Legislature(2003 - 2004)

03/12/2003 01:31 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
               SB  45-LB&A CRIMES AND COOPERATION                                                                           
SENATOR LYDA GREEN  introduced SB 45 saying it's  helpful that the                                                              
Legislative  Budget and Audit  Committee (LB&A)  has been  able to                                                              
obtain  and compile  information,  present it  to the  Legislature                                                              
and  make   recommendations.    In   the  past,  there   has  been                                                              
reluctance  to provide full  information  and some employees  have                                                              
been  told  not  to  provide  the  information.    It  is  a  very                                                              
difficult  step  for an  employee  to  disobey the  employer  even                                                              
though they are required by law to participate with LB&A                                                                        
Currently  there are  no  penalties for  withholding  information,                                                              
but SB 45  sets in statute  first and second degree  penalties for                                                              
withholding information.   This  also includes persons  serving on                                                              
committees  or in appointed  positions who  may not be  considered                                                              
employees  but  have  public  affiliation   and  are  required  to                                                              
provide full  and truthful information.   This legislation  points                                                              
out the importance of the requirement to provide information.                                                                   
This bill adds two sections to Section 1. AS 11.56.                                                                             
   · Sec. 11.56.870 Hindering the Legislative Budget and Audit                                                                  
     Committee in the first degree.                                                                                             
   · Sec. 11.56.880 Hindering the Legislative Budget and Audit                                                                  
     Committee in the second degree.                                                                                            
SENATOR  GREEN  explained  page  2,  line 11,  amends  Sec.  2  AS                                                              
24.20.201,  and  would  provide  the process  when  a  person  has                                                              
requested privilege  and the  procedure to  follow once  the claim                                                              
is made  that the  information is  privileged.   A superior  court                                                              
judge  would   determine  whether   the  claim  is   complete  and                                                              
SENATOR  FRENCH   said  Senator   Green's  experience   must  have                                                              
convinced her this  proposed law has been broken in  the past.  He                                                              
asked her to elaborate, without disclosing names.                                                                               
SENATOR  GREEN said  she did  not  want to  compromise the  person                                                              
that shared  the information  with her because  it was  an awkward                                                              
moment in  that individual's life.   All government  employees are                                                              
supposed  to be  truthful  and ethical  and  some in  professional                                                              
positions    are   professionally    prohibited   from    bringing                                                              
information  forward   and  to  do  so  would   be  an  additional                                                              
violation.    She  said she  was  convinced  the  information  she                                                              
received was true and complete.                                                                                                 
SENATOR  FRENCH asked  why  this was  confined  to the  LB&A.   He                                                              
questioned why this  wouldn't it be just as egregious  for a state                                                              
employee  to block  or withhold  information from  someone on  the                                                              
Finance Committee or the Judiciary Committee.                                                                                   
SENATOR GREEN  replied she didn't  know if that was  covered under                                                              
another  statute.  She  feels  the   committee  process  is  quite                                                              
compelling  and it  is  a requirement  to  come  forward with  the                                                              
truth.    The   committee  chair  with  the   concurrence  of  the                                                              
presiding  officer   has  the  ability  to  swear   in  witnesses.                                                              
Perhaps that  is the  mechanism one  would use  if they  felt that                                                              
the information  was not  forthright and  complete.  She  couldn't                                                              
speak to expanding the scope of the bill.                                                                                       
SENATOR  FRENCH  commented that  once  he started  thinking  about                                                              
that he questioned  why this wouldn't apply more  broadly. Being a                                                              
former prosecutor,  he went  to the statute  books and  found five                                                              
statutes   that   would   cover    different   aspects   of   this                                                              
noncompliance or information-hiding problem.                                                                                    
Sec.  11.56.850.  Official  misconduct.   [(a)  A  public  servant                                                              
commits  the  crime of  official  misconduct  if, with  intent  to                                                              
obtain  a benefit  or to  injure or  deprive another  person of  a                                                              
benefit, the public servant                                                                                                     
     (1) performs an act relating to the public servant's office                                                                
but   constituting  an   unauthorized  exercise   of  the   public                                                              
servant's   official  functions,   knowing   that   that  act   is                                                              
unauthorized; or                                                                                                                
     (2) knowingly refrains from performing a duty which is                                                                     
imposed upon the  public servant by law or is  clearly inherent in                                                              
the nature of the public servant's office.]                                                                                     
Sec.  11.56.510. Interference  with official  proceedings. [(a)  A                                                              
person   commits  the   crime   of  interference   with   official                                                              
proceedings if the person                                                                                                       
     (1) uses force on anyone, damaged the property of anyone,                                                                  
or threatens anyone with intent                                                                                                 
     (A) improperly influence a witness or otherwise influence                                                                  
the testimony of a witness;]                                                                                                    
Sec.  11.56.540 Tampering  with  a witness  in  the first  degree.                                                              
[(a) A  person commits the  crime of tampering  with a  witness in                                                              
the first  degree if the person  knowingly induces or  attempts to                                                              
induce a witness to                                                                                                             
     (1) testify falsely, offer misleading testimony, or                                                                        
unlawfully withhold testimony in an official proceeding; or                                                                     
     (2) be absent from a judicial proceeding to which the                                                                      
witness has been summoned.]                                                                                                     
Sec. 11.56.610.  Tampering with  physical evidence. [(a)  A person                                                              
commits  the crime  of  tampering with  physical  evidence if  the                                                              
     (1) destroys, mutilates, alters, suppresses, conceals, or                                                                  
removes  physical evidence  with intent  to impair  its verity  or                                                              
availability   in   an   official   proceeding   or   a   criminal                                                              
