Legislature(2017 - 2018)BUTROVICH 205

02/20/2018 03:30 PM Senate STATE AFFAIRS

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-- Public Testimony --
         HB 87-CONFLICT OF INTEREST: BD FISHERIES/GAME                                                                      
3:56:47 PM                                                                                                                    
CHAIR  MEYER announced  the consideration  of House  Bill 87  (HB
87). [CSHB 87(FSH) was before the committee.]                                                                                   
3:57:22 PM                                                                                                                    
REPRESENTATIVE LOUISE  STUTES, Alaska State  Legislature, Juneau,                                                               
Alaska,  sponsor of  HB  87, summarized  that  the bill  strictly                                                               
pertains to conflict of interest for the Alaska Board of                                                                        
Fisheries (Board of Fish) and the Alaska Board of Game (Board of                                                                
Game). She detailed as follows:                                                                                                 
     The  reason for  this bill  is currently  when you  are                                                                    
     sitting  on, particularly  on the  Board  of Fish,  the                                                                    
     Board of  Game doesn't  seem to  be quite  as stringent                                                                    
     although they live under the  same statute as the Board                                                                    
     of  Fish does.  When you  are sitting  on the  Board of                                                                    
     Fish  if   you  have  a  conflict   you  certainly  are                                                                    
     conflicted-out  from   voting  on   it,  but   you  are                                                                    
     conflicted-out from  the discussion as well;  in having                                                                    
     experts on this board it  seems a little odd to exclude                                                                    
     them from  the conversation  when that's what  they are                                                                    
     there  for.  Consequently,  this bill's  intent  is  to                                                                    
     allow  the individuals  to participate  if they  have a                                                                    
     conflict  and  to  allow them  to  participate  in  the                                                                    
     discussion   even  though   they  may   not  have   the                                                                    
     opportunity to vote on the bill.                                                                                           
3:59:05 PM                                                                                                                    
MATT GRUENING, Staff, Representative Stutes, Alaska State                                                                       
Legislature, Juneau, Alaska, provided an overview of HB 87 as                                                                   
     The intent  of HB 87 is  to change the manner  on which                                                                    
     the Board of Fisheries and  the Board of Game function,                                                                    
     to  allow members  to deliberate  on subjects  of which                                                                    
     they  have declared  a personal  or financial  interest                                                                    
     according the  Executive Branch Ethics Act.  The Ethics                                                                    
     Act   forbids  a   public   officer   from  taking   or                                                                    
     withholding  official  action  in  order  to  affect  a                                                                    
     matter in which the member  has a personal or financial                                                                    
     interest.  Official  action  is then  defined  to  mean                                                                    
     advise,   participation,   assistance;  including   for                                                                    
     example,   a    recommendation,   decision,   approval,                                                                    
     disapproval, vote or similar action.                                                                                       
     Currently the  board members are required  to divulge a                                                                    
     conflict  of  interest  if   they  or  their  immediate                                                                    
     families are  involved in  a subject  being deliberated                                                                    
     on. The  conflicted member could  then no  longer offer                                                                    
     their  input in  the  process and  cannot  vote on  the                                                                    
     matter at  hand; in fact,  they are asked to  step down                                                                    
     and  join the  audience.  This  bill allows  conflicted                                                                    
     members  to offer  remarks and  input, but  the members                                                                    
     still  cannot vote  on the  issue. The  member is  also                                                                    
     precluded from  voting on whether they  have a conflict                                                                    
     of interest  or not, that  is determined by  the ethics                                                                    
     officer who  is the  chairman and then  if there  is an                                                                    
     objection it goes to a vote of the board.                                                                                  
     The qualifications for the appointment  to the Board of                                                                    
     Fisheries  and the  Board of  Game are  quite different                                                                    
     and  more general  from most  boards. Instead  of being                                                                    
     chosen because they are  professionals in their fields,                                                                    
     members are  selected on the  basis of interest  in the                                                                    
     public  affairs,  good  judgement, knowledge,  and  the                                                                    
     ability of  field of action  of the board and  with the                                                                    
     view to  providing a diversity  of interest  and points                                                                    
     of  view  on  membership.  One of  the  things  we  are                                                                    
     looking  at is  that  somebody might  have a  different                                                                    
     point of  view because  of their knowledge,  because it                                                                    
     is  essentially a  layman's board,  and you  might only                                                                    
     have a couple  of people that own  a certain particular                                                                    
     type of permit  or work in lodge, they  might have some                                                                    
     perspective  on  the  nuances  of  fishing  that  other                                                                    
     members  of the  board might  not have  and thus  their                                                                    
     knowledge and expertise is actually of great use.                                                                          
     In  addition, many  of  the other  boards  are tied  to                                                                    
     licenses,  they are  exempt, many  of  the boards  from                                                                    
     certain requirements in  the ethics act. So,  this is a                                                                    
     board that deals with licenses  as well and it's one of                                                                    
     the boards that  you are not allowed  to deliberate and                                                                    
     in some cases the boards  are actually allowed to vote;                                                                    
     so,  this makes  a lot  of sense  from our  perspective                                                                    
     from the fact  that you possibly have  very few amounts                                                                    
     of expert viewpoints on what is being discussed.                                                                           
     Often  in  fishing  a financial  interest  is  tied  to                                                                    
     knowledge of the field. Fishing  issues tend to be very                                                                    
     complicated and knowledge based.  A person who may have                                                                    
     an  uncle, aunt,  brother  who has  a  certain type  of                                                                    
     fishing  permit  or  has a  fishing  permit  themselves                                                                    
     might be the  only person on the  board who understands                                                                    
     exactly   what   is    being   discussed   in   detail,                                                                    
     particularly  in  rural  Alaska where  entire  families                                                                    
