaigning, or fund raising. A legislator may not require an employee to perform an act in violation of this subsection." Number 1936 REPRESENTATIVE ELTON: The question again, through the chair, was perhaps you could clarify what the legislative history of that section was. REPRESENTATIVE PHILLIPS: Mr. Chairman, before Mr. Rodey answers that I would like to raise a point of order on that in that just for the record Representative Elton, that has nothing to do with the - with the - the - the issue before us which is the case against Representative Sanders. I'm not going to - to disallow it, whatsoever, but this is the second time your comments have been brought up that are not in reference to the case in front of us, just as a matter of point of record. REPRESENTATIVE ELTON: If I could speak to the point of order. I mean I think when we try to define "nongovernment" and "political," we need to - we need to take a look at other portions of the statute that use similar language, but I appreciate your not pursuing it Speaker Phillips. Number 1974 MR. RODEY: Very briefly, the - the discussion of Senate Judiciary was the members - the members were aware of what improper conduct was and they were - were also aware that a very small item would occur, many times by accident, in fact most times by accident, some postage or some - some use that is diminimous and the - the (indisc.--coughing) was to define the difference between an ethical violation of substance and one that - that was, you know, a very very minor violation and one that, you know, had no - no great impact to it and that -- and I read you the - the language that was in the Senate bill and that - that was the Senate's - the Senate's approach which I think fairly, you know, fairly states the - the difference, what a legislator can do. It sets forth how they can contact their constituents and it leaves nothing to guess work. REPRESENTATIVE ELTON: Thank you Mr. Chairman. Number 2044 CHAIRMAN KOTT: Further questions for Mr. Rodey. Seeing none, thank you very much for your testimony. MR. RODEY: Thank you Mr. Chairman. CHAIRMAN KOTT: Representative Porter. Number 2053 REPRESENTATIVE PORTER: Is this the portion, Mr. Chairman, that you would us to kind of to give our individual thoughts about where we are and what we're faced with or.... CHAIRMAN KOTT: I think at this point, that's where we're - where we are at in the process. We have no one else to come before this committee to offer anything else. It is up to the committee now to look at the last night's testimony and come up with a conclusion of findings, statement of fact and recommendations. So we will now open the committee up for testimony regarding the ethics charges 96-02. Representative Porter. REPRESENTATIVE PORTER: Well I don't mind being the fool that rushes in. It would appear to me that there are two general issues in front of the committee. Obviously what's in front of the committee is our acceptance, rejectance (ph) or modification of the sanctions which requires, I think, to look back at the charges and so we have, I guess, in front of us a requirement to give our assessment of the charges, the merits of the charges and then probably the next one in my mind is the cooperation issue of Representative Sanders with the Ethics Committee. And quite frankly, these two things present to me, having some familiarity with the statute, having been on the committee for two years, a bit of a dilemma. I guess the oversimplification of my position on this is that I can understand having been in their shoes the progression of logic as opposed to case law that lead to the decision that these charges have merit and that the interpretations that they furnish in their opinion are a natural, logical interpretation of the statute. Unfortunately, I disagree with every one of them. Had I been on the committee, I would have argued vehemently against each and every one of the positions that they took on interpreting those statutes. On the other hand, we have the statutory requirement, and I think it was mentioned during testimony either yesterday or the day before that isn't it unusual to be considering a, in this case, legislator's cooperation with the process when the normal kind of litigation experiences that, that's the way it works to be extraporous (ph) and delaying and those kinds of things. It does if you're in a court of law, especially in a criminal case. Obviously, the court cannot consider the cooperation of a defendant. It isn't within his requirement to have to cooperate, but in our situation the statute that we are faced with specifically directs the Ethics Committee and I think then by implication to us to consider the cooperation of employees and anyone charged under this specific piece of legislation. And in that case then having listened to Representative Sanders, I sincerely wished that he would have put his concerns in front of that committee because I think it would have mitigated completely, if for not completely, perhaps, but mitigated substantially the ultimate decisions and recommendations of the committee. So while I understand how the Representative facing the facts that he explained to us from his perception of those facts, having a concern as I can't agree with the committee's opinion of their interpretation of the statute, I can't agree with his logic and inferring from those facts that he was up against a stacked deck. So I guess I could speak more to those issues and explain, if anybody is interested, why I don't think these charges amount to what they have concluded. But that's basically where I'm at and if anybody can help me with it, I'd be happy. Number 2264 CHAIRMAN KOTT: I think you basically have started the process rolling in addressing some of the issues that have been brought up over the last couple of days regarding the charges, the alleged charges. Certainly, I think the main core of much the discussion that has taken over the last 48 hours or so was whether or not this mailing was for a governmental or nongovernmental purpose. I think that maybe a good point to essentially start and I think that's the direction you were perhaps heading. Representative Vezey. REPRESENTATIVE VEZEY: Thank you Mr. Chairman. I will repeat a lot of things that Representative Porter said. I would just say that I really concur with - with his summary. I - I think that the Ethics Committee used reasoning and good logic to come up with a logical conclusion based on the information before them. I think it's very regrettable that we have not given them better guidelines that would enable them to have gotten to a similar point without spending $24,000. I think they exercised much too much due process. I disagree with their - their conclusions for numerous reasons, I think I stated most of them yesterday and Representative Porter stated them very well a few minutes ago. But I do think that it's not actually before us, but I do think that Representative Sanders was very much amiss, remiss in not cooperating, maybe not fully, but to a much greater extent than he did with the committee. It -- had more information been brought before the committee, it's very likely we would not be here today. TAPE 97-5, SIDE B Number 006 REPRESENTATIVE PHILLIPS: Thank you, Mr. Chairman. I'm going to pass something out to everybody that I think kind of gets to the crux of what we are dealing with here, and this is the definition of what is governmental and nongovernmental. And this is a copy of House Bill 298, dated 4/24/91, in which a group of legislators authored an act establishing a president - presidential primary polling election. Number 028 CHAIRMAN KOTT: And for the record, would you label this Exhibit F. Number 032 REPRESENTATIVE PHILLIPS: Be glad to provide a copy for you guys. But in getting to the definition of whether or not a thank you letter for somebody (indisc.) - a thank you letter to constituents that have presided in and taken part of a presidential poll being not a government issue, and yet a legislative bill introduced in 1991, which was very clearly a governmental issue, very, very clearly. If you will look at the sponsorship of this bill, it was sponsored by Republicans and Democrats both. They felt a presidential primary poll election was a very proper governmental thing to do. And I think that begs the whole question of what we're dealing with today. This group of legislators felt very strongly, and I am proud to say I am one of the sponsors of this piece, with my fellow Democrat people that also sponsored it. Representative Ulmer at the time, our lieutenant governor, was the chief sponsor of this bill, thinking that this was a very - very definitely something that the legislature could do. So I think when we look at -- was this issue wrong? The issue of thanking constituents for taking part in a presidential primary poll? I don't know. I certainly didn't think it was wrong when my name went on as a cosponsor on this bill. CHAIRMAN KOTT: Representative Elton? Number 090 REPRESENTATIVE ELTON: Thanks, Mr. Chair. It's sometimes difficult, I think, to reconstruct arguments that we think may have happened behind closed doors. And - and - and I don't purport to do this. I think it's also sometimes difficult if we look back and think about all the dumb things we've done and I mean, what happens to us when we do something dumb? And - and - and I think there's an element of dumbness here and please, it's not -- I'm not speaking about one of us. I mean I think I'm speaking about probably a body of 60 in which we've all done something dumb. I want to begin by saying that I think that the difference, perhaps, in my mind, that between - between this and - and a letter that thanks participants in a Republican straw poll, is I would - I would define legislation that is put before either body that creates a presidential primary an issue of legislative business. And - and I guess that -- and I feel awkward trying to make an argument for another body, for the Legislative Ethics Committee. But I think that the argument that they may have made is that this was before the body, was being debated in committees of the body, and got to the floor of the body, and that makes it an issue of public interest and public importance. I think what the committee found in the instance that's before us is that there was a political activity that happened outside the body and - and that a - an issue that - that they -- I -- they may have even used this term of kind of party-building, and - and - and I think there is a difference between government (indisc. -- coughing) issues. I don't think, for example, that I would classify a political convention nor a - a straw poll as a governmental function, clearly a - a - a party function. I think perhaps one of the other things that may have been argued by the committee is - is that a mitigating circumstance would have been if - if this were a normal practice that you also sent letters of congratulations and support and thanks to people who participated in the primary, either as Republicans or Democrats or undecideds or undeclareds or Greens or - or whatever. But -- and - and - and clearly, I think the committee may have considered it a mitigating factor if - if that kind of activity had happened before. I mean, I think the issue that was before the committee - and - and a difficult issue for the committee to decide - was: Did - did this happen in something that was exclusively a party and is this the only thing that happened? Did this, I mean, were letters of thank you written to Democrats who voted in the primary? I - I'd - I would guess I would be surprised. I certainly wouldn't have written letters of thanks to Republicans who participated in the primary unless I was also writing to... So I - I - I think - I think that is the issue that was in front of the committee. I - I think another and more difficult issue that's before this committee is - is - is the issue of perception, that - I know that of us have struggled with, and - and that is the perception -- I think the evolution of the Ethics Committee process has been to include more public members. And - and - and if - if we impose our judgment over the judgment of the Ethics Committee -- I mean, we're not only back to pre-1992, when there were an equal number of legislators and public members. We're not only going back to 19 - pre-1986, in which there was one public member and the rest were (indisc.