     (2) makes, presents, or uses physical evidence, knowing it                                                                 
to be false, with  intent to mislead a juror who  is engaged in an                                                              
official  proceeding or  a public  servant  who is  engaged in  an                                                              
official proceeding or a criminal investigation;                                                                                
     (3) prevents the production of physical evidence in an                                                                     
official  proceeding or  a criminal  investigation by  the use  of                                                              
force, threat, or deception against anyone; or                                                                                  
     (4) does any act described by (1), (2), or (3) of this                                                                     
subsection with intent  to prevent the institution  of an official                                                              
SENATOR FRENCH  said this is if  someone actually took  a piece of                                                              
paper and hid it so some other employee could not find it.                                                                      
Sec.  11.56.820.  Tampering  with  public records  in  the  second                                                              
degree. [(a) A  person commits the crime of tampering  with public                                                              
records in the second degree if the person                                                                                      
     (1) knowingly makes a false entry in or falsely alters a                                                                   
public record;                                                                                                                  
     (2) knowingly destroys, mutilates, suppresses, conceals,                                                                   
removes,  or   otherwise  impairs   the  verity,  legibility,   or                                                              
availability  of a public  record, knowing  that the person  lacks                                                              
the authority to do so; or                                                                                                      
     (3) certifies a public record setting out a claim against a                                                                
government agency,  of the property  of a government  agency, with                                                              
reckless  disregard  of  whether  the claim  is  lawful,  or  that                                                              
payment  of the  claim  is not  authorized in  the  budget of  the                                                              
government agency.]                                                                                                             
SENATOR  FRENCH  said,  in  looking  at  the  issue  as  a  former                                                              
prosecutor, it  seems like there  is someway to punish  people who                                                              
are  actively subverting  the  public  process with  the  statutes                                                              
currently on  the books.  He said  he would share that  and see if                                                              
there  is something  he is  missing, something  special about  the                                                              
LB&A that really needs its own statute.                                                                                         
SENATOR GREEN  replied the  purpose of  LB&A   is unique  in state                                                              
government.   It  is  the agency  the  Legislature  relies on  for                                                              
oversight,  review, specific  questions,  a  general direction,  a                                                              
suspicion that someone  might have, information to  be gathered on                                                              
the  functioning  of  an  agency or  department  or  a  particular                                                              
function being carried  out.  Employees are required  to cooperate                                                              
with Legislative  Budget  and Audit,  but there  is no penalty  if                                                              
the  employee does  not participate  or  if an  employer tells  an                                                              
employee they  are not to  participate and give  full information.                                                              
This  legislation   provides  a  penalty  and  that   is  loss  of                                                              
CHAIR SEEKINS noted  the legislation said hindering  and hindering                                                              
has a  broader scope  than hiding, destroying  or defrauding.   He                                                              
asked  if this is  where someone  is deliberately  setting  out to                                                              
hinder an investigation by LB&A.                                                                                                
SENATOR GREEN said that was correct.                                                                                            
SENATOR OGAN  said a class C  felony is the penalty  for hindering                                                              
in the  first degree.   He referred  to Sec. 11.56.610.  Tampering                                                              
with physical  evidence.   He said  there was  a shocking  case in                                                              
the   valley  [Mat-Su]   where   one  person   was  murdered   and                                                              
dismembered and a  number of teenagers spread the  body around the                                                              
valley.   He  thought the  teenagers were  charged with  tampering                                                              
with evidence and  that was a serious crime.  He  pointed out this                                                              
legislation has the  same degree of felony.  He  was concerned the                                                              
ramifications of  being a convicted  felon for hindering  the LB&A                                                              
don't rise  to the  same level  as hiding  body parts  of somebody                                                              
that was hacked up  with a chainsaw.  He asked if  a person with a                                                              
class C  felony would  lose the  right to own  a weapon,  vote and                                                              
things  like that.    He had  concerns the  penalty  was a  little                                                              
SENATOR   GREEN  said   she  thought   the   Legislature  had   an                                                              
expectation  when information  is required  about finances  or how                                                              
programs  are being run.   When  auditors go  into an office  with                                                              
the  sole  purpose  of finding  information  the  least  they  can                                                              
expect  is  being  given  full,  complete  and  true  information.                                                              
Perhaps this  crime does not  rise to the  occasion of  other very                                                              
heinous  crimes but  other white-collar  crimes are  also class  C                                                              
SENATOR OGAN  paraphrased Sec.  11.56.850. Official  misconduct. A                                                              
person commits  the crime of  official misconduct if,  with intent                                                              
to obtain a  benefit or to injure  or deprive another  person or a                                                              
public  servant  does  a  couple  of things  knowing  the  act  is                                                              
unauthorized  or does something  that refrains  from performing  a                                                              
public duty  and that is  a class A misdemeanor.   He said  he was                                                              
used to  being lied to by  people.  That  is part of what  this is                                                              
about and  it should  not be condoned.   He  thought the  LB&A has                                                              
the power to subpoena  and if a person lied under  a subpoena that                                                              
might raise it to the level of a felony.                                                                                        
SENATOR GREEN  informed the  committee there  was someone  on line                                                              
to answer questions.                                                                                                            
1:45 pm                                                                                                                       
MR.  STEVE  BRANCHFLOWER,  Director, Office  of  Victims'  Rights,                                                              
told  committee  members he  was  a  prosecutor in  Anchorage  for                                                              
almost  30 years.   Over  the years  and  specifically during  the                                                              
last three  years as  the Director  of the  Alaska Medicaid  Fraud                                                              
Control Unit,  there have  been times  when he strongly  suspected                                                              
or had  positive proof that  individuals within state  government,                                                              
in  the  executive branch,  instructed  subordinate  employees  to                                                              
