Legislature(2003 - 2004)

05/03/2004 09:04 AM House FSH

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
SB 69 - BOARD OF FISHERIES CONFLICTS OF INTEREST                                                                              
Number 0042                                                                                                                     
CHAIR SEATON announced  that the only order of  business would be                                                               
[CS  FOR   SENATE  BILL  NO.   69(RES)],  "An  Act   relating  to                                                               
participation  in  matters  before  the  Board  of  Fisheries  by                                                               
members of the board; and providing for an effective date."                                                                     
Number 0089                                                                                                                     
SENATOR TOM  WAGONER, Alaska State Legislature,  sponsor, relayed                                                               
that the  Joint Legislative Salmon Industry  Task Force developed                                                               
the concept embodied in SB 69  and asked him to sponsor the bill.                                                               
He  explained that  SB  69  "opens up  the  conflict of  interest                                                               
policy  for  the  Board  of   Fisheries  to  match  that  of  the                                                               
legislature."   Currently,  whenever members  of the  legislature                                                               
have a  conflict of interest  regarding a matter being  voted on,                                                               
they  simply declare  the conflict  and may  then be  required to                                                               
vote on  the matter; SB  69 would allow  members on the  Board of                                                               
Fisheries to follow  a similar procedure.  He opined  that such a                                                               
change will make the Board  of Fisheries more effective and allow                                                               
all its members to participate more fully.                                                                                      
SENATOR WAGONER noted that there  are seven public members on the                                                               
Board of Fisheries,  and suggested that the  current practice can                                                               
sometimes result  in decisions being  made by only  five members.                                                               
He also  suggested that sometimes  different factions  within the                                                               
Board of Fisheries strive  towards "eliminating the participation                                                               
of  one  board  member  versus another,"  adding  that  both  the                                                               
administration and  those in the commercial  fishing industry are                                                               
unhappy  with  such a  practice.    He  opined that  the  fishing                                                               
resources  of Alaska  should be  managed on  a biological  basis;                                                               
however,  because of  various political  reasons,  such does  not                                                               
always occur.   He  offered his  belief that SB  69 will  allow a                                                               
return  to management  based  on biology  and  allow those  board                                                               
members  who are  most  knowledgeable on  a  particular issue  to                                                               
participate fully.                                                                                                              
SENATOR WAGONER remarked:                                                                                                       
     The board process we have in  Alaska is not the best we                                                                    
     could have,  but it's better  than anybody else  in the                                                                    
     nation  has to  manage  their fishery;  ... this  board                                                                    
     process allows  the maximum input through  the regional                                                                    
     and local advisory boards and  their ability to present                                                                    
       issues to the board, and so it's a very, very fair                                                                       
     process and it's a very democratic process.                                                                                
Number 0570                                                                                                                     
DIANA  COTE, Executive  Director, Board  of Fisheries,  explained                                                               
that currently, the process the  Board of Fisheries undertakes is                                                               
broken down  into two main  aspects:  information  gathering, and                                                               
deliberation  and  voting.    Public   testimony  occurs  in  the                                                               
information  gathering  part  of  the  process.    The  Board  of                                                               
Fisheries  also   has  a  committee  process   whereby  different                                                               
proposals  are first  examined  in detail  by  members that  have                                                               
formed   different  committees.     The   committee  process   is                                                               
considered an aspect of information  gathering.  Currently, it is                                                               
during  the deliberation  and  voting part  of  the process  that                                                               
members with  a conflict  of interest  don't get  to participate.                                                               
For  example, if  a member  or  his/her spouse  or family  member                                                               
holds a permit in a  particular fishery, he/she cannot deliberate                                                               
or vote on an issue involving that type of fishery.                                                                             
MS. COTE noted  that currently, all board  members, regardless of                                                               
potential  conflicts   of  interest,   can  participate   in  the                                                               
information gathering part  of the process, and  this is helpful,                                                               
she remarked, because when someone  is familiar with a particular                                                               
fishery, he/she is  more likely to ask pertinent  questions.  She                                                               
also noted  that currently, for  any measure to pass,  there must                                                               
be at least four votes in  favor of the measure regardless of how                                                               
many members  actually get  to vote.   When members  are excluded                                                               
from voting because of a conflict  of interest - as occurs in the                                                               
current  procedure -  it  can  become quite  difficult  to get  a                                                               
measure passed.                                                                                                                 
SENATOR WAGONER interjected to point  out that currently, in such                                                               
a  situation, the  members who  do get  to vote  on a  particular                                                               
measure end up being those  that are less knowledgeable about the                                                               
specific issues  involved.  Under  the change proposed by  SB 69,                                                               