--papers shuffling) members. We're going back to pre-1983, when there were no public members. And - and that's a perception that I - I think we struggle with. And in the lack of clear and convincing evidence that we found the judgment of the Ethics Committee flawed, I think we really have no choice other than to sustain the judgment of the Ethics Committee. And I know that's a difficult decision for all of us. And I know that we don't have the luxury that the Ethics Committee had in debating this in private behind closed doors and taking votes. This is going to be a very difficult vote for all of us. And unfortunately, it's a much more politicized vote than I think it otherwise would have been. I want to speak just briefly, then I'll - I'll close for now, to the other point that was made by Representative Porter, who I (indisc. -- coughing) brings a lot to this process because of his involvement with the Ethics Committee previously, and that is the issue of cooperation. And I think two decisions were made that - that - that made me uncomfortable as I read the transcripts. And that - and - and - and the first decision that made me uncomfortable is that we'd even gotten to that point. I mean, I don't think any of us is happy about the amount of money that has been spent on this. And so I'm uncomfortable that we got to that point. I'm uncomfortable that - that when the opportunity came, that - that both sides weren't heard. And - and I think that gets to the element of cooperation. And I think that if we do in fact find that the Ethics Committee decision on - on the - on the guilt issue and the sanction issue was fatally flawed, I think that we then need to go to the element of cooperation, and I think that presents another difficult decision for this body because - because clearly, I think, in almost definition or - it would be hard to say that there wasn't a very strong of uncooperation. And - and with that, then, I'll close for now. I don't envy any of us for the decisions that we're going to have to make. It's very difficult. I would just urge caution if we overturn the decision of the public body. CHAIRMAN KOTT: Speaker Phillips. Number 388 REPRESENTATIVE PHILLIPS: Thank you Mr. Chairman. Representative Elton, I have a question that I just want to clarify in my mind on what you just said. Your statement is, if we propose our judgment over the decision of the Ethics Committee, that this is wrong. In a case -- it -- and that's what I understood you to say. My -- and my question to you in a case of law, a person has a right of appeal. Are you saying that because the decision by the Ethics Committee, which is made up by a majority of members of the public - once a decision is made by the Ethics Committee - that it -- the person doesn't have a right of appeal, has no recourse of appeal anymore? Because that's what I understand you to be saying. Number 419 REPRESENTATIVE ELTON: I'll try to be brief. I think it's a fair question, and I - and I hope if I left that impression, I - I appreciate you giving me an opportunity to clear it up. I'm clearly, no, I - I don't think that anybody envisioned in - in the past that the House, itself, not be the final determinant of any sanction that is recommended by the body. Clearly that's -- only can be a decision that's made by, in this case, members of the House. And - and - and as Representative Vezey pointed out, it's a constitutional issue. I guess what makes me uncomfortable is that in almost every administrative process that I'm familiar with, and being a non-attorney, this -- my familiarity with the civil and the criminal issues - generally, what happens under an appeal is you hear it, and I'm probably not using the correct terminology here, but on the record. New evidence is not allowed further on in the appeal process, and the reason for that is obvious. I mean, what - what -- if you have embarrassing evidence, you might not want to use it at the first level of hearing if you can bring it in at the second level of hearing if you need it. And so I guess that is what bothers me the most, is that we're hearing new evidence, which kind of goes against my grain. Number 485 REPRESENTATIVE PHILLIPS. If I could just follow up. Your statement was, if we propose our judgment over the decision of the Ethics Committee, this is wrong. And I don't - I - I don't understand what you just said. I understand the -- your inference that because there was evidence presented to us that wasn't presented to the Ethics Committee, that causes you a concern. I understand that. But I don't understand why you would propose that whatever judgment we make here, with the evidence that we have presented to us, would be considered wrong. Number 506 REPRESENTATIVE ELTON: Speaker Phillips, I - I'm - I apologize for not being more clear and to your point. I'm not saying we can't impose it. I'm not saying we shouldn't have the opportunity to impose it. I'm just saying if we do, we are - are taking a - a step that I'm very uncomfortable with. CHAIRMAN KOTT: Representative Porter? Number 522 REPRESENTATIVE PORTER: Thank you, Mr. Chairman. Recognizing that we have had a better opportunity to examine all the facts than the Ethics Committee, to me as you noted, is the -- the criminal case where an actual sanction had been imposed, not recommended, the appeal process does not properly allow new information. I don't think that our process disallows new information. I think that when we are asked to review their recommendations and make up our own mind, we are not precluded from obtaining as much information as we can have. But I think to the charges, I'm not -- I don't think that I'm even utilizing anything that we learned from Representative Sanders that admittedly was not in front of the Ethics Committee. Going through the three charges, if I may, Mr. Chairman, the first one - and I'll leave out the - what I would assume not to be the relevant portions of the statute - but Representative is charged with using public funds for a nongovernmental purpose. The - the public funds were the funds from his office account. Now, they have indicated that the use of those funds would have been okay if he would have taken the office account as income and paid taxes, as opposed to using the office account as a draw down from LAA. So for a decision based on an IRS concern, a personal concern, we have an ethics violation in one case and a - and it wouldn't have been an ethics violation in another. I just don't think that's appropriate interpretation, not to mention the ambiguity of nongovernmental. We heard their logic of how they got from nongovernmental to political party, but I submit political party isn't in this section of the law. It is, as a matter of fact, in the second charge and in the second portion of the law that they reference. They did, by the way, in the first charge, recognize that this letter was part of a mass mailing but then didn't recognize the somewhat inconsistent provision that mass mailings may not be made within 60 days, I think it was, of an election, which somewhat presumes that, I guess, they can outside of that envelope, but they're saying "except in this situation." But in the - in the second charge, the - the statute that they're utilizing there is the one that does preclude employees from participating in - if I can find the specific reference, "The purpose of political fund raising or campaigning." The -- they found that there was not political fund raising involved, but there was - was for the purpose of political campaigning. I guess to me it's -- if this interpretation were to stand, it's my firm belief that we could be logically accused of political campaigning with virtually every letter we write. There was nothing in that letter that said, "I'm running for office; vote for me." There wasn't a campaign brochure. None of the kinds of things that I don't think we'd be here debating if it was clearly a campaign related publication. As a matter of fact, they're saying that's a -- the staff to Representative Sanders that typed this participated in a - - in an - a partisan political activity. I'm sorry. I can't - I can't agree with that either. They wrote a letter about a partisan political activity, but they didn't participate in it. The third one was -- that was the third one, as a matter of fact, that I just discussed. Yeah, their conclusion was that that was - in the third (indisc.) second one - that it was for the purposes of political campaigning, and that there was this peripheral campaign good will based into that letter, that it wasn't fund raising but it was campaign good will. And I -- you have to interpret statutes so as to give them meaning, and the only meaning I can get out of that is that everything that we do is for campaign good will. And I'm just not ready to accept it. CHAIRMAN KOTT: Representative Williams. Number 758 REPRESENTATIVE BILL WILLIAMS: I was going to talk a little bit about the - the committee process that we have here. I think that it was brought -- we - we are going according to the - the law today as far as we've brought it before the legislature. The legislature told us to take this back to committee to find out -- get more information. So I think we are on the right track as far as going against the -- if we couldn't have listened to Representative Sanders and brought that information to us, I mean that was the whole reason for having this - this meeting. So I think that we are right in - in the process of it. I think the lack of clear and convincing evidence throughout the whole process, the - the law that is not clear and convincing. The timing of the - of the meetings, this being a political year, had this been this year, and as there was no election, we don't know the comments made by the representative from Juneau, here, saying that we didn't know how they - the Ethics Committee voted or felt or talked about behind closed doors. I think we have a pretty good feeling about what Representative Sanders felt during his campaign. And with something like this over your head, so to speak, along with the campaign, this is very difficult to think clearly. I think the cooperation in this -- I agree that there was no cooperation, but I think we should also find out what we are dealing with also. Is it a political campaign that we're dealing with? Everybody here that ran for office had some sort of feeling that a certain party was campaigning against them. And they were going to make it a little more difficult for them to get into office, however, it may be. And I'm not going to say that anybody was doing that. I -- what I'm saying is that it was there. We played the "what if game" yesterday. What if there was this undercurrent (indisc. -- papers shuffling) of political pressure being put on the - on the committee. What if it was done. I -- I'm not saying it was, but we're also - we also don't know what the Ethics Committee was doing. I -- but we have a very good feeling for what -- how Jerry felt - Representative Sanders felt. So I