either  disregard specific  requests made  by the  LB&A or  to not                                                              
cooperate.   One instance  was pretty egregious.   He  checked the                                                              
statutes  to see if  there was  a remedy  and was disappointed  to                                                              
find  it  was not  commensurate  to  the  offense.   He  said  one                                                              
question that  was asked was  what are  the present tools  to deal                                                              
with the situation.                                                                                                             
MR.  BRANCHFLOWER stressed  this issue  does exist,  not only  for                                                              
the LB&A  but also for  the entire Legislature.   It is  a problem                                                              
that is  endemic to the  system.  There  are a couple  of statutes                                                              
that deal with it,  but in his view they are  inadequate.  He gave                                                              
the example  of AS  24.25.040, which  deals with subpoenas  issued                                                              
by the  Legislature.   The enforcement  mechanisms identified  are                                                              
limited to  the arrest  of the person  by the sergeant-at-arms  to                                                              
take the  person before the  Legislature.  Criminally  prosecuting                                                              
the person  for disobeying the subpoena  is in Sec.  24.25.080 and                                                              
requires the cooperation  and initiative of the  executive branch.                                                              
He knew  of no means  within the legislative  body to  enforce the                                                              
MR. BRANCHFLOWER  said he  looked at  the statutes Senator  French                                                              
mentioned and:                                                                                                                  
     While I  can tell you that  while they are  pretty sharp                                                                   
     tools,  that is  pretty efficient  tools,  they don't  -                                                                   
     none  of them  really  addresses  the situation  that  I                                                                   
     experienced  that  is  where  behind-the-scenes  conduct                                                                   
     was   engaged   in   by   supervisors    to   discourage                                                                   
MR. BRANCHFLOWER said  if you look at official  misconduct in Sec.                                                              
11.56.850,  the problem  is that  the  defendant has  to act  with                                                              
intent  to obtain  a benefit.   That  could be  difficult to  show                                                              
because  often times  the  motivation  of superiors  within  state                                                              
government  is  difficult to  ascertain.    If it  were  something                                                              
physical  such as  money or  a gift, it  might be  easier.   Often                                                              
times  low-level   supervisors   are  following  instructions   or                                                              
enforcing  the  will  or  pleasure  of  their  supervisor  thereby                                                              
creating layers that must be worked through.                                                                                    
Sec.  11.56.610  Tampering  with   physical  evidence  deals  with                                                              
physical  evidence.   This criminalizes  a  defendant who  tampers                                                              
with  some physical  evidence like  a  bloody garment  or maybe  a                                                              
check.  What SB  45 is intended to reach are  people who engage in                                                              
conduct and bring  to bear forces that they ought  not to bring to                                                              
bear in terms of persuasion and intimidation.                                                                                   
He  thought   Senator  French   also  mentioned  Sec.   11.56.540.                                                              
Tampering  with a witness  in the  first degree.   The  problem he                                                              
saw was  this requires  the dependency  of a judicial  proceeding,                                                              
which is  defined somewhere in the  statutes.  Absent  that, there                                                              
would  not  be a  condition  precedent  to charging  someone  with                                                              
tampering with  a witness;  the person is  not a witness  so there                                                              
is no judicial proceeding.                                                                                                      
MR.  BRANCHFLOWER  reiterated  the   kind  of  conduct  SB  45  is                                                              
intended to reach  is behind the scenes.  An employee  is put in a                                                              
precarious situation  if they are told not to cooperate  or not to                                                              
provide information.   Should  the employee  cooperate, he  or she                                                              
may lose their job  and although they may have  some protection in                                                              
terms  of  the  Whistleblower  Act,   it  complicates  their  life                                                              
significantly. They  would be marked and their future  would be in                                                              
He  said  there  were  some  other  statutes  as  well  that  were                                                              
mentioned that he  didn't catch, but in each  instance the present                                                              
tools are inadequate.                                                                                                           
With regard  to the  difference between  witness tampering  and SB
45, he  gave the example  where a person  commits first  degree if                                                              
he commits the  second degree and certain other  circumstances are                                                              
present  such  as  the  presence  of  a  dangerous  instrument  or                                                              
weapon.   The  same  is  true in  burglary  in the  second  degree                                                              
versus  breaking into  a warehouse.   Certain  things are  present                                                              
for an increase  in severity from a burglary second  to a burglary                                                              
MR.  BRANCHFLOWER said  hindering  a  witness is  the  same.   The                                                              
lesser  crime,  which  is  the  class  A  misdemeanor,  is  called                                                              
hindering the  LB&A Committee  in the second  degree. SB  45 lists                                                              
the conduct.                                                                                                                    
     The reason  the first  degree is a  C felony is  because                                                                   
     it  is aimed  not  at the  conduct but  at  the kind  of                                                                   
     person   who  engages   in  the  conduct.     The   only                                                                   
     difference  between  second   degree  and  first  degree                                                                   
     appears on  line 7 of  page 1.   If the perpetrator,  if                                                                   
     the  defendant  is  a  public   servant,  that  term  is                                                                   
     defined in  11.81.900, then  that person is  culpable of                                                                   
     a C felony.                                                                                                                
     If you look  at 11.81.900... sub-section 53  defines the                                                                   
     term public  servant very, very broadly and  it includes                                                                   
     those people  who would  be in a  sort of a  supervisory                                                                   
     position....    The legislative  intent  between  making                                                                   
     the  distinction between  a misdemeanor  and a C  felony                                                                   
     would  be  to... to  a  greater  degree people  who  are                                                                   
     supervisors  who discourage  their  underlings or  their                                                                   
     people  they supervise  from cooperating.   That is  not                                                                   
     to  say that  tampering  with physical  evidence  should                                                                   
     not  also be  a  C felony  but tampering  with  physical                                                                   
     evidence deals  with physical evidence, this  deals with                                                                   
