JOINT SENATE AND HOUSE JUDICIARY COMMITTEE March 24, 1993 3:43 p.m. SENATE MEMBERS PRESENT Senator Robin Taylor, Chairman Senator Rick Halford, Vice-Chairman Senator Suzanne Little SENATE MEMBER ABSENT Senator George Jacko Senator Dave Donley HOUSE MEMBERS PRESENT Representative Brian Porter, Chairman Representative Jeannette James, Vice-Chairman Representative Pete Kott Representative Gail Phillips Representative Joe Green Representative Cliff Davidson Representative Jim Nordlund OTHERS PRESENT Representative David Finkelstein COMMITTEE CALENDAR CONFIRMATION HEARINGS: Select Committee on Legislative Ethics WITNESS REGISTER Jeff S. Anderson 1230 Friendly Lane Anchorage, Alaska 99504 POSITION STATEMENT: Public member to testify. Joseph P. Donahue P.O. Box 1736 Kenai, Alaska 99611 POSITION STATEMENT: Public member to testify. ACTION NARRATIVE TAPE 93-31, SIDE A Number 001 Chairman Robin Taylor called the Joint committees of the House and Senate Judiciary Committee to order at 3:43 p.m. to discuss the appointment and selection of two people to the Select Committee on Legislative Ethics: DR. JEFF S. ANDERSON and JOSEPH P. DONAHUE. SENATOR TAYLOR introduced the Co-Chairman of the committee, REPRESENTATIVE BRIAN PORTER, and the remainder of the Senate and House Committee members. SENATOR TAYLOR explained to DR. ANDERSON the committee had his letter, application form, resume, voter registration, and a background check, which showed nothing amiss. He asked DR. ANDERSON to make an opening statement. Before DR. ANDERSON made his statement, REPRESENTATIVE KOTT announced he had a close economic relationship between himself and DR. ANDERSON. REPRESENTATIVE KOTT asked to excuse himself from participation in the committee. SENATOR TAYLOR asked REPRESENTATIVE KOTT for his disclosure. REPRESENTATIVE KOTT explained they had an employer-employee relationship, since he had taught at Wayland Baptist University for the past seven years, and would continue to teach in the coming year. SENATOR TAYLOR said there was a motion to abstain from taking part in the committee process because of a close economic relationship. REPRESENTATIVE JAMES objected and thought he should participate. There was a discussion on the legality of the motion, and REPRESENTATIVE JAMES withdrew her objections. REPRESENTATIVE KOTT was not required to participate. SENATOR TAYLOR renewed his invitation to DR. ANDERSON to make an opening statement. Number 088 DR. ANDERSON thanked the committee for the invitation, as well as CHIEF JUSTICE MOORE for this opportunity to be invited before the committee. DR. ANDERSON began by explaining he came to Alaska in 1991 to become the director of the Wayland Baptist University's Alaska extension, both in Anchorage and the Interior. He explained his involvement in the post-secondary commission meetings and his growing interest in ways he might be able to serve the state in a volunteer capacity. DR. ANDERSON explained his responsibilities at Wayland University as primarily administrative, but teaches several classes during the school year. He described his duties as the administrator for Wayland in meeting the needs of the students. DR. ANDERSON said the advertisement in the newspaper piqued his attention. He read a copy of the ethics law and decided to apply. SENATOR TAYLOR opened the meeting to question by committee members. Number 146 SENATOR LITTLE asked DR. ANDERSON if he had spoken to any legislators before or after making his application. DR. ANDERSON explained he had not heard anything for so long, he didn't think he had been considered. He acknowledged a brief conversation with REPRESENTATIVE KOTT about teaching during the summer and fall semesters, and whether he might be coming before the committee. REPRESENTATIVE GREEN asked DR. ANDERSON if the stories in the press about the casualties had given him any heartburn, and DR. ANDERSON indicated his desire and interest to serve on the committee had not changed. He didn't think the newspapers told the whole story, but he did share the jokes from other people when they found he was coming to Juneau for a hearing. Number 210 REPRESENTATIVE GREEN asked DR. ANDERSON how he would react to pressure brought to bear. DR. ANDERSON didn't think he would have any problems, since he knew the ethics law quite well, and he described his research on the law. He became involved in the interpretation of the ethics code, as apposed to a moral opinions on the issue. REPRESENTATIVE PORTER questioned further the interpretation and application of the ethics statute. DR. ANDERSON opined the distinction between personal morality and an ethics code, and he commented on personal morality, the ethics code, and abuse of power. He quoted some of the provisions in the statute to confirm his opinions. Number 275 REPRESENTATIVE PORTER described the urgency on the legislature to establish an ethics committee as related to the allegations against two members of the legislature. He asked DR. ANDERSON if he had formed any opinions about any allegations against any members of the legislature. DR. ANDERSON admitted to some biases from reading the newspaper accounts, but thought it was more important to know the whole story. He felt he has a reputation for being fair and open minded, and he described some general concerns. REPRESENTATIVE PHILLIPS asked DR. ANDERSON how he would mesh the