think the cooperation is there. There's a problem there that we have to deal with. I don't think that the sanctions that they've brought, by the committee, is correct. I think we have - and I'm not in a position right now to say what we should be doing - maybe -- I - I don't know. I'm - I'm not that far down the road yet. Thank you, Mr. Chairman. Number 975 CHAIRMAN KOTT: Thank you, Representative Williams. I think there's been quite a bit said already, based on government versus nongovernmental issues. Certainly it is a problem, but since you have at least opened up Pandora's Box and spoken, at least indirectly, about the process, I do want to at least make one comment at this point. You know - and it was brought out by Representative Elton, I think, early on, and when he asked a question of Mr. Rodey - and that it's -- that's the public membership versus the legislative membership. I think that a lot of this discussion, regardless of whether or not Representative Sanders cooperated or pleaded the Fifth or whatever he might have thought was necessary at the time, I think a lot of this would have been prevented if we had good representation. I'm talking about full representation by our two members that we have selected as well. I think that's important. And we heard this from Susie -- Margie yesterday. She says she can't compel membership attendance, but certainly the lack thereof does this body and the legislature in general absolutely no good. And I think for future reference, we should encourage every one of our members to ensure that they make every attempt to attend these meetings, because I'm firmly a believer now that, based on at least some of the comments that seems to be circulating around the table, that this could have been avoided at the very early stages just with the basic understanding and helpful definition of some of the terms that have been discussed here this evening. I'll reserve further comments. Representative Nicholia. Number 1080 REPRESENTATIVE NICHOLIA: I guess I -- you know, we've been talking a lot about process here tonight. We've been talking about the Ethics Committee process on ethics laws and one - one thing that we should probably keep in mind for the future is that the person in question, the one that's in front of the Ethics Committee, should be there in person. That was probably another problem was that it was on teleconference. And I don't think that - that the members of the Ethics Committee on November 14th and 15th was biased. You know, we do have three Republicans, two Democrats and one non- partisan. Even though we did have among us a - a legislator member, there was a Republican legislator there. And I - I don't doubt for a moment that they knew what they -- that they knew - they knew exactly what they were doing. They knew what they had in front of them. They had their own interpretations of what they had in front of them. And I think, with what they had to work with, they did a - a good job. I wouldn't doubt what they were thinking or how they interpreted the law. I think that - that we're putting what they have done on trial here today and I don't think that's right. I don't think that this is really the forum for that. I think if we're going to talk about changes or problems that we have with the law, that should be done in another forum. I think what we should discuss today is whether we're going forward with the sanctions or are we going to modify the sanctions? I think that's where we should be. I don't think we should be discussing anything but that. It seems to me that's what we're here for. Number 1170 CHAIRMAN KOTT: I agree with most of what you said. I disagree that at this point we should be addressing the sanctions because we haven't determined yet, at least as I'm hearing it, whether or not a violation has occurred. And at that point, then, we should then further our discussion on sanctions for either the violation or the willing cooperation of the -- of Representative Sanders. Number 1195 REPRESENTATIVE ELTON: I - I appreciate the comments that the chair made previous to Representative Nicholia's and I - I - I can tell you I think that I probably had to listen to them more closely than others, and - and I can tell you that I did listen to them and I - I'm not -- I can tell you after this process I'm not anxious to attend those meetings, but I - I - I will - I will do it, especially after your admonition. I also want to say something about - and I'm tempted to say "my good friend Cynthia Toohey," but unfortunately I only knew her for two years, and when I knew her, I can tell you that she spent more time nipping at my heels and - and telling me what I ought to be doing, and I didn't maybe spend enough time listening to her, but I do want to address the question of one member of the legislature being there rather than two, and I think it is unfortunate that maybe two weren't there. The other side of that coin is, I don't -- I hope -- nobody who is watching this on Gavel-to-Gavel would ever understand that I wouldn't have the complete confidence. If only one person is going to be there, I'm glad it was Cynthia Toohey, because I don't think she would have been railroaded, and I - and I don't want anybody that's watching this process to think that she couldn't represent us any differently than she treated me as a freshman in this body. I mean, she was on me all the time. Sometimes I agreed with her and sometimes I didn't, but I always knew exactly what she was thinking and I have a feeling so did the committee. Number 1285 CHAIRMAN KOTT: Yeah, and I'm not, certainly, suggesting that Representative Toohey did not do a formidable job. I wasn't there. I can't tell you, and I, you know, from my relationship with her in the past, I think she'd probably -- she's pretty boisterous and she's - she don't go out of her way too often not to make a point, and she generally stays in front and leads the charge. And my only thought - and certainly the other member that was not there on behalf of this matter clearly had justifiable reasons - I don't want anyone out there in TV land to think that he was just avoiding it either, because he certainly had some other commitments. And that's basically the process at some point we're going to have to address. And we talked about making arrangements and fitting schedules. But I think when we look at the scheduling of these particular hearings, we need to ensure that all members are in attendance, like we have done here this evening. I think this is such an important issue, we have scheduled this in the evening so that all of us could be here. I know the press hate me, but that's the way it is. REPRESENTATIVE PHILLIPS: Mr. Chairman? CHAIRMAN KOTT: Representative Phillips. Number 1355 REPRESENTATIVE PHILLIPS: On that point, and the comments made by Representative Elton too, and your comments previously, I've been thinking about that all night, on the - the issue of the legislative representatives on this and the difficulty that the committee ran into trying to get everybody's schedule, waiting for our legislative schedule. And maybe as we look at revisions to the law, we would consider the - the legislative representatives on this committee being past legislators, not standing legislators. That may be something we take into consideration as we go, you know, as we look at the revisions that come up. Maybe we would not have some of the problems we have. REPRESENTATIVE ELTON: I - I would second that. Number 1398 CHAIRMAN KOTT: Well, I don't - I don't think you'll find any - anyone of us jumping out of our current position to act in that behalf. Representative Porter. Number 1400 REPRESENTATIVE PORTER: I don't think I'd want to retire. I might get nailed with that job. I agree with Representative Nicholia that - that - you know, we can talk about this a whole bunch, but when push comes to shove, we're going to have to face the issue of: Do we think that we're going to accept or reject or modify the sanctions? And - and I guess speaking to that, I recognize we're not going to try to outline any or make up our mind tonight whether we're going to have none or some or all or whatever, but I guess speaking to that, so that the document we have will have some guidance at least from one member, I think it -- that the violations fall into the allegations and then the cooperation, and I just can't agree with their conclusion on the violations, so as far as I'm concerned, I - I can't -- I wouldn't recommend sanctions for those violations. To the - to the requirement of considering, as the statute requires cooperation, I wouldn't think that I would subscribe to the list that they have because, of course, those were based on their opinion of the charges, but I think that there's an issue of cooperation. I would probably consider mitigated sanctions of some kind. But just to that point, I think -- I'll say one thing and then I'll be quiet. I asked Representative Sanders the last question last night at 9 or whenever the heck we quit - or night before last, I guess it was - where he was from and I did that for a reason. We used to have an informal policy in the agency that I used to work for and with. When an officer made a traffic stop, and I don't know if this is still going on or not, we would periodically get with the driver's license from Illinois or New York or something, a folded up piece of U.S. currency. And if it was that this individual had just recently arrived from Illinois or New York or several other communities, that person thought that they were doing what normal process in traffic law enforcement was. We gave those people a break. We politely gave their money back, said, "This is not Chicago. As a matter of fact, you've just committed a crime. Your name is going to go on a list, and if you ever do it again, you're going to jail." And if anybody with an Alaskan driver's license, that lived here, tried that, they went to jail. I think Jerry's lived here long enough not to think as poorly of the people involved and the facts that he was presented with that his conclusion should have been tempered by the length of time that he'd been in Alaska. But sometimes things that you learn early are hard to get rid of. So I guess that's the basis for my saying that I understand his position. I just don't agree with it and don't think it would be our - in our best interest to overlook it. CHAIRMAN KOTT: Representative Elton. Number 1641 REPRESENTATIVE ELTON: Thanks -- I mean, I think many of us were wondering exactly why that question had been asked. And I guess my response is I think a lot of Representative Sanders -- and I don't -- I think he also testified that he'd been here for 25 years, and I really don't think it would take 25 years for Representative Sanders to learn the Alaskan way. If I can continue, I -- Mr. Chair, I - I mean, I think that what we're doing is we're sidling down a path here and I think that I can see perhaps -- or I'm beginning to clarify what path we might be sidling down. I think it may be much cleaner for this committee to consider a motion that I'm prepared to make now and that motion, so that we can - we can clarify where we're going and how we're going to do it, that motion is that we forward to the full body H96-02 with recommended sanctions. And if I could speak briefly to the motion. CHAIRMAN KOTT: There is a motion before us to forward to the body sanctions regarding H96-02. REPRESENTATIVE ELTON: The decision and the sanctions. CHAIRMAN KOTT: The decision and the sanctions. Is there objection? Number 1726 REPRESENTATIVE VEZEY: Object. REPRESENTATIVE PHILLIPS: Object. CHAIRMAN KOTT: There is objections. Please speak to your motion. Number 1740 REPRESENTATIVE ELTON: Mr. Chair, I - I mean, I -- I'm going to try and be relatively brief here. A, do I think that the - the charges that were brought against Representative Sanders were serious? No. I mean, I - I don't. I think that all of us have sat and thought, "Would we have done the same thing?" And many of us may have decided that perhaps we would have. But - but I do agree with the finding by the Ethics Committee that there was a violation, and it wasn't a serious violation. I think that the job that the Ethics Committee had was a very difficult job. I mean, if they - if - if they found yes, the - the allegation was justified, then they had to come up with sanctions. And - and I think that it would have been very difficult to divorce the issue of cooperation and - and how much we've spent and how complicated it's gotten and - and - and where we've gotten to. But - but I think that they made a good-faith finding that there had been a violation. And -- but I think they would be as quick to acknowledge as many of us might be that it wasn't a serious -- I mean, it wasn't all that serious. I don't think this - I - I want to move now to the sanctions portion. I don't think the sanctions are all that serious. I mean, I - I went - I went down the list, and quite frankly, I mean, the sanctions are something that I live with as a member of the minority. I mean, I'm not chair of a committee. And I think I've never taken advantage of this, but I think I've - I've never travelled outside the state of Alaska, so I keep thinking, now what would happen if - if I had done this and this was the sanction? I - I guess I'd say, "Hey, I can live with this; this isn't too bad." I - I - I am living with it. And - and so I think the sanctions probably fit the degree of the violation here because I don't see the sanctions as - as all that difficult to live with. And - and so in wrap-up, I guess I'd just recommend that we can set aside a lot of the heartburn if we accept that the - the decision made by the Ethics Committee was a reasonable decision, a difficult decision, one made perhaps much more difficult than it should have been, but I -- I mean, I've not heard anything that makes me think it was a fatally flawed decision. And I - and I don't see anything in the recommended sanctions that go much beyond. (Indisc.) think the sanctions are all that bad. With that, Mr. Chair, I'm done speaking to the motion. Number 1954 CHAIRMAN KOTT: Thank you, Representative Elton. Your motion essentially would establish that there was a violation and the sanctions imposed were justifiable based on the violation occurring. And I don't think that this committee, at this point, has concluded, at least from what I'm hearing, I may be wrong, that there was a violation. I heard Representative Porter suggest that he's looked over the issues in detail, and he's had the privy of sitting on that committee in the past. And based on his testimony or comments, he suggested that there were no violations. Therefore, that motion, the second portion of it, would probably not be applicable. I also tend to agree with Representative Porter, in addressing all the issues that we've heard over the last couple of days. I've been really struggling with this one, but I'm asking myself over and over: Was - was the mailing for a nongovernmental purpose? And I think that it really gets to the heart of the whole issue of our expression of thanks to our constituents. We do it on a consistent basis. I have sent letters of thanks using stationery to probably one of you when you were re- elected or elected for the first - first time. Not thanking you for getting elected but congratulating you. You know, that's just something that comes, I believe, in the normal course of our daily activity, and that is thanking people. I mean, we often hear from our constituents, all the time, "I'm not gonna vote. I'm not gonna take part. It just doesn't matter. I don't get any appreciation." Well, this is an opportunity that was taken that expressed some gratitude and some appreciation for taking part, and I'm not so sure, a real sanctioned political event. Now, let me get to that. It's my understanding that one of the individuals who received this letter was not a Republican. Now this is -- of course, we've been through this to some degree. The person registered as a Republican to attend the caucus, that straw poll, and shortly thereafter changed his registration back. So in essence, was he a true Republican or was he of another party affiliation? So getting to that issue, you know, it's really a - a more broad-based issue of whether or not we are dealing with just one political party or just a label. You know, is it just a label that we're dealing with or is it actually a political party persuasion, if you will, or personality? And I don't think in this particular case that you can argue that this was in fact a political arena, and certainly, as I agreed with Representative Porter, the letter was to someone who took part in it. And we're just thanking them for taking the time to participate, which I think that encouragement certainly goes a long ways towards benefitting our neighborhoods and society in general. Representative Nicholia. Number 2235 REPRESENTATIVE NICHOLIA: Mr. Chairman I - I disagree. I know, and from the record, it states that the letter was written on March 4th, 1996, when we were in session, before our re-election, and that it was only sent to Republicans, and that it says in there, "my fellow Republican" in the letter. It doesn't say, "my fellow Republican and my fellow Democrat" or anything like that, you know, it just says specifically "to my fellow Republicans" and speaks about a presidential poll. In my mind, that seems to be a violation, and - and - and to speak on the motion before us, there is a motion and I second it. And - and if you don't like the motion, then why - why don't we just vote on it, vote it down or vote it up? Number 2305 CHAIRMAN KOTT: Representative Nicholia, you've been around long enough to know that we are addressing the objection that was raised, and that's the purpose of this discussion. Is there further discussion on the motion? Objections still maintained? REPRESENTATIVE VEZEY: Yes. CHAIRMAN KOTT: Committee secretary, please call the roll. TAPE 97-6, SIDE A Number 001 JAMIE FOLEY, COMMITTEE SECRETARY, HOUSE RECORDS, ALASKA STATE LEGISLATURE: Why don't we start it over? CHAIRMAN KOTT: Okay, would the committee secretary, again, please call the roll. MS. FOLEY: Okay, Representative Vezey. REPRESENTATIVE VEZEY: No. MS. FOLEY: Representative Phillips. REPRESENTATIVE PHILLIPS: No. MS. FOLEY: Representative Porter. REPRESENTATIVE PORTER: No. MS. FOLEY: Representative Williams. REPRESENTATIVE WILLIAMS: No. MS. FOLEY: Representative Elton. REPRESENTATIVE ELTON: Yes. MS. FOLEY: Representative Nicholia. REPRESENTATIVE NICHOLIA: Yes. MS. FOLEY: Chairman Kott. CHAIRMAN KOTT: No. So the motion fails which brings the matter back before the entire committee. Is there further discussion on the matter? Representative Phillips. Number 106 REPRESENTATIVE PHILLIPS: Thank you Mr. Chairman. I think you've pretty much - pretty well outlined the next process or the next part of the steps and that is to take all the concerns that have been expressed here tonight. One of the things that I have not put on record tonight because -- and in the essence of not clouding the issue on this particular case that's before us, but in the discussion the last three nights on this particular case, I have three pages of notes and areas in the current legislative ethics law that I think we need to address. I'm not going to put those on the record tonight, I don't think that we need to do that, but just -- there's so many questions that have come up in the last three days that I know that we will be spending a lot of time on this in the future. I think your process is right that we take the comments that have been made the last three days, roll them into a document that we can look at possibly Monday. Is that what your considering? Number 170 CHAIRMAN KOTT: Early part of next week. I think your points are well taken. It's my understanding, at least based on the previous motion that was voted down, that at least the majority of this committee does not believe that a violation occurred and if that is not the case please let me know now. So I would like to proceed to the second area regarding the noncooperation or sanctions if there are any in that area. And let me just open it up by suggesting it is tough. The committee probably went through an enormous amount of time and effort for a very minor thing as was indicated I believe in earlier testimony perhaps a lot of this could have been cleared up early on and based on Representative Sander's appearing before the committee. Perhaps not. We heard from him a couple of nights ago that there was substantial amount of apprehension in putting himself before the committee. There is a point in law that's known, at least if I can remember this, that says that if there is no violation then you would adhere to the long standing judicial concept of judicial economy which basically suggests that there's no violation there's no sanctions imposed. Unfortunately, that is not quite the case in this particular event and let me just read from the statute on this, it's coming from 24.60.170(k), and I'll read it: "Following the hearing the committee shall issue a decision stating whether or not the subject of the complaint violated this chapter and explain the reasons for the determination. The committee's decision may also indicate whether the subject cooperated with the committee and its proceedings. If the committee finds a violation or lack of cooperation by the subject, the decision shall recommend what sanctions, if any, the committee believes are appropriate." So, that is something in statute that we at least must address so the term "judicial economy" I suppose goes by the wayside. Having said that, this is one area that is extremely difficult for me and I'm really troubled based on some of the testimony that we heard. I asked Margie whether or not the sanctions imposed were result of Representative Sanders pleading the Fifth. Her response was, "It was not." They were not part of that. It was due to the tedious, extraneous motions or pleadings in my understanding, I may be wrong here - correct me I'm trying to recap here, by his attorney. Well, we do have a attorney/client relationship in this country, whether we like it or not, and not so sure that biding by your attorney's recommendations that in this particular case, non-cooperating is an essential element. I'm just opening this up for the purposes of discussion, I'm not going anywhere with it but certainly it's something we all should at least consider. Representative Porter. Number 473 REPRESENTATIVE PORTER: I - I - I went through that exercise in my head when I reached the conclusion that I just stated that it's very clear if the committee finds a violation or lack of cooperation (indisc.) consider sanctions. I don't think that, as stated I think very appropriately by Margie MacNeille, that the Ethics Committee could afford to make a value judgement on the apparent seriousness of the violation, as opposed to what it might be facing in a (indisc.) based on the ability of a legislator or an employee to throw in delaying tactics that ran up a bill. I think they made the right decision, they don't have that option, they have to follow it through. And, I think that's why considering sanctions for creating that situation is appropriate. Certainly, something that a legislator realizes and that's why I'm prepared to I think not support a position of absolutely no sanctions in this case. CHAIRMAN