     conduct on the part of supervisors.                                                                                        
MR. BRANCHFLOWER  said  SB 45 fixes  another  problem.  When  LB&A                                                              
requests   information  from   the  executive   branch  they   are                                                              
occasionally  met   with  claims  of  privilege.     There  is  no                                                              
mechanism  present  in  the  law  to  arbitrate  those  claims  of                                                              
privilege  and the information  is never  passed on.   SB  45 sets                                                              
out the procedure.                                                                                                              
MR.  BRANCHFLOWER summarized  saying SB  45 puts  some teeth  into                                                              
the language  of Sec. 24.22.01  that gives  LB&A the right  to ask                                                              
for full  cooperation and would  give an enforcement  mechanism in                                                              
the form of a new criminal statute.                                                                                             
CHAIR SEEKINS  asked if he knew  of any other statutes  that might                                                              
cover hindering an investigation.                                                                                               
MR. BRANCHFLOWER  said  when he  had the experience  where  it was                                                              
very  clear  a  supervisor  had  instructed  an  employee  not  to                                                              
cooperate and not  to provide information, he looked  at state and                                                              
federal statutes  and contemplated  going  to the U.S.  Attorney's                                                              
Office  and  providing  information.    At that  time,  he  became                                                              
convinced of the need for SB 45.                                                                                                
CHAIR  SEEKINS said  a  public employee  is  defined in  39.52.960                                                              
(20).     "Public  employee   means  a  permanent,   probationary,                                                              
seasonal,  temporary, provisional,  or  non-permanent employee  of                                                              
an agency, whether  in the classified, partially  exempt or exempt                                                              
service."   He  asked if  that was  a  big enough  lasso to  catch                                                              
MR.   BRANCHFLOWER  said   it  is,   it  is   the  lowest   common                                                              
denominator.   The next level  up would  be public servant.   That                                                              
is the  reason for  the use of  the words  "public servant  in the                                                              
first degree" and "public employee in the second."                                                                              
SENATOR OGAN asked what is associated with a class C felony.                                                                    
MR.  BRANCHFLOWER said  a  class  C felony  is  the least  serious                                                              
felony.   It is a non-presumptive  felony with the  possible range                                                              
of zero  jail time  to a  maximum of  five years.   There  is also                                                              
provision for  a fine,  which is  frequently imposed.  Absent some                                                              
serious conditions,  a person  convicted of a  class C  felony who                                                              
is  a first  offender  with no  criminal  history  will receive  a                                                              
probationary  term   as  opposed  to   jail  time.     If  serious                                                              
conditions  were present,  it would  probably result  in a  higher                                                              
conviction than a C felony.                                                                                                     
He inserted  a provision  in SB  45 that states  that if  a public                                                              
employee is  convicted, they immediately  forfeit their  office or                                                              
position.   If  someone is  convicted, they  ought to  immediately                                                              
have  nothing else  to  do with  state government  independent  of                                                              
what  else   may  happen  to  them   in  terms  of   the  criminal                                                              
SENATOR  OGAN asked  what  the ramifications  are  for voting  and                                                              
owning weapons for class C felons.                                                                                              
2:00 pm                                                                                                                       
MR. BRANCHFLOWER  assumed they were talking about  first offenders                                                              
because  otherwise they  probably  would not  be state  employees.                                                              
He also assumed  most state employees don't have  any prior felony                                                              
convictions  although  there  may   be  some  exceptions.    First                                                              
offenders   get  a   probationary   sentence   with  a   suspended                                                              
imposition  of sentence.   There may  be some conditions  attached                                                              
such as attending  an alcohol rehabilitation program  or some sort                                                              
of  a rehabilitative  program, abide  by  conditions of  probation                                                              
and make restitution.   At the end of their probationary  term the                                                              
conviction is set  aside and the person is restored  to his status                                                              
prior to the conviction.                                                                                                        
If the person  was required to  fill out an application  that asks                                                              
if they  stand convicted of  any crime  the truthful answer  is no                                                              
because  the conviction  has  been set  aside.   A  lot of  times,                                                              
depending  upon what  the circumstances  are,  the application  is                                                              
worded in a way  to take into account those people  who have had a                                                              
suspended  imposition  of  sentence.    The wording  is  a  little                                                              
different  in  order to  capture  the  true  content of  what  has                                                              
happened.   For  example,  in the  state  trooper application  not                                                              
only does it  ask if they had  any prior convictions it  will also                                                              
ask  if they  have ever  been convicted  of  a crime  and had  the                                                              
conviction set  aside.  The  short answer  is convictions for  a C                                                              
felony  not only  result in  mostly probationary  time but  almost                                                              
always,  unless  there  is  some   physical  injury  or  something                                                              
unusual, result in suspended imposition of sentence.                                                                            
SENATOR  OGAN  said,  "That  was  a  very  skilled  answer  by  an                                                              
obviously  skilled  attorney.    You  didn't  answer  my  question                                                              
MR.  BRANCHFLOWER said,  "OK I'll  try  my best.   As  far as  the                                                              
SENATOR  OGAN asked  whether  a  person convicted  of  a C  felony                                                              
could lose their right to vote or own weapons.                                                                                  
MR. BRANCHFLOWER  said a person  loses their right to  vote during                                                              
the penancy  of the  probationary term.   Assuming they  receive a                                                              
suspended imposition  of sentence then they have a  right to vote.                                                              
People  who have  had  convictions and  the  convictions were  set                                                              
aside have served on juries, grand juries and trial juries.                                                                     
With regard  to possessing  weapons, there is  a provision  in the                                                              
misconduct  involving weapons  section that  says people  who have                                                              
had  a suspended  imposition of  sentence may  possess weapons  if                                                              
their  conviction  has been  set  aside.   He  added  that may  be                                                              
different under federal law.                                                                                                    