responsibilities and duties of the ethics committee with his personal life. He said he had first discussed these questions with CHIEF JUSTICE MOORE, his employer at Wayland Baptist University, and his staff in Anchorage to let them know there might be several weeks when he might be out of the office. Number 324 DR. ANDERSON explained he had two young children, ages 8 and 4, and he had discussed the possibilities with his wife. He thought it would be difficult for anyone with a full-time career, and he suggested the legislators were involved in similar decisions. He claimed he had the full support of his staff, his employer, and his family. REPRESENTATIVE PHILLIPS asked about any interaction with the press and how he might deal with an obstreperous press. DR. ANDERSON said he had very few dealings with the press and his responsibilities were low key. He did understand about being pushed and pointed in a particular direction, but he didn't think he would have a problem with it. REPRESENTATIVE PHILLIPS asked MR. ANDERSON'S for his personal philosophy as far as problems with the press, and DR. ANDERSON said he would defer to the chair for liaison duties. Number 375 REPRESENTATIVE PHILLIPS questioned DR. ANDERSON closely on his educational background and Wayland Baptist University, and he explained some background information on the Wayland Baptist University system, which are usually connected to military bases except in Alaska. The committee members also discussed Vanderbilt University, which DR. ANDERSON had attended for his doctorate. SENATOR LITTLE quizzed DR. ANDERSON on any conclusions from the stories he had read to this point. MR. ANDERSON, in reference to SENATOR JACKO, reviewed what he thought might be violation of the ethics code, but he had read about similar ethics complaints that had been dropped. He thought he could successfully sift through the complaints. Number 441 There ensued some raillery about what one reads in newspapers, and he elaborated on being a Baptists, and how they are sometimes lumped together on philosophical and religious issues. He spoke against lumping everyone together in one pot - even legislators - and asked that he be perceived as being open minded, also. REPRESENTATIVE JAMES described an ethics complaint filed against the legislature for not filling the ethics committee by now, and she indicated that some ethics complaints were frivolous. She asked how he would deal with frivolous complaints. DR. ANDERSON said he would take them seriously and follow the ethics code. He reviewed some of the previous complaints and how they were handled. She asked him if that was how he would handle the complaints, and he said he would. Number 498 REPRESENTATIVE GREEN described a hypothetical complaint and asked DR. ANDERSON how he would make his decision. DR. ANDERSON suggested there might be a time factor in making a decision, but he was confident he could help the committee reach a consensus agreement. SENATOR LITTLE asked DR. ANDERSON how he felt about a person who drinks alcohol. DR. ANDERSON indicated he had no problem with drinking, said it was a personal moral issue, and was not related to the ethics code. SENATOR LITTLE asked if he thought a person's actions could be excused because of the influence of alcohol, and DR. ANDERSON said, "Absolutely not." SENATOR TAYLOR gave DR. ANDERSON a hypothetical case in which the press has escalated the tension for some period of time. After an exhaustive investigation of the person charged with the ethics violation, the ethics committee found the charges were totally groundless, and were politically motivated. SENATOR TAYLOR asked DR. ANDERSON what he would do in such a case, while being hampered by a code of confidentiality. DR. ANDERSON did not understand the case, so SENATOR TAYLOR described it again, blaming the media for exposing the confidential nature of the case. SENATOR TAYLOR asked what the committee could do to make the person charged with the complaint whole again - if they find the charges totally groundless. DR. ANDERSON reviewed a case he had found in his research with similarity related issues along the lines of SENATOR TAYLOR'S make-believe case, and he said the complaints were dropped. DR. ANDERSON didn't think, in such a case, that it could be undone, and he blamed the press for not being as careful as it should be in assessing a person. He explained he would be limited to the constraints of the committee. SENATOR TAYLOR referred to DR. ANDERSON'S distinction as to what would be a violation of the code and what would be a violation of morality to ask if he came to the committee with an inherent set of standards of conduct for legislators. DR. ANDERSON explained he was an ordained minister as well as an educator, and he would not put his personal morality on anyone. DR. ANDERSON reiterated his belief it was the major responsibility of the ethics committee to interpret the legal code, and he spoke again about controlling his biases. Number 625 SENATOR TAYLOR asked for DR. ANDERSON'S understanding of a citizen legislature with all kinds of occupations, and he said it was important to know if DR. ANDERSON expected all legislators to live up to a certain standard. DR. ANDERSON claimed he had no expectations of others that would be unique to legislators. SENATOR LITTLE asked DR. ANDERSON how he would define his particular