KOTT: Representative Phillips. Number 569 REPRESENTATIVE PHILLIPS: Thank you Mr. Chairman. On the issue of a violation - of the violation itself I, as other members of the committee do, do not believe a violation occurred, and therefore, I would not support sanctions for a non -- what I do not consider to be a violation. On the issue of lack of cooperation, that gives me trouble. It has caused every one of us trouble. But I understand Representative Sander's feelings on it. I certainly could have put my myself in his place and understood why he took the roll that he did. Probably we need to address the whole issue in two separate in two separate - in two separate categories. I don't know how you sanction somebody for lack of cooperation when that person firmly believes that they were, if put into position where they could not cooperate, nd I think we have to look at that question, whether or not a the person felt that they could not cooperate because of extenuating political circumstances. Number 662 CHAIRMAN KOTT: Well yours seem to be as troubled about this as I am. This is a real - real tough one for me. And I'm not so sure, again, this is not a flaw in the statute suggesting that you may consider if your found innocent of something and legal court of law you are not then charged - brought up on charges again of non- cooperation during that process. That's really overcome by events, the fact that there was no charges or you weren't convicted of the charge initially. But I'm really troubled as to the reason why it's even in there to a large extent, and again based on what I understand of the whole issue, and what is considered normal practice and I'm not sure what that term means, what is normal practice in a court of law. Whether these motions that are filed are delaying tactics, I suppose that you could perceive them to be delaying tactics if your on one side of the coin. If your on the other side, perhaps they would be most appropriate. But, I think, as I look at this, this is maybe not delaying tactics, but perhaps common tactics that are often used in a court of law. Again, I 'm certainly not the expert on judicial process, but from what I understand, that's kind of the way I see it. Speaker Phillips. Number 793 REPRESENTATIVE PHILLIPS: Mr. Chairman, that brings up a very good point, and the point is a constitutional question. If you are found innocent of a charge, can you be found guilty of an action associated with the innocence of your charge? And I think there is a constitutional question there. CHAIRMAN KOTT: Representative Porter. To answer this constitutional problem. Number 817 REPRESENTATIVE PORTER: I think I addressed it but the statute that I just read, clearly to me, requires us to consider the violation allegation and cooperation. This isn't a court of law. This isn't -- our members and our employees don't have the constitutional protections of a criminal defendant as we've recognized the courts don't even want to tell us how proceed in these procedures because we're a separate branch of government and it's not within their purview to delve in. Maybe right about now we'd wish they would and we wouldn't have to make these decisions. But quite frankly to me, it's clear that it is a law that the legislature passed and we are bound to follow it. I don't feel there's any overriding constitutional problems in following the law that says you will consider cooperation. I think it was appropriate for the committee not to use the Fifth Amendment privilege in their determination of lack of cooperation. That doesn't mean that all the other opportunities through the process, before they got into that hearing, that were not taken advantage of by Representative Sanders, didn't present a lack of cooperation. The tactics during the procedure could not, I guess, be considered a lack of cooperation, but I don't think that they hung their hat on all of that. I think they hung their hat on the entire process as it started and ended and, quite frankly, I cannot disagree with their ultimate conclusion. I can understand the Representative's position. I just don't agree with it. I can understand how they reached their conclusions and I don't agree with them. And that brings me right back to where I started so I'll be quiet. Number 957 CHAIRMAN KOTT: Okay, we're going to take a five minute recess. REPRESENTATIVE ELTON: Can I speak to that. CHAIRMAN KOTT: An hour and forty-five minutes -- Representative Elton. Number 960 REPRESENTATIVE ELTON: Just - just to that point. I mean I - I agree completely with Representative Porter. I mean this body alone determines whether or not, or how, or when, or why we sanction people. We can do it because we don't like the way they dress if I understand the latitude that we're given. So - so I mean I agree with Representative Porter. There is absolutely no constitutional issue here that would preclude this body (indisc. -- coughing) considering whatever standard we wanted to apply. Number 995 CHAIRMAN KOTT: Thank you. We'll take a about a five minute recess. [The House Rule Committee went into recess at 7:45 p.m. Chairman Kott called the meeting back to order at 8:10 p.m.] Number 1006 CHAIRMAN KOTT: Where we left off was essentially dealing with the non-cooperation issue, imposing sanctions for that non-cooperation. Had some discussion on the issue and we'll open it again up. Representative Phillips. Number 1019 REPRESENTATIVE PHILLIPS: Thank you Mr. Chairman. I do have one more comment to make and to put on the table on the cooperation issue. And that is that our constitution guarantees us the right to do nothing in our own defense. Nothing. So, I think this very clearly - speaks very clearly to the cooperation or lack there of issue. Lack of cooperation is an issue that the constitution protects us for. The right to do nothing in our own defense. CHAIRMAN KOTT: Representative Vezey. Number 1054 REPRESENTATIVE VEZEY: Thank you Mr. Chairman. I - I do agree that even in this quasi judicial sitting that anyone has a right to remain silent, to not testify against themselves. That doesn't mean, that particularly in this case, that would be a wise course of action. I think that it was back to the contrary in this particular case. I think it was very unwise course of action. I think that Representative Sanders has largely inflicted a lot of these sufferings he has gone through and he expressed with us upon himself because of his poor judgement. And as -- I can speak from personal experience that stupid actions carry their own sanctions. You don't have to punish people for making stupid mistakes. And I would be surprised if Representative Sanders, with all the information that is now before us, would not look back in hindsight and say that he used poor judgement in not being more cooperative with the Ethics Commission. It would have affected the time line of the whole process and it certainly would have had some impact on the outcome. Even if it didn't have some impact on the outcome, it would have brought the matter before this body for consideration under a very different light. CHAIRMAN KOTT: Representative Porter. Number 1142 REPRESENTATIVE PORTER: There's a management course that what (indisc.) a few years back that had us a principle that takes stress off of people that they should realize that there is absolutely nothing that an individual has to do. You don't even have to pay your taxes, but you do have to face the consequences of your own decisions. The constitutional guarantees of not having to mount a defense accrues to criminal defense. That's all. And I think that you certainly have the right to do anything that you want. Also have the burden of facing the realities of those decisions. Number 1206 CHAIRMAN KOTT: I certainly agree with what you said. It's hard to disagree with that. Again, my - my troubles with this whole area is essentially with the legal side of the situation. What does it mean to be non-cooperative? Obviously, by pleading the Fifth that didn't substantiate being uncooperative as we - we heard. The filing of motions or pleadings or the lack there of, does that constitute un-cooperative? I'm not sure. In the statute it says the person charged may file a response of pleading to the committee. "May" is the operative word, or "may not." There's nothing concrete and absolute in that. In the statute it says a person charged may engage in discovery in a manner consistent with the Alaska Rules of Civil Procedure. Again, I asked Margie because she's got the background, I think, quite a bit more than I have, I mean she's (indisc.) that profession. Is this something common or is it uncommon? And I am at a conclusion, based on what she suggested, that perhaps this is a common practice in a court of law. Now I realize were not in a court of law there. But I also realize that when you have competing interests or your in this adversarial relationship, it's the committee against Representative Sanders in this particular case, there may be, I think, from their perspective the mindset that what he's doing or what his attorney is doing, is a delay tactic. And, therefore, in fact, he is obstructing the process or not cooperating. This is where I'm - I'm troubled. This is right where I'm at right now. I'm just bordering this fence. Not really sure if this is a legitimate issue that is being addressed as far as cooperating or not cooperating, or not. Representative Williams. Number 1354 REPRESENTATIVE WILLIAMS: I don't know. I think it's clear that there wasn't any cooperation (indisc.) I think that goes all the way and I'm glad we narrowed it down to that. I think we all understand what may have happened (indisc.). I don't know. I guess we're ready to go down that road of what do we do if anything. Number 1391 CHAIRMAN KOTT: I guess that's where we're at. Where do we go from here? And I probably ought of restate my position. Did Representative Sanders cooperate or not? No. He didn't cooperate. Was it valid non-cooperation? That's what I'm questioning, trying to come to some conclusion with. Representative Elton. Number 1410 REPRESENTATIVE ELTON: Mr. Chair I don't know how to get you out of your dilemma. But I - I'm - I guess I am wondering whose dilemma this is. I mean I think that one of the options that this committee has is to forward to the body the action that has been taken and you can forward to the body the action that has been taken, and you can say this is of concern to the body. And - and I mean whatever decision -- my understanding of the process and maybe somebody can clarify this if I'm wrong, my understanding of the process is that we'll be taking a recommendation to the body. The body will accept, reject, amend, do whatever they want to it. And so I don't know how -- I don't know what this body -- what this committee should do. But I mean one of the things obviously it could decide to do is - is say this was the vote on the motion. This is what the motion addressed, and the body has concerns about the element of cooperation. Number 1481 CHAIRMAN KOTT: Certainly, that is one of the options that we have as a committee. However, I think also as a committee and being charged with responsibility of looking thoroughly at the matter, we shouldn't just shed an enormous part of that responsibility and throw it back on the hands of the members of the body and open it up as a committee of the whole. I think that's one of the reasons why it has been referred to a committee is, hopefully, we can narrow the scope down and provide some kind of direction to the body. Representative Williams. Number 1511 REPRESENTATIVE WILLIAMS: I'll take a stab at it. Going along - going along the lines of what Representative Vezey had said earlier