SENATOR  OGAN said  the other  answer to  that is  yes they  could                                                              
lose their weapons if the conviction is not set aside.                                                                          
MR. BRANCHFLOWER  said if the conviction  is not set  aside, under                                                              
state law they may not possess concealable weapons.                                                                             
SENATOR OGAN said it took awhile but he finally got his answer.                                                                 
SENATOR THERRIAULT  said they talked about who gets  caught in the                                                              
lasso and he wanted  to clarify who can throw the  rope.  He asked                                                              
if  only the  professional  audit  staff  of the  committee  could                                                              
trigger this.                                                                                                                   
MR.  BRANCHFLOWER predicted  that  if  a request  is  made and  if                                                              
conduct that falls  within the statute occurs, then  it would be a                                                              
crime  just  like  any  other  crime.     The  incident  would  be                                                              
investigated by  whatever appropriate police agency  happens to be                                                              
involved.   The  Alaska  State Troopers  or  the municipal  police                                                              
would  do their report  and submit  it to  the district  attorneys                                                              
office  in  that  particular district.    The  legislative  branch                                                              
could not  bring a criminal action  because that is a  function of                                                              
the executive branch,  but reporting the crime would  start on the                                                              
legislative side.                                                                                                               
SENATOR THERRIAULT  said he was  wondering about the trigger.   He                                                              
has  been Chairman  of  LB&A for  the  past two  years  and had  a                                                              
committee  staff person  and four  people working  in the  office.                                                              
He  asked if  it  would  be triggered  by  anybody  in his  office                                                              
making  a request  or  would it  have  to be  a  request that  was                                                              
actually approved by the committee.                                                                                             
MR. BRANCHFLOWER  said anyone  from the  office who was  operating                                                              
within the normal  course of business and in the  scope his or her                                                              
work might make  a request.  For example, Senator  Therriault made                                                              
a request to  the Department of Health and Social  Services asking                                                              
for an  audit report  regarding Medicaid  members and  some effort                                                              
was  made to  suppress  disclosure  of the  information.   If  the                                                              
committee had reason  to believe there was improper  conduct going                                                              
on  and   there  was  no  assertion   of  a  privilege   then  the                                                              
information  would   go  up  the  chain  of   command  to  Senator                                                              
Therriault.   As head of the  committee, he would have  the option                                                              
of   reporting   the   incident   to  some   police   agency   for                                                              
investigation at  which time an investigation would  take place as                                                              
in any other criminal investigation.                                                                                            
SENATOR THERRIAULT  pointed out he  had staff that worked  for him                                                              
at his  direction and  were paid out  of the LB&A  budget.   If he                                                              
told  his staff  to  request information  from  the Department  of                                                              
Health and Social  Services and his staff reported  the department                                                              
would not  give them  the information  he questioned whether  that                                                              
was enough to trigger the process.                                                                                              
MR. BRANCHFLOWER  replied somebody would have to  make a telephone                                                              
call  and find  out  what  the circumstances  were  regarding  the                                                              
SENATOR THERRIAULT  questioned whether any person  that worked for                                                              
him as chairman  had the right to ask for and  receive information                                                              
and if  the information  was not  given did  the refusal  serve as                                                              
the  trigger.     Could  any  member  of  the   committee  request                                                              
information or  did the request  have to  be approved by  the full                                                              
committee  as it  is for  audits?   When the  full LB&A  committee                                                              
approves  an  audit, the  professional  and  confidentiality-bound                                                              
staff requests  information to  undergo their  work.  He  asked if                                                              
it  takes that  kind of  committee  action to  trigger this  whole                                                              
thing  or could  it simply  be a request  by either  his staff  or                                                              
another committee member's staff.                                                                                               
MR. BRANCHFLOWER  answered he did not think the  statute addressed                                                              
that  question.   He said he  did not  know if  that question  was                                                              
answered anywhere.                                                                                                              
SENATOR THERRIAULT  asked how he proposed that  question should be                                                              
MR. BRANCHFLOWER  pointed out that Sec. 24.20.201  speaks in terms                                                              
of the  Legislative Budget  and Audit  Committee having  the power                                                              
as opposed to  the divisions within the committee.   He analogized                                                              
that  it has  the  power to  require  information  from all  state                                                              
SENATOR THERRIAULT  said that is kind  of fussy.  When  the agency                                                              
had the ability to  "just shine us on" that was  one thing, but if                                                              
there  is going  to be  some kind  of a  sanction it  needs to  be                                                              
clearly  understood  who  has  the  power  to  trigger  the  whole                                                              
MR. BRANCHFLOWER said,                                                                                                          
     It may be that the kind of conduct I'm trying to reach                                                                     
       happens in such a way that it will become known to                                                                       
      members, to someone who is not on the committee and                                                                       
     probably that is the way it will come about.                                                                               
It will come about  on the part of some employee  who has received                                                              
the  request for  information.    It might  be  someone who  works                                                              
within the  Medicaid Program or  someone who works  for Department                                                              
of Health  and Social Services  that is  the agency that  has been                                                              
asked to provide  the information so LB&A may not  even know about                                                              
it.    This  statute  would permit  the  employee  to  bring  that                                                              
conduct  to the  attention  of the  proper  authorities who  would                                                              
then investigate it.                                                                                                            
2:12 pm                                                                                                                       
SENATOR THERRIAULT  said they probably do need  this sanction, but                                                              
he wanted to be  careful about when it gets triggered  and who can                                                              
trigger it.                                                                                                                     