congregation, and he rephrased his remark that all Baptists were not alike. He portrayed himself as a moderate Baptist and not part of the fundamentalist category. He shared some of his personal and important views about his belief in Jesus Christ. Number 670 REPRESENTATIVE GREEN asked DR. ANDERSON why he would want to subject himself to pressure, ridicule, and personal attack, in being on the ethics committee. DR. ANDERSON said he had thought about that, but he felt his background would help him do a good job on the committee. He was willing to take the risks. REPRESENTATIVE FINKELSTEIN wanted to address SENATOR TAYLOR'S imaginary case of false accusations to clarify the committee couldn't explain the details in the case of insufficient evidence, but the confidentiality would not apply to the person accused. He said the person accused could described the details to the press to clear their name, and it was only the members of the committee who were under a ban of confidentiality. SENATOR TAYLOR agreed the accused person would have the right to go to the press, but he thought if the person had been beat up by the press, the press wouldn't listen to the person's explanation afterwards. They discussed the confidentiality of the committee, and SENATOR TAYLOR continued to castigate the media. Number 724 REPRESENTATIVE NORDLUND, in answer to a statement by SENATOR TAYLOR about the different backgrounds of the legislators, thought when they take the oath of office, legislators are imbued with a lot more power than just plain citizens. He reviewed the distribution of money, the laws that effect lives, and the influence of the budget on the lives of the rest of the state. REPRESENTATIVE NORDLUND defined the ethics code as it applies to the misuse of a legislator's position, and he was troubled by a statement he heard from DR. ANDERSON that put legislators on a par with ordinary citizens. DR. ANDERSON clarified his statements as to the ethical code and his distinction between ethics and morality. They discussed a clear definition of ethical standards. SENATOR LITTLE asked DR. ANDERSON if he personally held legislators to a higher standard than the general public, and DR. ANDERSON said he would like to hold them to a certain standard of behavior, just as he would a minister. DR. ANDERSON thought such standards were owed by the legislators to the citizens. SENATOR LITTLE asked DR. ANDERSON how he would define sexual harassment. Number 775 DR. ANDERSON explained his university had a clearly defined sexual harassment policy, and he gave examples of behavior that was not appropriate, either stated or implied. REPRESENTATIVE JAMES followed in the same line to ask whether it had to be harassment to the opposite sex, and DR. ANDERSON explained grey areas such as intent and friendship with the opposite sex. REPRESENTATIVE JAMES asked if sexual harassment could be identified by the person being harassed, more so than the person doing the harassing. DR. ANDERSON thought it would be and that persons should be able to answer the accusations, but a person felling harassed should be able to use proper channels to object. After some discussion, REPRESENTATIVE JAMES referred to SENATOR LITTLE'S question whether the use of alcohol might change the intent of the perpetrator, and DR. ANDERSON thought the perpetrator should still be held accountable. They continued to discuss intent v. action and agreed it was tough to answer. SENATOR TAYLOR expressed his interest in the life experience of a person rather than education or offices held, and he asked DR. ANDERSON about his background as to family, compassion, and frailties. Number 836 DR. ANDERSON described his family, a working wife, two young children, and being foster parents in terms of compassion. He described his call to the ministry and his approach to dealing with people. He said he had never sat on a committee exactly like the ethics committee before, but he related he was familiar with the variety of committee work. DR. ANDERSON declared he was a Cheechako and discussed the importance of his contribution to the committee. TAPE 93-31, SIDE B Number 001 DR. ANDERSON explained the longer they were in Alaska, the more they liked it. SENATOR TAYLOR expressed appreciation to DR. ANDERSON for his testimony and introduced the next prospective member, JOSEPH DONAHUE. SENATOR TAYLOR explained to MR. DONAHUE the committee also had his letter, application form, resume, a voter registration showing an undeclared affiliation, and a background check, which revealed nothing. He invited MR. DONAHUE to make his statement before opening the committee to questions. MR. DONAHUE said he could shorten the interview by seconding all of DR. ANDERSON'S answers. He elicited the information that he had two grown children, and a wife, who works for the legislature, but he didn't see that as a problem. Number 092 He reviewed his college degree in agricultural engineering, his 25 years with the Bureau of Indian Affairs, his arrival in Alaska in 1972, worked in Fairbanks and Juneau, his return to Washington D.C. for four and half years as the Alaska Advisor to the Assistant Secretary, and his arrival back in Alaska. MR. DONAHUE considered himself as having a good standard of ethics, and he thought all public officials should have the public trust that comes with serving as a public