that, you know, that if we put this whole legislature in embarrassing situation, I think -- it certainly affected me personally having to be here for three days at - at -- where I should be at home right now. And I certainly would like to - to see something said and done. I don't know exactly what happened the last two times or if there was cooperation at that time, and what type of cooperation that was happening at that time. But we have, within our legislative laws, definitions of legislative intent that we had to bring in with Mr. Rodey. A lot of the bills -- I - I -- we have something here that I would like to know what the legislative intent was when we brought - brought up this cooperation. I would maybe like to see Representative Sanders research this and I can't say that he should apologize. I don't think it's - it's in that area. But I think to make everything clear for us so that we don't go through this again - see how we can -- no, no I don't know how -- that's something we can look at. Number 1634 CHAIRMAN KOTT: That was a compelling idea Representative Williams. In fact, I was thinking about putting you in charge of the subcommittee to address what non-compliance or non-cooperation means, but I'm sure you wouldn't appreciate - appreciate that. I do think that there is three issues that we still have before us, to a large extent is whether or not there was cooperation or not. I think from what I am hearing most us are of the impression that, yes, there - I - I - you can make the argument that there was non- cooperation. Secondly, it wasn't justifiable. That's what I'm tossing with -- troubled with maybe the rest of you aren't. And, third, if it wasn't justifiable, then what is the penalty for that non-cooperation. And, again, we are treading on new ground in every one of these areas in defining what cooperation is and what it is not, and then certainly the sanctions or sanction or whatever we come up with. Representative Porter. REPRESENTATIVE PORTER: Representative Vezey. CHAIRMAN KOTT: Representative Vezey. Number 1685 REPRESENTATIVE VEZEY: Mr. Chairman, are you ready for a motion? CHAIRMAN KOTT: I think there's further discussion. Representative Porter. Number 1699 REPRESENTATIVE PORTER: To the discussion, I guess I have to comment that the suggestion from Representative Elton -- when I used to work for the city that was called the municipal salute. We all ran saying we were here to make tough decisions and this is probably one of the toughest ones where were going to have to make, and I welcome you to the that position for the next two years. I've been there, done that, and here I am again. But perhaps with a little of that background, in my mind there were no violations of the three allegations that they stated. There was a fourth violation that was a lack of cooperation and I think that's properly something to be considered and sanctions considered for. Looking at the sanctions that they had recommended, I think it is not -- wouldn't be too difficult to separate them from what it appears that they were aiming at the violations and what they were aiming at the lack of cooperation and those that fell out in the lack of cooperation area, I would say we should impose. Those that went to the violations (indisc.) it is the committees conclusion, as it is mine, that those -- the finding that - that was a violation was a reasonable interpretation, but an incorrect one as I feel. And, I don't think we should impose sanctions on something we don't believe was - was a violation. CHAIRMAN KOTT: Representative Nicholia. Number 1781 REPRESENTATIVE NICHOLIA: Just like to say (indisc.) cooperation, Mr. Chairman, and going back to 1995, we got the appointment for the Ethics Committee and then we voted on their confirmation, and then we voted on their confirmation. We also voted with a little trust in - or maybe a little or maybe more - trust in those persons to serve on that committee. And we're - we're not privileged to read the correspondence in this case, we're not privileged to see what they - what they had read. It says here in their findings that upon reviewing the pleadings and correspondence in the case since a probable cause determination, a pattern of delaying and obstructing tactics and feeling a lack of compliance with the hearing officer's orders which constitutes a lack of cooperation which was inappropriate. So, what we did was we gave them that to ponder and to go over and they came back with their recommendations and their interpretations of the ethics law. So I guess what I'm wondering now is are we doubting their reasons for - for writing this and putting it into their findings? You know, just what are we doing? Where are we headed with this? I mean we gave them a job, a difficult job that we all recognize that in our speeches for the past three days. I guess my question now is they had - they had information from that we don't and so the question is are we going to keep on talking about this without that evidence? I guess what we're - what we're doing when we keep discussing this over and over is that we're doubting those members and their decision. And I'm not sure where we're going with this now. Number 1885 CHAIRMAN KOTT: I don't think anyone is doubting what was done. It's basically to understand what was done. Lack of compliance with the hearing officers. I don't know what that means. I'm looking through the case review and having a difficult time, that was provided to us by Ms. MacNeille, determining where that falls and clearly, there's probably a place here. Just having a difficult time in determining it. I think part of the problem, like I mentioned earlier on, is we put the committee members on the Ethics Committee in a very very difficult spot. Certainly not one of envy. When you have two competing parties, you are going to at least perceive that the other is trying to outdo you. Jerry Sanders probably had some feelings towards them and I think clearly on the record yesterday that Ms. MacNeille, in my point of view, addressed almost every concern that I had with the process. She provided us pretty good documents. I think -- in also from their behalf, looking at Representative Sanders and his attorney -- again I'm -- at least I must remind you that he was represented by counsel and under, I suspect, the advice of counsel, they did certain things. Were those things justifiable? Were they in accordance with the rules of procedure? That's really the question. And if they were, then is it in fact unjustifiable non- cooperation? REPRESENTATIVE PORTER: (Indisc. -- coughing) time for a lawyer joke, is it? CHAIRMAN KOTT: A lawyer joke? No, I don't think so. Representative Vezey you did have a motion of -- that you wanted to put on the table for the purpose of discussion. Number 1998 REPRESENTATIVE VEZEY: Thank you Mr. Chairman. I move that we forward to the body our finding that in this matter, we can put the exact numbers in it, that no violation of the Ethics Acts occurred, but that we find that Representative Sanders was guilty of - of being uncooperative. I'm sorry, I shouldn't say -- let me change that motion. That Representative Sanders was uncooperative. If the motion carried why then we would address the issue of sanctions for being uncooperative. REPRESENTATIVE ELTON: I object for the purpose of discussion. CHAIRMAN KOTT: There is a motion before us. There is an objection. Representative Elton please. Number 2022 REPRESENTATIVE ELTON: In - in - in partly, and I think that your probably Representative Vezey working with the language and - and I guess the part of the motion that - that bothers me is -- I guess I would prefer a motion that says we didn't have enough evidence to determine guilt or not guilt on the issue. I - I - I don't know, for me this is more difficult perhaps now. I mean I - I thought the sanctions were appropriate for the action that had occurred, and now we've gone beyond that and were looking at an issue that - that I'm struggling with and I - I don't know whether it's not something that the Speaker, for example, shouldn't deal with alone. I mean why? REPRESENTATIVE PHILLIPS: Right. REPRESENTATIVE ELTON: I - I mean I clearly - clearly whatever sanction occur are within the purview of the full body or within the purview of the Speaker, or the caucus. And - and what we're doing -- I mean we've complicated things by a finding by the majority of the committee on guilt or innocence, and we're now into something, that I doubt if the committee even discussed. I mean the -- my understanding of what the committee did is they didn't make a finding that there was a lack of cooperation, unless I'm -- I thought the three charges that were before us, none of them involved the issue of lack of cooperation. So I am struggling with this. I'm especially struggling with the language in the motion that says the body finds lack -- that there was no guilt. CHAIRMAN KOTT: Representative Porter can you speak to that? Number 2114 REPRESENTATIVE PORTER: The final -- under the recommended sanctions in their report, the final paragraph reads, "the committee and the legislature must take a strong stand when the misuse of public resources occurs. The committee has increased the sanctions recommended because of the prior findings of probable cause of Representatives violated the Ethics Act and because of his lack of cooperation." Number 2134 CHAIRMAN KOTT: Yeah, and that - that was certainly indicated from the testimony that we heard last night. We do have a motion... REPRESENTATIVE PHILLIPS: Can we have it read again? CHAIRMAN KOTT: Could you repeat that motion Representative Vezey. Number 2148 REPRESENTATIVE VEZEY: I doubt I'd get it exactly the same. My motion was that we the Rules Committee find -- forward to the body our finding that in this matter no violation of the Ethics Act occurred but that we do find that Representative Sanders was uncooperative. CHAIRMAN KOTT: Okay. Does everyone understand the motion before us? Representative Nicholia. Number 2166 REPRESENTATIVE NICHOLIA: It's - it's kind of confusing because you find him with a lack of cooperation, but you find him not guilty of a violation. Can you explain what you mean by that? REPRESENTATIVE VEZEY: I doubt it. Number 2183 CHAIRMAN KOTT: I would try to explain it myself except it's a difficult one, other than the fact that in the case itself there were three sections that were identified as having an alleged violation occurring. So there's three areas that they are basically looking at that suggests there was an alleged violation. The non-cooperation issue was not addressed in any one of those sections of law. So that may be some clarification. I don't know if that muddied the waters or helped clarify it, but that's my best guess at it. Further discussion on the motion? Is there still objection? Please, call the role madame secretary. MS. FOLEY: Speaker Phillips. REPRESENTATIVE PHILLIPS: Yes. MS. FOLEY: Representative Porter. REPRESENTATIVE PORTER: Yes. MS. FOLEY: Representative Williams. REPRESENTATIVE WILLIAMS: Yes. MS. FOLEY: Representative Elton. REPRESENTATIVE ELTON: No. MS. FOLEY: Representative Nicholia. REPRESENTATIVE NICHOLIA: No. MS. FOLEY: Representative Vezey. REPRESENTATIVE VEZEY: Yes. MS. FOLEY: Chairman Kott. CHAIRMAN KOTT: Yes. And the motion does carry. Representative Vezey, you want to speak to the second portion... Number 2245 REPRESENTATIVE VEZEY: This brings us down to the question of sanctions, Mr. Chairman. And I - I have not resolved this in my own mind. I -- Your remarks about sanctioning somebody for not cooperating in something that they were not guilty of, is not appropriate, but I - I not -- couldn't entirely satisfactory with that either because I see the