MR. BRANCHFLOWER  said he  understood and added  that the  kind of                                                              
conduct he  is concerned about does  not occur openly.   It occurs                                                              
behind closed doors  between supervisor and the  person supervised                                                              
and  those  are  very  difficult   circumstances  to  disclose  to                                                              
anyone.   There  is no  crime scene  and  it is  a very  difficult                                                              
crime to detect.                                                                                                                
SENATOR GREEN  asked Senator  Therriault  and Mr. Branchflower  if                                                              
this was  not really referring  to the  LB&A Committee as  much as                                                              
when a  LB&A auditor is  proceeding to do  the actual audit.   The                                                              
audit has  been authorized and is  out of the  committee's control                                                              
until  they receive  the completed  audit.  She  said she  assumed                                                              
the  auditor  is primarily  the  person  who  would be  doing  the                                                              
investigation  and  not the  committee.   She  asked  if that  was                                                              
SENATOR THERRIAULT  answered it is  generally the auditor.   There                                                              
is an  extra level of protection  for sensitive information  if it                                                              
is given to the audit staff.                                                                                                    
SENATOR GREEN  asked if  Senator Therriault saw  a need  to change                                                              
the language to be more specific to the auditor.                                                                                
SENATOR THERRIAULT  said he would  like to question  Ms. Davidson.                                                              
He was thinking  if they actually have sanctions they  may want to                                                              
clean this language  up to clarify exactly when  somebody may have                                                              
to respond or suffer a sanction.                                                                                                
SENATOR GREEN agreed.                                                                                                           
MR.  BRANCHFLOWER advised  that  when he  drafted the  legislation                                                              
what he  had in  mind was  a situation  in which  an audit  was in                                                              
progress.  Some  information was requested by LB&A  and a specific                                                              
order  issued  to  an  employee   not  to  provide  the  requested                                                              
information, not  to answer telephone  calls or emails and  not to                                                              
At-ease was taken from 2:15 to 2:16.                                                                                            
CHAIR SEEKINS  noted they were  discussing a Committee  Substitute                                                              
(CS) for SB 45.                                                                                                                 
SENATOR  OGAN  moved  the  committee  adopt  the  work  draft  23-                                                              
LS0205\H version  as the CSSB 45  (JUD).  The motion  carried with                                                              
no objection.                                                                                                                   
SENATOR FRENCH  pointed out Mr.  Branchflower thought  about going                                                              
to  the  U.S. Attorney  regarding  someone  thwarting  a  Medicaid                                                              
investigation  he was conducting.   Senator  French asked  if some                                                              
U.S. code was parallel to this legislation.                                                                                     
MR. BRANCHFLOWER  answered there  are a  number of obstruction  of                                                              
justice  statutes such  as the  statute that  made it  a crime  to                                                              
obstruct  a  health care  investigation.    There are  some  tools                                                              
there,  but he  had trouble  with obstruction  of justice  because                                                              
the term  obstruct is  difficult to define  or quantify.   Instead                                                              
of  coming  up  with  an obstruction  statute,  he  came  up  with                                                              
specific  conduct  that shows  up  on line  2,  page  2.   Orders,                                                              
discourages,  threatens, restrains,  coerces, forces,  or prevents                                                              
all  of which  amount  to obstruction.   He  thought  it would  be                                                              
helpful  and  add  constitutional  muster if  there  was  specific                                                              
conduct.   There are  some federal crimes  but there  are problems                                                              
with them.                                                                                                                      
SENATOR   FRENCH  thought   he  and  Mr.   Branchflower   saw  the                                                              
sentencing under  the C felony  the same way.   With a  first time                                                              
white-collar  offender in  front  of a  superior  court judge  the                                                              
chances are  that person is  going to get  a very  short suspended                                                              
imposition of sentence.   If he or she obeys the  law for the next                                                              
12 to 18 months  the conviction is set aside and  that person goes                                                              
on their way.   He said it strikes him the chief  sanction that is                                                              
going  to happen  to a person  that breaks  this  law is they  are                                                              
going  to lose  their  state  employment  and their  benefits  and                                                              
MR.  BRANCHFLOWER said  that  is correct.    Usually a  supervisor                                                              
would  have some  period  of longevity  with  the  state and  have                                                              
quite a  bit to  lose.   Once it becomes  known among  supervisors                                                              
that there  are some teeth to the  statute and they risk  losing a                                                              
career with  the state,  they might  think twice before  following                                                              
instructions  from their  supervisor or  engaging in  the kind  of                                                              
conduct  the statute  disallows.    Part of  the  reason for  even                                                              
having the statute is the deterrent.                                                                                            
SENATOR  FRENCH referred  to  Sec. 11.56.540  -  Tampering with  a                                                              
witness in the first  degree.  He said his read  of the statute is                                                              
that a  person commits the  crime of tampering  with a  witness in                                                              
the first  degree if the person  knowingly induces or  attempts to                                                              
induce  a  witness  to  (1)  testify   falsely,  offer  misleading                                                              
testimony,  or unlawfully  withhold testimony,  "which is  kind of                                                              
what  it  sounds  like you  encountered  there,"  in  an  official                                                              
proceeding.     He  said the  operative  word  there is  "official                                                              
proceeding not  judicial but  official."  He  pointed out  when he                                                              
read  the definition  of  official  proceeding in  11.81.900  (40)                                                              
"official   proceeding"  means   a  proceeding   heard  before   a                                                              
legislative,  judicial,  administrative,   or  other  governmental                                                              
body.   He said  it strikes him  that a  person who tells  another                                                              
employee  to not  hand  over  evidence or  not  go  testify or  to                                                              
testify to  X when the situation  is actually Y that  person could                                                              
be charged.                                                                                                                     
MR. BRANCHFLOWER  said there would  have to be dependency  or some                                                              
sort  of  a   legislative  proceeding  under  the   definition  of                                                              
official  proceeding.   By the  time it  gets to  the stage  where                                                              
