SENATE AD HOC COMMITTEE ON ETHICS January 23, 1993 1:05 p.m. MEMBERS PRESENT Senator Mike Miller, Chair Senator Drue Pearce Senator Jay Kerttula ALSO PRESENT Tamara Cook, Director Division of Legal Services Legislative Affairs Agency 130 Seward St., Suite 409 Juneau, AK 99801-2105 Terry Cramer, Legislative Legal Counsel Division of Legal Services Legislative Affairs Agency 103 Seward St., Room 407 Juneau, AK 99801-2105 ACTION NARRATIVE TAPE 93-1, SIDE A Number 001 The meeting of the Senate Ad Hoc Committee on Ethics was called to order by Chairman Miller at 1:05 p.m. He stated all members were present, as well as Tam Cook, Director, Division of Legal Services, and Terry Cramer, Legislative Legal Counsel. Chairman Miller directed attention to a memo dated 1/22/93 from Ms. Cramer to Senator Pearce concerning the powers and responsibilities of the Ad Hoc Committee on Ethics and the Select Committee on Legislative Ethics. Under AS 24.60.037, the legislature and legislative committees are required to comply with the state Open Meetings Act, which means the Ad Hoc Committee falls under the Open Meetings Act. However, in the new ethics legislation which passed in 1992, AS 24.60.170, subsection (l) provides the proceedings of the committee relating to complaints before it are confidential until the committee determines that there is probable cause to believe that a violation of this chapter has occurred. Chairman Miller said the committee was in a "Catch 22 situation," because in order to follow the Open Meetings Act, the committee would violate the spirit of the new ethics law, and, if the committee follows the spirit of the new ethics law, it violates the Open Meetings Act. Chairman Miller said that when the new ethics law was passed last year, it was not realized that the old ethics committee would be gone and there would be a period of time where there would not be an ethics committee up and running. He added that it was his understanding that the body is going to try to expedite getting two Senate members appointed to the Select Committee on Legislative Ethics. Chairman Miller advised that he will be formally requesting funds on Monday to hire an investigator to gather facts on what actually happened that night, because, as of right now, the only hard data is a tape recording from the Juneau Police Department. In any case, there are a lot of allegations out there, and the committee needs to have some hard facts so that they can be turned over to the new ethics committee. He also said he would be contacting Commissioner Burton of the Department of Public Safety on Monday to get a list of names of retired troopers that could be contacted in regard to conducting an investigation. Number 070 SENATOR KERTTULA requested that in choosing an investigator, the other members of the Senate Minority be contacted and informed, and if they have reason for thinking that it isn't the best choice that they be heard. Senator Kerttula also requested that the committee take under consideration the possibility of the vice chairman taking over the responsibilities of the Rules Committee for the period of time that the investigation is being conducted and everything is cleared up. Number 096 CHAIRMAN MILLER said it was his intention to bring back a couple of different names to the Senate Ad Hoc Committee on Ethics so that there would be a selection process that all the members of the committee could feel comfortable with. SENATOR KERTTULA said he has been told that a lot of opportunity is lost rather quickly, and he was pleased that an investigator would be hired as quickly as possible. Number 108 CHAIRMAN MILLER noted that it has come to his attention that there have been four complaints filed, but he has not received copies of them. However, he pointed out that these are not four new complaints, rather they are four complaints regarding the same incident. Number 125 CHAIRMAN MILLER opened the meeting to questions from the public. DAVE DONALDSON, Alaska Public Radio Network, asked if because of the Open Meetings Act, the committee was limited at this point to just having an investigator. CHAIRMAN MILLER acknowledged that was correct, and he said the investigation was being started to gather information for the permanent ethics committee. SENATOR PEARCE added that in order to do a proper investigation in this case, there were, obviously, other people involved, and that she is very concerned that anything that is done that brings those people into an investigative arena where they would be under oath has to be private and confidential. Number 150 IAN Mader, Associated Press, asked if it was correct that the Ad Hoc Committee on Ethics can't bring in witnesses and have them testify under oath. CHAIRMAN MILLER responded that the Ad Hoc Committee could hold hearings and ask people to testify, but they could not be compelled to testify because the committee lacks subpoena powers. SENATOR PEARCE added that the committee has the power to ask people to testify under oath, but the problem is that it cannot be done behind closed doors by the Ad Hoc Committee on Ethics because of the Open Meetings Act. Mr. Mader also asked what kind of activities would be held up by not having a Rules Committee chairman present. SENATOR KERTTULA answered that nothing would be held up, and the vice chairman would be overseeing the day-to-day management of the committee. Number 188 TAM COOK clarified that the legislature is subject to the open meetings statute. The court, by judicial interpretation, has indicated that it will not enforce a violation of the open meetings statute against the legislature. However, in the new Ethics Act which is now in effect, the legislature has elected to make a violation of the open meetings statute a violation of the ethics law. That was not true until it took effect this January. Essentially, the legislature has brought itself under the control of the open meetings statute through the mechanism of giving its own ethics committee jurisdiction over those types of violations. Ms. Cook advised that there is great deal that a committee can do under the Open Meetings Act and comply with that statute, but they must comply with the notice requirements and they must go into Executive Session properly. In some instances, in an investigation such as this, assuming the Ad Hoc Committee ends up having to go forward with it in the absence of the select committee being formed, Ms. Cook said the Ad Hoc Committee, on occasion, could probably invoke the portions of the open meetings statute that provide for Executive Sessions to protect matters involving personality or that may be damaging to a person's reputation. She said the problem is that it is a fairly narrow protection. And short of that particular one, there may be all sorts of matters that they have difficulty getting into Executive Session properly to deal with. Ms. Cook said the Select Committee on Legislative Ethics has been directed to keep a great deal of their investigatory stage confidential. The statutes, with respect to that select committee, are far different from the statutes that apply to another committee of the legislature that is abiding by the open meetings statute. Concluding, Ms. Cook said the dilemma that confronts the Ad Hoc Committee on Ethics today is that they are concerned that they will not be able to behave in the same way that the select committee can behave because they do not have the statutory framework that was put into effect to enable the select committee to conduct confidential investigations. Number 230 SENATOR KERTTULA related that there had been a suggestion of drafting legislation that would allow the Ad Hoc Committee to opt in briefly with varying powers until the formal committee is appointed. However, it looked like that would be delaying and cumbersome, and the major concern was that it might get the Ad Hoc Committee into an ethical problem. Number 250 CHAIRMAN MILLER adjourned the meeting at 1:21 p.m.