Ethics Commission not as a branch of the judiciary, I see it as an arm of the legislature and I see being uncooperative with the Ethics Committee as being uncooperative with our peers. And at the same time I temper that with the fact that if I was in that position, and I have been investigated by this committee, there is some misinformed people that thought I might have violated the Ethics Act at one time or another, and there is a - a - a desire to kind of stay out of that arena. I - I can sympathize with that. You don't -- I would not want to go in and be confrontational with an Ethics Commission. And I would tend to trust that they would get to the facts and that the facts would speak for themselves and they would come to a very reasonable conclusion. Representative Sanders expressed to us that he had concerns that that would not be the case. I don't think those concerns would justified. I'm really just rambling on because I haven't decided in my own mind if I think sanctions are important enough or not. I think that Representative Sanders has been sanctioned indirectly, through his own actions, he has suffered, I think, tremendously as a result of this -- these charges of an ethics violation, and his conduct et cetera. What would be appropriate - appropriate for us to do, and I don't have the answer. I was kind of hoping maybe somebody at the table might be able to enlighten me. CHAIRMAN KOTT: Thank you Representative Vezey. REPRESENTATIVE PORTER: Chairman Solomon what do you think? Number 2340 CHAIRMAN KOTT: I'm kind of at a loss as well. I don't know if I can enlighten you to any great extent. Certainly, what you have said is I'm sure true that there have as a consequence of his actions, he must pay the penalty. And he's probably paid the penalty through media attention, criticism and - and economic suffering that might have occurred. I don't know the background of the economics, what he paid counsel, but I'm sure if it's anything like most counsel they charge you a few dollars. But in essence beyond that I'm at a loss as well as to what -- if we can differentiate between the sanctions that would have been imposed for the violation versus the sanction that would have been imposed having heard -- the Ethics Committee having heard all the whole story, and then because of un-cooperation or whatever they imposed a sanction or sanctions at the end. I mean it's hard to separate the two, in my mind. I don't know what would be appropriate, if anything. Representative Phillips. Number 2401 REPRESENTATIVE PHILLIPS: Mr. Chairman, on that point in going through the sanctions, I think it's fairly clear that the majority of the sanctions recommended by the Ethics Committee relate directly to the violations, and we have said those violations are not a matter for us to concern with. The one sanction that doesn't deal directly with the violations, only, is the issue of an apology and the apology -- there's wording in that sanction that says, "He wishes to avoid directly saying he participated in order to protect his Fifth Amendment Right against self-incrimination." So that part of the apology statement could relate directly to the lack of cooperation. All the other things relate to the violations which we have said he is not guilty of the violations. So just strictly staying within the sanctions and the -- relating the sanctions to the issue of cooperation or non-cooperation. Number 2450 CHAIRMAN KOTT: Well, I think you may be on to something, actually. TAPE 97-6, SIDE B Number 001 REPRESENTATIVE PORTER: I guess there's two sanctions in here that I think have already been accomplished, if I am not mistaken, and I guess Representative Sanders can just shake his head, but it's my understanding that Representative Sanders has already elected to change his office account allowance to the nonaccountable versus the accountable so one of those recommendations is already accomplished. And that as a result of the previous recommendations from the Ethics Committee, he has attended the ethics training that was made available this session, so for what its worth, I guess two of these seven have already been done anyway Number 041 CHAIRMAN KOTT: I'd certainly agree with you in fact I'd even throw in number three on the reimbursement. Since we have, at least the majority has established that there was not -- alleged violation, did not occur so, three, reimbursing LAA for the $76 and the compensation for the employee doing the work basically is been overcome by events and that is at least from what I'm hearing, the majority has.... Number 060 REPRESENTATIVE PORTER: If I may, Mr. Chairman, there is a couple - - one other thing perhaps within the sanctions that the committee didn't understand. It calls for the inability of Representative Sanders to spend committee funds and do travel without authorization and as a matter of fact the committee that he chairs, like the committee that I chaired, doesn't have any funds and no expenditures can be made without leadership approval and no travel can be done without leadership approval just like all the other legislators. So I think that recommendation is, I guess, really necessary. REPRESENTATIVE KOTT: I would concur with that assessment as well as I think all of us are aware of down here that there are only one or two individuals who really control the purse strings as far as travel, and certainly from his particular point of view and perspective, it would be the Speaker's office. And that's how it is for all of us or at least for all of us that I am aware of. Representative Elton. Number 107 REPRESENTATIVE ELTON: Thanks Mr. Chair. Certainly, that's what I learned very early on, but I guess the thing that I would point out is - is the recommended sanction was not to allow somebody to be the gatekeeper on whether or not there shall be out of state travel. The sanction was the Speaker wouldn't have that option to be the gatekeeper which may be a fine distinction, but I think it is a distinction that needs to be made. I hope the Chair will allow me a little bit of leeway because I - I said earlier that - that when we were debating the question of guilt that I disagreed with the conclusion that a lot of you had come to, but I also said during that debate that do - do I -- if I classified this as a Class A felony or a Class C misdemeanor I would certainly be way down at the lower end of - of - of the scale. The - the difficulty for me is - is that in this whole process what has bothered me more than what I had determined was a violation of the ethics code was was how this had all escalated. How this had cost so much. And I - And I think when we total cost we talked just about what Representative Sanders may or may not of had to pay to his attorney, but what it has cost the committee, what it is costing this committee and - and that's fairly significant and - and that has always been something that has bothered me an awful lot. And - and so if -- I - I guess what I am throwing on the table is that I don't think that we should necessarily say "Okay, we - we have made a decision on guilt and innocence, therefore, we lower the sanctions therefore we lower the sanctions." There's nothing that requires us to lower the sanctions, especially if we feel aggrieved as the motion by Representation Vezey that passed this body says that we feel aggrieved about the lack of cooperation that doesn't mean that what we do is we therefore then go in and start paring down the sanctions. I think the sanction question is a whole new question. And - and - and we shouldn't be limited to what we take off here. I mean the discussion should also include, you know, what is an appropriate sanction, not be limited by what's - what's down here. Having said that I don't -- I mean I don't feel comfortable, you know, suggesting a sanction. I - I - I - I think that... CHAIRMAN KOTT: Is that a motion to... REPRESENTATIVE ELTON: No it's not a motion. And - and - and I - I think that it is something that - that is -- if - if - if we use a recent example on the national level, I mean there was a $300,000 assessment against a Congress person to cover the cost of -- to the body that the complaint had done. I am not suggesting that there be any financial assessment, but I am suggesting, I guess, that we don't limited ourselves to one, two, three, four, five, six or seven -- figure out which ones have been applied which ones may be appropriate. I think the are a whole range of sanctions that could committed -- considered by this committee. Number 268 CHAIRMAN KOTT: Certainly, you're correct in - in that assessment, however, I think when the committee made their recommendations, they had specific sanctions in mind and they listed those numerically here for us and I think to stray too far off course would then have a chilling affect in the Ethics Committee in recommending sanctions to the body if we are not going to look at them and accept at least the ones that they put before us. And we do have the options and I mean that's clear in the law. I think it would behoove us to at least closely analyze the sanctions that they've recommended and at least start from that list. If we end up straying off the list, I think that's our prerogative. Certainly, I think from their perspective I believe they would want us to - to at least look over the numerical list of sanctions that they forwarded to this body. Number 315 REPRESENTATIVE ELTON: My short response to that is that I think we accomplished the chilling effect on the committee by substituting our judgement. And - and - and so I think that's already been done. CHAIRMAN KOTT: Representative Porter. Number 326 REPRESENTATIVE PORTER: I - I guess I need to respond to that because there are all sorts of review processes in the law and in practice that recognize and appeal and the ability of the Appeal Board to make another decision. And I, having been a member of that committee and having, of course, been a member of the legislature, I really resist the implication that we have had a chilling effect on them. As a matter of fact, the first thing the chairman of the Ethics Committee said when she presented her positions was that we most properly did have the authority and the right and the responsibility to review their work and to make these kinds of judgements. I mean one could say that the Planning and Zoning Commission should be upset every time the Municipal Assembly acted as a board of review and turned around an appealed decision. It happens all the time and district court and superior court decisions get appealed and reversed all the time. Goes with the territory if you are going to make decisions, if there is a process of review and, frankly, without process of review, nobody would have any due process. To say that we are in some way implying that they made an error, that they did something wrong is absolutely not what I feel we're doing. We are doing what we are, by statute, required to do and that is make a review and make a decision based on our results of that review. REPRESENTATIVE KOTT: Thank you Representative Porter. We have gone through a couple of the sanctions. Does anyone want to address any of the additional sanctions? At least that were provided to us from the Ethics Committee or have any further comments on the sanctions? We can come back early next week and address the sanctions if you would -- that's the will of the committee. We can come back with a working document with the remaining sanctions left that we determined are still appropriate to address with an option to include or to add, amend, change. I think perhaps in the late hour, that may be the best course of action this particular time, unless anyone has any suggestions I know we have