members  would  declare  any  conflict  of  interest  they  have,                                                               
contribute to the  deliberations, and then vote.   He opined that                                                               
this  change will  open up  the process  to the  scrutiny of  the                                                               
public, and suggested  that it will result  in biologically based                                                               
decisions  being made,  which will,  in  turn, prevent  fisheries                                                               
from being destroyed as has happened in the past.                                                                               
CHAIR  WAGONER  asked whether  the  current  practice acts  as  a                                                               
disincentive for  people who are  knowledgeable in  the fisheries                                                               
industry to serve on the Board of Fisheries.                                                                                    
SENATOR WAGONER said he has not heard that said.                                                                                
REPRESENTATIVE HEINZE mentioned that  on the surface, the changes                                                               
proposed by  SB 69 appear  to make sense,  but noted that  she is                                                               
troubled by the  letter from the Alaska Outdoor  Council (AOC) in                                                               
opposition to SB 69.  She asked Senator Wagoner to comment.                                                                     
SENATOR WAGONER suggested  that the AOC's opposition  could be an                                                               
aspect of  the basic disagreements  between sport  and commercial                                                               
users, and  mentioned that some  members of the AOC  have relayed                                                               
to him  a concern that  SB 69 will  negate the McDowell  v. State                                                             
decision.  He  opined that SB 69 won't affect  any court decision                                                               
that he is  aware of, and noted that under  the current conflict-                                                               
of-interest  procedure, members  on  the Board  of Fisheries  are                                                               
prevented  from voting  approximately  12-14 times  a  year.   In                                                               
response  to a  question, he  relayed  that the  AOC does  attend                                                               
Board  of Fisheries  meetings, listed  several other  groups that                                                               
often attend as well, and gave  a brief synopsis of how the Board                                                               
of Fisheries deals with issues in the Cook Inlet region.                                                                        
Number 1301                                                                                                                     
MS.  COTE,  in response  to  questions,  reiterated her  comments                                                               
regarding  how  the  Board of  Fisheries  operates,  adding  that                                                               
committees are usually made up of  two or three members, and that                                                               
when  a committee  reports back  to  the board,  the report  will                                                               
indicate  whether  or  not there  is  consensus  among  committee                                                               
members and panel  members and, if not, what  the differing views                                                               
are.    In  response  to  further  questions,  she  relayed  that                                                               
currently during  the deliberative  process, when members  have a                                                               
conflict  of  interest, they  physically  get  up and  leave  the                                                               
table,  and  then only  offer  comments  to the  remaining  board                                                               
members  during breaks  in the  deliberative process.   She  also                                                               
outlined the current schedule of  compensation due board members,                                                               
and  estimated the  yearly cost  for  the Board  of Fisheries  to                                                               
conduct business as approximately  $10,000 for meeting between 50                                                               
and 100 days a year.                                                                                                            
SENATOR  WAGONER  mentioned  that  the  chair  of  the  Board  of                                                               
Fisheries  generally gets  the most  compensation because  he/she                                                               
spends more time on issues than other board members.                                                                            
REPRESENTATIVE OGG asked how the  public will perceive the change                                                               
in  procedure when  the issue  is one  of how  a fishery  will be                                                               
MS. COTE said  that such would be hard to  predict, but suggested                                                               
that in general, the public  will appreciate having those members                                                               
most familiar with an issue be able to vote.                                                                                    
REPRESENTATIVE  OGG  indicated  that  he is  concerned  with  the                                                               
public's perception of the proposed change.                                                                                     
SENATOR  WAGONER, in  response to  comments,  offered his  belief                                                               
that  board members  do  a very  good job  of  looking at  issues                                                               
fairly and  don't get  wrapped up in  the contention  between the                                                               
commercial and sport factions of the fishing industry.                                                                          
REPRESENTATIVE  GARA suggested  that an  almost perfect  solution                                                               
would  be to  allow all  board members  to deliberate  on issues,                                                               
even  if they  have  a  conflict of  interest  and could  benefit                                                               
financially  from a  particular  outcome, and  then  just not  be                                                               
allowed  to  vote on  those  issues.    Such would  maintain  the                                                               
credibility of the  organization, and allow the  board to receive                                                               
the information it needs to make  an informed decision.  He asked                                                               
whether there would be a downside to such a change.                                                                             
MS. COTE opined that such a  change would not add anything to the                                                               
current  process because  any member  that is  currently excluded                                                               
from voting  has already given  his/her views and  information to                                                               
the remainder  of the board before  deliberations begin; allowing                                                               
for him/her to repeat that  information during deliberations will                                                               
not necessarily add  anything to the process.  She  added that in                                                               
her experience,  most members,  even when  they have  a financial                                                               
interest in  an issue,  want to  do what's  best for  the fishery                                                               