servant. He reviewed his service on the school board and on a real estate appraisal board, and he encouraged ethical practices in public service. MR. DONAHUE said he had seen the ethics code, and he thought making the judgement calls would be extremely difficult, but he described the judgement calls that he has made. SENATOR TAYLOR opened the committee to questions by the members. SENATOR LITTLE said she had been talking to people in her area, just twelve miles from MR. DONAHUE, who think very highly of him. She asked how he would handle his wife's employment for a legislator. MR. DONAHUE said he would stay out of that part of any discussion and would not participate if it involved her office. Number 177 REPRESENTATIVE PHILLIPS thanked MR. DONAHUE for submitting his name for the committee and asked if, when he worked for the federal government, he operated under an ethics code. MR. DONAHUE explained the government has extensive rules on conflict of interest and a code of ethics, which continued after an employee leaves the federal government. He indicated it was stronger than the ethics code for legislators and explained how he worked with the ethics code in the federal government. REPRESENTATIVE PHILLIPS asked about his personal life in relation to his business operations. MR. DONAHUE explained he was building a house to be completed in June. In addition he has a consulting business associated with non-profit native organizations dealing with government contracting, writing grants, conducting grant seminars and writing handbooks, but he indicated he had control over his work load as a private business person. He thought he would be able to adjust his schedule to have time to work on the ethics committee, since he is used to making time for committee meetings. REPRESENTATIVE PORTER described stories in the newspapers involving accusations against members of the legislature that have been filed and awaiting determination by the ethics committee. He asked MR. DONAHUE if he had been exposed to them and formed any opinions. Number 249 MR. DONAHUE said it was hard to miss the newspaper accounts, but he said he had been careful not to form an opinion, because he knew all of the facts were not yet available. REPRESENTATIVE PORTER asked MR. DONAHUE if he would be comfortable applying the dictates of the ethics statute, rather then what might be his own personal beliefs, to render judgement. MR. DONAHUE said he was used to applying statutes, mostly on the federal level, with which he didn't always agree, but he would adhere to the ethics statute. REPRESENTATIVE PHILLIPS asked MR. DONAHUE if he had any problems dealing with the press during the time of he was working with such highly visible issues as ANCSA, ANILCA, and subsistence. She wanted to know his experience in dealing with the press. Number 299 MR. DONAHUE described his experiences that led him to be more careful in his dealings with the press, but had no problem dealing with the press when he was on the school board. He thought there should be a single spokesman from a group, but he supported the media in their need to have information. REPRESENTATIVE GREEN asked him why he had no military record. MR. DONAHUE explained he was going to school during the Vietnam War, and was a member of the Air Force ROTC. When he was ready to go to war, a medical problem was discovered, and he wasn't allowed to serve. REPRESENTATIVE GREEN asked MR. DONAHUE about his consulting service. Number 374 MR. DONAHUE explained he had been conducting seminars on federal government contracting under an act which allows Indian groups to take over the service delivery functions of the Bureau of Indian Affairs Indian Health Service. He elaborated on his seminars and his grant writing experience. In addition, he is writing handbooks and conducting training seminars. REPRESENTATIVE GREEN suggested, with such a busy schedule, he must have due dates that were important, and asked if it would place any restrictions on his schedule in relation to the ethics committee. MR. DONAHUE described how he could juggle his schedule to make time for the ethics committee. REPRESENTATIVE DAVIDSON asked MR. DONAHUE why he wanted to serve on the ethics committee. MR. DONAHUE indicated he believed in the concept of public service and the public trust. They discussed his elected position on the school board as exercising objectivity, which he would use to make the ethics statute work. MR. DONAHUE thought the present ethics statute was better than the previous one, and they discussed whether it was enforceable. REPRESENTATIVE DAVIDSON asked about his opinion of the press, and MR. DONAHUE thought the press was a necessary evil. He described the necessity to have a source of information available, but he questioned the validity of some of the information. Number 483 REPRESENTATIVE DAVIDSON asked for an example of MR. DONAHUE'S characterization of the press as a "necessary evil." MR. DONAHUE used the news stories that were written about the complaints which were filed against a legislator and how the media feels duty bound to bring it to the public. He said the evil was because there was no development of data gathered from all sides, and the public doesn't know how much of the true facts were gathered. REPRESENTATIVE DAVIDSON asked if he knew of any elements of unfairness in the recent ethics claims