there is a hearing  it gets less likely that  someone would hinder                                                              
the  work of  the Legislative  Budget  and Audit  Committee.   The                                                              
kind of  conduct he had  in mind is  an event that  occurs outside                                                              
the scope of an official proceeding before the Legislature.                                                                     
CHAIR  SEEKINS said,  as  he understood  it,  an  audit would  not                                                              
really be  an official proceeding  and hindering that  audit might                                                              
be nothing more than saying do not cooperate with the auditors.                                                                 
MR. BRANCHFLOWER  agreed and  added that  was the circumstance  he                                                              
CHAIR  SEEKINS  said putting  a  burden  on  the underling  is  in                                                              
conflict with  this statute.  He read  page 1, line 11.   A public                                                              
employee  who   is  convicted   under  this  section   immediately                                                              
forfeits  the employee's  office  or position.    In his  business                                                              
they  would  also   say,  "ineligible  for  rehire   as  a  public                                                              
MR.  BRANCHFLOWER said  he thought  that was  a good  observation.                                                              
Conviction   for  hindering   a  Legislative   Budget  and   Audit                                                              
Committee  in the  first  degree is  not the  kind  of thing  that                                                              
looks good  on a resume.  He added  it would not  hurt to  add the                                                              
finishing language to make sure the person does not come back.                                                                  
CHAIR  SEEKINS  said  sometimes   strange  things  happen  in  the                                                              
political  world.   He  asked Senator  Green  if that  was a  good                                                              
SENATOR GREEN replied it was a fine idea.                                                                                       
SENATOR OGAN  asked what actions  Mr. Branchflower  brought before                                                              
LB&A  when he  became aware  of the  incident he  referenced.   He                                                              
asked whether Mr.  Branchflower asked LB&A to subpoena  them or to                                                              
hold  a hearing  and bring  the people  forward.   He asked  if an                                                              
auditor could not do that under those circumstances.                                                                            
MR.  BRANCHFLOWER replied  not  without the  risk  of being  fired                                                              
especially   if   employees  serve   at   the  pleasure   of   the                                                              
commissioner.   There are a number  of employees who serve  at the                                                              
pleasure of  the commissioner and  this is precisely  what Senator                                                              
Green  was talking  about.   People  with  families and  financial                                                              
obligations   are   more  apt   to   agree  to   follow   specific                                                              
instructions  from   their  boss  and   not  take  any   action  -                                                              
particularly if they serve at-will.                                                                                             
SENATOR OGAN  said there was a  former LB&A Chairman present.   He                                                              
said it  seems to him  if an LB&A  Chairman felt there  were shell                                                              
games  going  on he  could  get  the employee  or  the  employee's                                                              
supervisor  before  the committee  and  ask  them to  raise  their                                                              
right hand  then ask them  about the issue.   He said  there seems                                                              
to  be some  other modalities  in  law perhaps  under a  different                                                              
chapter.   It  seems there  was  another modality  there, it  just                                                              
wasn't done, and now  they want to make it a felony.   He added he                                                              
didn't have a  problem with people losing their  jobs and becoming                                                              
ineligible  for rehire,  but wasn't  there some  way the  chairman                                                              
could have called these people forward?                                                                                         
2:25 pm                                                                                                                       
MR.  BRANCHFLOWER   said  the  problem,  especially   for  at-will                                                              
employees,  is once the  instruction is  disregarded there  is the                                                              
very real  potential of ending  that employee's career  regardless                                                              
of  how  the audit  turns  out.    It  places the  employee  in  a                                                              
position of having  to make very difficult choices  and more often                                                              
than  not  the  employee  is  going   to  error  on  the  side  of                                                              
preserving  their  job.   That  means  the information  sought  is                                                              
never going to come  to light.  He said he knows  this goes on and                                                              
it  would never  get  to  the stage  where  the chairman  of  some                                                              
committee would  say they knew about  this intent of  hindering or                                                              
obstructing the  flow of information  and the chairman  would take                                                              
the step  of issuing a  subpoena and someone  would be  brought in                                                              
and take the oath.   By the time it gets to that  stage the cat is                                                              
out of the bag and that at-will employee is very much at risk.                                                                  
SENATOR OGAN  said so the answer  is yes, there is  that modality.                                                              
He said Mr. Branchflower is making his point.                                                                                   
     I'm asking  a question, a  specific question,  your kind                                                                   
     of giving me  good answers, but they're not  quite round                                                                   
     about  it.   I  mean I  don't think  that  there is  any                                                                   
     culpability to  not answer my  question and in  an audit                                                                   
     it's  the same  kind of situation.   There  are lots  of                                                                   
     gray area about  questions and answers....   You have to                                                                   
     have  a  culpable mental  state  to  be convicted  of  a                                                                   
     felony  - that you  deliberately had  a certain type  of                                                                   
     behavior.   And you know it  gets kind of  subjective in                                                                   
     this realm  of politics  we're in  and what's the  right                                                                   
     answer.  You  know I don't always like the  answers that                                                                   
     people give  me and sometimes I think they're  the wrong                                                                   
     answer  because I didn't  like them....  These are  some                                                                   
     major ramifications  here.   And the committee  chairmen                                                                   
     have a  lot of power and  the power of subpoena  and the                                                                   
     power  to put people  under oath  and there are  serious                                                                   
     violations,  not   as  serious  as  this,   but  there's                                                                   
     violations for  ignoring that. So anyway I  guess that's                                                                   
     the statement we're going to question.                                                                                     
SENATOR  THERRIAULT said  it seems  like there  are two  different                                                              
scenarios.   He agreed it is  a problem with the  at-will employee                                                              
if the  supervisor tells  them to not  cooperate because  they may                                                              
be the only  two people that are  privy to that decision.   If the                                                              
Chairman  of LB&A  starts calling  the  supervisor to  ask him  to                                                              