under  debate and  are very  careful to  be fair  and open.   She                                                               
suggested that  the current  process with  regard to  conflict of                                                               
interest has  made it difficult  to find people willing  to serve                                                               
on the Board of Fisheries.                                                                                                      
SENATOR  WAGONER  directed attention  to  page  2, line  19,  and                                                               
pointed out  that the proposed change  has a sunset date  of June                                                               
30, 2009; thus,  if the new procedure works,  the legislature can                                                               
extend it.                                                                                                                      
Number 2195                                                                                                                     
JERRY  McCUNE, United  Fishermen  of Alaska  (UFA), after  noting                                                               
that a  letter of support  from the  UFA is in  members' packets,                                                               
said that  the UFA supports  the bill  and thinks it's  vital for                                                               
all members  to take part  in all aspects of  the decision-making                                                               
process,  including  voting.    He  echoed  Ms.  Cote's  comments                                                               
regarding the difficulty of finding  people to serve on the board                                                               
under the current conflict of interest rules.  In conclusion, he                                                                
expressed confidence in the Board of Fisheries to arrive at fair                                                                
Number 2284                                                                                                                     
PAUL SHADURA, President, Kenai Peninsula Fishermen's Association                                                                
(KPFA), expressed the KPFA's support of SB 69 and Senator                                                                       
Wagoner's efforts.  He said:                                                                                                    
     We believe that  there are those in our  state who will                                                                    
     commit their  time, for  up to  three years,  and offer                                                                    
     their  expertise  to  promote   the  wellbeing  of  the                                                                    
     residents  of  the  state of  Alaska;  they  should  be                                                                    
     allowed to  give valuable  information that  they alone                                                                    
     have,  they should  be able  to debate,  ask questions,                                                                    
     and help  clarify issues.   We  believe that  given the                                                                    
     fact  that this  board  promulgates regulations  around                                                                    
     the  entire state  for three-year  intervals, it  would                                                                    
     seem  extremely  unlikely  that  an  individual  [would                                                                    
     place]  themselves  in  this  position  for  their  own                                                                    
     specific geographical [or] methodological gain.                                                                            
     What type of  state board would we have if  we deny the                                                                    
     expertise  of   individuals,  with  ...   [a]  specific                                                                    
     vocation,  from  serving   on  their  industry-directed                                                                    
     board  - no  beauticians  on the  beautician board,  no                                                                    
     doctors on the physician's  board, no active commercial                                                                    
     fishermen on the  Board of Fisheries.   With only seven                                                                    
     members  on this  board, [and  in] such  a tremendously                                                                    
     huge  state with  all its  resource complexities,  it's                                                                    
     imperative    that   different    knowledgeable   users                                                                    
     contribute  to  the   state's  rules  and  regulations.                                                                    
     It'll allow a balance, a  sense of fairness, a sense of                                                                    
     justice; please support this bill.  Thank you.                                                                             
CHAIR SEATON, after ascertaining that no one else wished to                                                                     
testify, closed public testimony on SB 69.                                                                                      
Number 2382                                                                                                                     
CHAIR SEATON made a motion to Adopt Amendment 1, labeled 23-                                                                    
LS0313\I.3, Cook, 3/30/04, which read:                                                                                          
     Page 1, line 7:                                                                                                            
          Delete "requires"                                                                                                     
          Insert "allows"                                                                                                       
     Page 2, line 11:                                                                                                           
          Delete "matters"                                                                                                      
          Insert "the matter"                                                                                                   
          Following "board":                                                                                                    
          Insert "if the matter (1) directly involves                                                                           
     activities conducted  under a permit or  license issued                                                                    
     under AS 16.05 or AS 16.43, or  for sport fish guiding;                                                                    
     and  (2) does  not  involve the  personal or  financial                                                                    
     interests of a person the member is paid to represent"                                                                     
Number 2394                                                                                                                     
REPRESENTATIVE WILSON objected.                                                                                                 
CHAIR SEATON explained  that Amendment 1 would make it  so that a                                                               
member  with a  conflict may  vote but  will not  be required  to                                                               
vote, and  will specify that  the conflict must  directly involve                                                               
activities conducted  under a permit  or license issued  under AS                                                               
16.05, AS  16.43, or for sport  fishing and must not  involve the                                                               
personal or financial interest of a  person the member is paid to                                                               
represent.    The latter  aspect  of  Amendment 1  would  prevent                                                               
members that are  also paid lobbyists from voting on  an issue of                                                               