against the two legislators mentioned in the press. MR. DONAHUE thought there was unfairness in both the accused and the accuser having parts of the story driving the press. REPRESENTATIVE DAVIDSON reviewed MR. DONAHUE'S experience in the Bureau of Indian Affairs and asked his opinion as to how the federal government dealt with aboriginal Americans. Number 537 MR. DONAHUE indicated it would be difficult to describe in such a short time frame, but characterized it as being fairer than other governments in other similar situation. he thought he had used sensitivity, without bias, in his dealings with aboriginal Americans. They both agreed it was a difficult question. Number 570 REPRESENTATIVE DAVIDSON asked MR. DONAHUE for his opinion of legislators, and MR. DONAHUE said he could use all of the adjectives in the world - both good and bad. REPRESENTATIVE DAVIDSON asked for specific labels, and MR. DONAHUE thought generally that legislators were hard-working and dedicated, but he gave some examples of the exception. In answer to a question, MR. DONAHUE characterized himself as a moderate, a fiscal conservative, and more liberal in the principal of law. REPRESENTATIVE DAVIDSON thanked him for his candid answers. REPRESENTATIVE KOTT asked MR. DONAHUE for his opinion on the difference between unethical conduct, immoral conduct, and conduct that violates the law. MR. DONAHUE opined they were not all the same. He explained moral law is between a person and his God, ethics is an individuals sense of right and wrong, except when it is governed by a statute, then it is the law. REPRESENTATIVE NORDLUND disclosed that HELEN DONAHUE was his bowling partner. He then asked about the former SENATOR PAUL FISCHER, for whom MRS. DONAHUE worked. He asked for MR. DONAHUE'S opinion about the accusations of ethical problems against SENATOR FISCHER. Number 653 MR. DONAHUE thought SENATOR FISCHER, as well as the present legislators charged with ethics violations, deserved to have all of the facts brought forward before a judgement is made. He was not in Kenai at the time some of the accusations were made, so he was unable to form an opinion. SENATOR TAYLOR posed a hypothetical case, in reference to the question from REPRESENTATIVE KOTT, of a major violation of the law while saving a person's life, and he asked MR. DONAHUE if, in his opinion, he had violated the ethics statute. MR. DONAHUE thought he would be accountable for his violations of the law, but he had done the right thing in that instances. SENATOR TAYLOR expressed pleasure at MR. DONAHUE'S answer and said it pointed out the choices people have to make under certain circumstances where violations of law may occur, yet, at the time it was ethical conduct. SENATOR TAYLOR reiterated a question he had asked DR. ANDERSON as to whether a citizen legislature should be held to a standard higher than ordinary citizen. Number 703 MR. DONAHUE said they were held to a higher standard by the ethics law which will be implemented by the Ethics Committee. He thought public servants should be held to a higher standard of ethics, and he used his tenure on the school board to explain what he meant. SENATOR TAYLOR expressed his concern at the confusion between standards of ethical considerations and conduct that might be criminal conduct. They discussed his previous hypothetical example of speeding to save a life as ethical. SENATOR TAYLOR posed a hypothetical situation in which both he and MR. DONAHUE had left a school board meeting and proceeded to get drunk, drove home, and got caught. SENATOR TAYLOR said that would have been a criminal act. MR. DONAHUE agreed it would, but he also thought it might be an unethical act because the school board sets a standard for the conduct of children. There ensued a discussion between them about the ethical implications of the situation, and how each might judge the ethics of the conduct. SENATOR TAYLOR asked MR. DONAHUE to expand on a phrase from his letter, "to protect the public's interest in preventing misuse of elected and appointed positions for personal gain." MR. DONAHUE said it was most difficult for a legislator to make decisions that might end up affecting the legislator in a financial way, and he outlined the possibilities for abuse. Number 775 SENATOR TAYLOR said it was also one of the easiest to identify as a violation, and MR. DONAHUE thought it was, unless there were levels in between. SENATOR TAYLOR remarked MR. DONAHUE would be the second person on the ethics committee with experience on a school board and asked if the experience was of benefit to him. MR. DONAHUE agreed the experiences were helpful, but doubted being on the ethics committee would be fun. SENATOR TAYLOR concluded the questioning by asking MR. DONAHUE if there was anything in his background important for the Judiciary Committees to know. MR. DONAHUE mentioned his two sons, whom he thought were important guys, and had been an important part of his life experience. He suggested he had learned from all the different jobs he had held and the people he knew. He also thought the Indian adage about respecting the elders and the wisdom of age was also important in his life. SENATOR TAYLOR thanked MR. DONAHUE for his candid and honest answers and closed the meeting. There being no further business to come before the committee, the meeting was adjourned at 5:18 p.m.