been at it for a number of days and a number of hours and I appreciate everyone being here. This is an important matter it is probably one of the most important things that we'll address this session, although there are probably others on equal terms, but certainly this is one of the most important issues that is before us. And certainly it will the most important issue before the Rules Committee. So if there are no further comments. Representative Phillips. Number 490 REPRESENTATIVE PHILLIPS: Mr. Chairman, I would just have one more comment to make. I would request that at some point in time that you would schedule a Rules Committee meeting so that we, as members, could maybe work up a working draft of the rough draft of those areas of the ethics law that -- from the - from the discussion that we have had here the last three days we feel should be addressed by a committee that is going to be working on the revisions. We could just identify those areas of concern that we'd like to have included. Number 512 REPRESENTATIVE PORTER: I would concur with that and ask the consideration of input from the Ethics Committee, themselves, that we have a laundry list of areas that they have found (indisc. -- paper ripping) in the law and certainly would be one of the best sources of.... Number 528 REPRESENTATIVE PHILLIPS: And I think they have the - that just about ready. They had one draft and then they are waiting for the new members to come on with their next draft. Number 533 REPRESENTATIVE ELTON: I don't know if the maker of the motion would consider a - a small change. I mean I don't think this is a bad idea. I especially appreciate Representative Porter's suggestion that the Ethics Committee could be involved. I wonder if it might not be easier for that task to be accomplished by the Judiciary Committee. Number 551 REPRESENTATIVE PHILLIPS: I didn't make a motion Representative Elton. I asked the Chairman to call another Rules Committee meeting so we could put together a - a draft of all those points we want. We have another plan for how we are going to do it. It probably will be Leg Council that will -- since it is made up both House and Senate members or it could be both Judiciary we haven't determined that yet. REPRESENTATIVE ELTON: Okay, so you're not suggesting that we... REPRESENTATIVE PHILLIPS: All I want us to do is itemize. Number 568 CHAIRMAN KOTT: And at some point that is going to be my intent perhaps along with the recommendations that this committee sends to the entire House floor. It's also a recommendation accompanied by a list, a laundry list, of those areas that I believe are troubling, that have identified by members in this committee as well as members of the Ethics Committee that's been before us. And there's other issues that they certainly didn't discuss that they have on their plate that they would like us to address. And my recommendation would be that that particular area be then referred to Leg Council since it can be taken up by members of both the House and the Senate, and they can address those issues and once they formulate some kind of conclusive (indisc) on the matter they can forward it back to the respective Rules Committee for introduction. Number 618 REPRESENTATIVE ELTON: I - I think that is a good idea. I'm comfortable with that approach. I - I mean if we're going to do that, one of the things that I'd like added to the laundry list for consideration is consideration of either a change in the Uniform Rules or a change in statute that allows appeals to be held only on the record. That would encourage cooperation at the lower level I think and so I's appreciate it if that's added to the list. And - and then could I get some -- I - I have a feeling we're getting close to winding down. Could you clarify for the body or for the Committee perhaps I mean what we've done so far. My understanding is that we have passed two motions. Both of those motions will be taken to the full body for their consideration. Is that what the next step is? Number 655 CHAIRMAN KOTT: Essentially that's - that's correct. What I will have staff do is to basically reconstruct what occurred this evening, provide some background, the facts supports the case and then address the - the issues that we've address here this evening to include the two motions that were made and adopted by the committee for forwarding to the entire House as well as the issue dealing with sanctions. I will include the remaining sanctions and I know we didn't really make a motion but it seemed like, at this point, since we are not forwarding that particular aspect, at this point, to the entire House, we did at least address some of the issues in the sanction part of the - the equation and eliminated some of those so I will leave the ones and make mention that these ones had been eliminated with the following yet to be decided upon and also leave open the option of including additional sanctions. Representative Porter. Number 709 REPRESENTATIVE PORTER: I guess I don't understand. Are - are we gonna come back and meet to resolve those issues or are we sending what we have done to this point as the final decision to the main body. Number 21 CHAIRMAN KOTT: Well it was my understanding that what we would end up doing, at least from the very beginning, discussions would come back. I'd give you a basically a working draft that we can either accept or reject as well as to then address the remaining areas that we have not firmed up. We haven't narrowed this down to the sense that we can... Number 740 REPRESENTATIVE PORTER: I guess if I may to that point, I would feel uncomfortable if we couldn't come up with a specific recommendation and... UNIDENTIFIED SPEAKER: Me too. REPRESENTATIVE PORTER: Obviously the House has the right to accept, reject or modify that, but at least they'll have specific recommendation and not the requirement to try and get through what we've just gone through. Number 760 CHAIRMAN KOTT: Yeah and that's - that would be certainly be my - my intent is we get down to the sanctions and come up with the appropriate sanction as we see it, if it is the will of this committee to impose a sanction at all. Again, it looks like we are somewhat at loggerheads here and we're -- we've reduced the list to three or four remaining, but it seems like we're - we're kind of at an impasse and just unsure of ourselves so I thought perhaps a break over the weekend will give us an opportunity to again rethink the issues over and maybe come up with something additional to - to the ones at least on the list. But I would like to but I would like to at least address the sanctions on the list, to accept or reject, and then move on to either another one or amend one of the - the existing ones. Representative Williams. Number 801 REPRESENTATIVE WILLIAMS: I have a question. You mentioned two motions I thought we only had one motion that passed. REPRESENTATIVE PHILLIPS: That's what I was thinking too. We had the one, Vezey's motion, that passed. But we did take a vote earlier what was that on? REPRESENTATIVE WILLIAMS: That was Representatives Elton's... REPRESENTATIVE PHILLIPS: No, before that or was -- did we only have two votes? CHAIRMAN KOTT: That's right, there was there was two votes taken. One failed. Yeah, I'll address both - both the motions, but the one motion of course is the substitutive one. Representative Elton. Number 826 REPRESENTATIVE ELTON: So - so are you planning on taking both motions to the floor or are you taking -- planning on taking one motion to the floor so - so... Number 834 CHAIRMAN KOTT: No, both motions will be indicated in the draft document with one indicating it passed and one indicating it failed. The final draft, as I see it, will recommend in the findings that we have found, as a committee, that there were no violations and we're still at the point determining the sanctions based on Representative Sanders unwillingness to cooperate. Number 863 REPRESENTATIVE ELTON: I guess the observation that I have, Mr. Chairman, is something I'd like to -- you as the Chair to consider over the weekend as you and your staff are working, and we are not working on this, is - is that I - I think that there is some expectation on the part of the body that the body sent to us the decision by the Ethics Committee is looking for the recommendation from this Ethics Committee back to them so they can say whether or not they agree with this committee. REPRESENTATIVE PHILLIPS: The Rules Committee back to them. REPRESENTATIVE ELTON: The Rules Committee, yeah, the Rules Committee back to the floor so they can see -- say have an opportunity to say whether or not they agree with this committee on the issue of guilt or innocence. So I -- my recommendation is - is that any report out of the Rules Committee be a - a - a - a report and either one -- and either two or three parts. The first report out -- the question -- the recommendation on guilt or innocence. And the second part out would be the question of lack of cooperation. and you could even have a third, but you might want to combine it with the second, lack of cooperation and then sanctions for the lack of cooperations. It could be combined, I guess, into just having two and that would be my recommendation. I would appreciate it if you could... Number 922 CHAIRMAN KOTT: That is exactly the road that we plan on taking and if I failed to make myself clear, I apologize but that is the exact route that a we are perusing. Representative Williams, do you have a comment? Representative Nicholia Number 933 REPRESENTATIVE NICHOLIA: Mr. Chairman, just some statute clarification on the laundry list. Where is this laundry list gonna go and how is it going to be used and will this also go to the floor with - with the recommendation? Number 945 CHAIRMAN KOTT: It will be part of a... REPRESENTATIVE PHILLIPS: (Indisc.) laundry list where the Rules Law could be changed. That'll come much later. CHAIRMAN KOTT: Well actually that would a I - I'm, with the concurrence of the committee, I would like to at least forward that particular document as -- and if it's conceivable that we are in accordance with a process procedures involved here, I'd like to send that to the Speaker and subsequently to the floor. That particular portion wouldn't necessarily have to go the floor, but certainly to the Speaker that we have addressed certain number of issues and attach it either as an amendment or an addendum to the report, separate from the report, but certainly attached, if you will, with that. It may not -- we'll have to check on that it may be just a separate document that would be forwarded... Number 993 REPRESENTATIVE NICHOLIA: Okay that's what I'd like you to do is get a legal opinion somewhere (indisc.--coughing). Number 999 CHAIRMAN KOTT: Yeah, and again, I am not sure of the process here, but certainly we'll - we'll conform to - to standards, acceptable standards. So if you have any a items that you would like to see included we would ask that you forward those on to my office. We'll make sure that they're they're part of the package. Further comments on this evening? I, again, appreciate your attention span and wish you and bid you a fair good night and a good weekend and we will recess. More than likely it's going to be Tuesday afternoon before we are going to be able to get back. We do have a one of our congressional delegation members in town on Monday which may preempt this from occurring, but it is still the plan, as I mentioned earlier on this week that we would forward the recommendation from this committee to the entire House by midweek. So we'll try and get that out to them on Wednesday. We'll in recess. [Chairman Kott recessed the House Rules Committee meeting at 9:52 p.m.]