financial interest to their clients.                                                                                            
CHAIR SEATON opined  that Amendment 1 is necessary  because SB 69                                                               
is making a big change.   He noted that the North Pacific Fishery                                                               
Management  Council  (NPFMC)  is  exempt from  all  conflicts  of                                                               
interest because, unlike the Board  of Fisheries, it is simply an                                                               
advisory panel and does not actually create any regulations.                                                                    
Number 2637                                                                                                                     
REPRESENTATIVE GARA  made a motion  to amend Amendment 1  so that                                                               
it says  in part, "the  member is paid,  or has been  paid within                                                               
the  previous year,  to represent";  such a  change would  ensure                                                               
that  the member  would be  precluded from  voting if  he/she has                                                               
been paid within  the year to represent a client  with a personal                                                               
or financial interest.                                                                                                          
Number 2670                                                                                                                     
CHAIR SEATON objected and asked Senator Wagoner to comment.                                                                     
SENATOR  WAGONER indicated  that he  did  not see  any reason  to                                                               
exclude a member  from voting just because he/she  was formerly a                                                               
paid  lobbyist.   He  expressed  a  preference for  an  unaltered                                                               
Amendment 1.                                                                                                                    
Number 2753                                                                                                                     
REPRESENTATIVE GARA  withdrew the  amendment to Amendment  1, but                                                               
expressed  a  concern  that  if  a  member  is  also  a  contract                                                               
lobbyist, his/her client  could get around Amendment  1 simply by                                                               
not paying  the lobbyist for  the period  of time during  which a                                                               
particular issue is before the board.                                                                                           
SENATOR  WAGONER offered  his  belief that  such  a situation  is                                                               
unlikely to happen, that the  governor will appoint people with a                                                               
certain amount of integrity.                                                                                                    
CHAIR SEATON concurred.                                                                                                         
REPRESENTATIVE OGG  asked whether  a subsistence permit  would be                                                               
covered under Amendment 1.                                                                                                      
CHAIR SEATON offered his understanding  that having such a permit                                                               
does not currently exclude a member from voting.                                                                                
MS.  COTE concurred,  adding that  it  is viewed  similarly to  a                                                               
sport fishing license.                                                                                                          
TAPE 04-27, SIDE B                                                                                                            
Number 2932                                                                                                                     
CHAIR SEATON, in response to  a comment, expressed a concern that                                                               
if members with a conflict of  interest are allowed to vote, then                                                               
there  could be  more pressure  put  on the  governor to  appoint                                                               
people who are paid to  represent a particular interest group and                                                               
thus  change  the  complexion  of  the board.    He  opined  that                                                               
Amendment 1 will prevent such  from happening, and noted that the                                                               
sponsor is amenable  to Amendment 1.  In response  to a question,                                                               
he offered his belief that a  member who is a paid representative                                                               
of  a  person   or  organization  that  might   benefit  from  an                                                               
allocation decision  would have  no qualms  about voting  for the                                                               
benefit of his/her client.                                                                                                      
REPRESENTATIVE GARA surmised that such  a person would in fact be                                                               
obligated to  vote in the  best interest of  his her client.   He                                                               
characterized Amendment 1 as addressing a "graphic" situation.                                                                  
MS.  COTE,  in response  to  a  question,  said that  most  board                                                               
members are individuals rather than paid industry personnel.                                                                    
SENATOR WAGONER, in response to  a question, confirmed that he is                                                               
amenable  to  Amendment  1,  and  offered  his  belief  that  the                                                               
legislature's current authority to  confirm appointees provides a                                                               
safeguard against paid lobbyists being  appointed to the Board of                                                               
Number 2472                                                                                                                     
A roll call vote was  taken.  Representatives Samuels, Ogg, Gara,                                                               
and Seaton voted in favor  of Amendment 1.  Representative Wilson                                                               
voted against it.   Therefore, Amendment 1 was adopted  by a vote                                                               
of 4-1.                                                                                                                         
CHAIR SEATON,  in response to  a question, reiterated  Ms. Cote's                                                               
opinion  that  allowing members  with  conflicts  of interest  to                                                               
participate  in deliberations  while still  not allowing  them to                                                               
vote  would  not result  in  any  discernable difference  in  the                                                               
current decision-making process.                                                                                                
Number 2362                                                                                                                     
REPRESENTATIVE OGG moved to report  CSSB 69(RES), as amended, out                                                               
of   committee   with    individual   recommendations   and   the                                                               
accompanying fiscal  notes.  There  being no objection,  HCS CSSB
69(FSH)  was  reported  from  the   House  Special  Committee  on                                                               

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