take  an oath  the supervisor  is  going to  know  who leaked  the                                                              
information  so that  employee is  put at  risk.   The way to  get                                                              
around that is offer that employee whistleblower protection.                                                                    
There also is  the scenario where the supervisor  and the employee                                                              
are working  in conjunction  and they decide  to thwart  the LB&A.                                                              
Maybe the only  way to get to  the bottom would be to  call people                                                              
forward and  tell them to  raise their hand  and swear.   So there                                                              
are two different  possibilities and it might be  sensible to make                                                              
all of that applicable  when there has been a  request through the                                                              
operation of an official audit being done.                                                                                      
SENATOR THERRIAULT  added when a formalized audit  is taking place                                                              
you might  want to have these  sanctions to keep  public employees                                                              
from  thwarting  the  will  of the  committee,  but  perhaps  this                                                              
section shouldn't apply for informal requests.                                                                                  
The extra  twist on that is  the legislation says at  the specific                                                              
direction of the  committee and the committee does  take action to                                                              
approve  audit requests.   A  number  of audits  are triggered  by                                                              
statute not  by action of  the committee.   The statutes  just say                                                              
the Legislative  Budget and Audit  Committee shall once  every two                                                              
years  or once  a year  perform X  audit.   This mechanism  should                                                              
also apply to that.                                                                                                             
SENATOR GREEN asked if sunset audits should apply as well.                                                                      
SENATOR THERRIAULT  said sunset audits, financial  audits and some                                                              
of the things that are just triggered by the operation.                                                                         
2:31 pm                                                                                                                       
MS.  PAT DAVIDSON,  Legislative Auditor,  Division of  Legislative                                                              
Audit,  explained she  did not  have any  prepared testimony,  but                                                              
was available for  questions.  She was interested  in listening to                                                              
all  the  testimony because  they  are  the  people that  have  to                                                              
conduct the  audit.  She  said it is weak  to have a  statute that                                                              
requires,  but  provides no  enforcement.    There  are a  lot  of                                                              
statutory  avenues that  might  be pursued  to  encourage and  put                                                              
teeth in the encouragement.                                                                                                     
At ease was called from 1:33 to 1:38.                                                                                           
CHAIR SEEKINS  informed Ms. Davidson  the committee would  like to                                                              
hear any  comments she may have  because their intent was  to roll                                                              
some of  the ideas  they have  talked about  to Senator  Green and                                                              
come back with a  CS for further discussion.  Any  input she could                                                              
give at this point would be greatly appreciated.                                                                                
MS.  DAVIDSON said  she  was unaware  of  the  specific issue  Mr.                                                              
Branchflower was  addressing. As  the legislative auditor  for the                                                              
last  five years,  she knew  of just  one occasion  where she  had                                                              
conversations  with   the  Chairman   of  the  Budget   and  Audit                                                              
Committee  regarding the  potential  need to  issue subpoenas  for                                                              
non-cooperation.   There is  a gamut  of non-cooperation,  but she                                                              
has  very well  trained  staff and  they are  aware  when that  is                                                              
going on.   Having the LB&A  Committee power to subpoena  has been                                                              
an important element and backstop in getting cooperation.                                                                       
MS.  DAVIDSON  said   another  point  was  the   discussion  about                                                              
differentiating  the actions  of  a supervisor  from  those of  an                                                              
employee when the  employee wants to cooperate.   The attorneys in                                                              
Legislative  Legal and Research  Services  probably have  a keener                                                              
understanding  of  the  implications.    They  want  to  encourage                                                              
everybody   to    cooperate   and   specifically    identify   the                                                              
whistleblower's statute.   Cooperation with the LB&A  Committee or                                                              
the  Division of  Legislative  Audit  is specifically  covered  as                                                              
opposed to them  wondering or even asking the  division whether it                                                              
is covered  might be helpful  on the positive  side.  In  terms of                                                              
trying  to  look at  that  supervisor  who  is taking  that  overt                                                              
action of trying to hinder there are a gamut of remedies.                                                                       
With  regard  to the  discussion  about  felonies, she  asked  how                                                              
likely it  might be to  have troopers come  as opposed  to getting                                                              
the  Department of  Law  to move  on  an executive  branch  ethics                                                              
complaint.   She  said those  are the  things she  really did  not                                                              
know but  did expect  the Judiciary Committee  would like  to hear                                                              
more about.                                                                                                                     
SENATOR  THERRIAULT   said  the  audit  staff  was   present,  but                                                              
Legislative  Finance also  is a branch  that is  under LB&A.   The                                                              
committee probably  should have Mr. Teal from  Legislative Finance                                                              
weigh  in  on  the  issue  also  and  see  exactly  what  kind  of                                                              
interaction the finance staff has with state agencies.                                                                          
CHAIR  SEEKINS  said  they  would  do that.    He  understood  the                                                              
committee was going to concentrate on the following for a CS.                                                                   
    · Who throws the rope and when.                                                                                             
    · Whistleblower protection for someone who may need that to                                                                 
      get the complaint filed.                                                                                                  
    · Continue looking at this as a felony or as a misdemeanor.                                                                 
    · Adding whether the employee who is dismissed would be                                                                     
      eligible for rehire.                                                                                                      
SENATOR ELLIS  asked if  there was anyone  from the  Department of                                                              
Law signed up to testify and give their perspective.                                                                            
CHAIR SEEKINS  said they  did not  have anyone,  but Mr.  Hove was                                                              
going to  ask someone  from the  Department of  Law to  attend the                                                              
next hearing on SB 45.                                                                                                          
CHAIR SEEKINS announced SB 45 would be held in committee.                                                                       

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