     might be  permit holders or  lodge owners.  The current                                                                    
     conflict  policy  is  discouraging  in  some  instances                                                                    
     qualified  members from  applying to  the board  on the                                                                    
     basis of  them knowing they would  be conflicted-out of                                                                    
     the discussion in a lot of cases.                                                                                          
     Another  issue  is one  of  public  process and  public                                                                    
     trust. Board  members who are conflicted-out  are still                                                                    
     actually offering  their input,  but they are  doing it                                                                    
     outside  of   the  meeting  and   they  are   doing  it                                                                    
     discussing  on the  side with  other board  members; in                                                                    
     order  to  maintain  the   public's  trust,  we  really                                                                    
     believe these  discussions should  be happening  in the                                                                    
     meeting  and  on  the public  record  so  there's  that                                                                    
     aspect to it  as well is it really  improves the public                                                                    
     process,  it  seems  prudent   to  allow  members  with                                                                    
     expertise and  knowledge to offer their  input, but not                                                                    
     vote.  It is  the  sponsor's opinion  that this  change                                                                    
     will  help the  boards  make  more informed  decisions,                                                                    
     enhance  the public  process and  lead  to a  generally                                                                    
     stronger resource management statewide.                                                                                    
     I will  say that in a  full disclosure I would  like to                                                                    
     point  out  that  due  to  recent  staff  turnover,  we                                                                    
     discovered last week that there  may be some unintended                                                                    
     consequences  with the  bill the  way  it is  currently                                                                    
     drafted.  Unfortunately   due  to  the   personal  bill                                                                    
     deadline we were unable to  fix the draft fixes in time                                                                    
     but also aside from that  we thought it was the prudent                                                                    
     action to  present our intent  to the  committee, point                                                                    
     out the  issues that  might need  to be  addressed, and                                                                    
     let  the will  of the  chair and  the committee  decide                                                                    
     what changes if any need to be made to the bill.                                                                           
4:03:26 PM                                                                                                                    
MR. GRUENING  directed attention  to a legal  memo from  Linda M.                                                               
Bruce,  Legislative Counsel,  Legal Services,  dated February  9,                                                               
2017. He  explained that the  memo was  debated at length  and to                                                               
the satisfaction of the House  Resources Committee that there was                                                               
not an issue.  He said after discussions with  Legal Services and                                                               
the Board  of Fish, Representative Stutes'  office concluded that                                                               
clarification  is  needed  in  the  bill's  intent  language.  He                                                               
detailed as follows:                                                                                                            
     What the memo  says essentially is that the  use of the                                                                    
     words  "notwithstanding any  other  provision" of  this                                                                    
     chapter at  the beginning  of the  bill could  have the                                                                    
     effect and it is not  clear whether it does or doesn't,                                                                    
     but  it  seems  like  an easy  fix  of  superseding  AS                                                                    
     39.52.120(c),   which  in   turn  would   supersede  AS                                                                    
     39.52.220. That essentially is "the  nuts and bolts and                                                                    
     the  meat" of  the  process by  which  you'd declare  a                                                                    
     conflict, how a conflict  is determined, who the ethics                                                                    
     officer is, and  how the voting can  be determined, and                                                                    
     whether you can  still vote or deliberate  or not; that                                                                    
     certainly was not our intent,  our intent was simply to                                                                    
     allow  the use  of the  current process  when declaring                                                                    
     and  determining a  conflict of  interest and  the only                                                                    
     thing  that  the  sponsor  would   like  to  change  is                                                                    
     essentially what  was voted  on throughout  the process                                                                    
     too is that if there  is a conflict that the conflicted                                                                    
     member  can  deliberate  but  not  vote.  We  were  not                                                                    
     looking  at  in any  way  to  inadvertently affect  the                                                                    
     current process  by which  the conflict  is determined,                                                                    
     that   seems  to   be  working   well  and   it's  well                                                                    
     established in statute.                                                                                                    
4:05:49 PM                                                                                                                    
MR.  GRUENING  called  attention  to a  memo  from  Glenn  Haight                                                               
regarding "Background  Information on  the Alaska Boards  of Game                                                               
and Fisheries Ethics Act Process."  He summarized that Mr. Haight                                                               
also  said  clarification  is  needed   to  get  to  the  intent,                                                               
specifically  what the  bill addressed.  He added  that the  bill                                                               
also narrows the definition of  "immediate family member" for the                                                               
purposes of  debate, not voting.  He conceded that  an unintended                                                               
interpretation  may  imply  that   the  bill  will  supersede  AS                                                               
39.52.220 for the ability to vote;  he said the sponsor will look                                                               
to the  will of  the chair  and the committee  to decide  if that                                                               
change is appropriate.                                                                                                          
He  summarized that  the  bill's intent  is  to allow  conflicted                                                               
members under the current system  to deliberate but not allow the                                                               
ability to  vote. He noted  that he spoke with  Legislative Legal                                                               
and was told that a simple fix could be made.                                                                                   
REPRESENTATIVE STUTES  asserted that  the intent  is to  make the                                                               
language  clear cut  and easily  understood. She  reiterated that                                                               
the  intent   is  to  allow   conflicted-out  board   members  to                                                               
participate in the discussion and  impart their knowledge but not                                                               
be  allowed to  vote. She  said  not allowing  somebody to  share                                                               
their expertise seemed odd.                                                                                                     
CHAIR MEYER asked  why Representative Stutes does  not want board                                                               
members to  vote. He opined  that the governor  probably selected                                                               
the board members because of their expertise.                                                                                   
REPRESENTATIVE  STUTES  replied that  the  issue  the boards  are                                                               
trying  to   avoid,  particularly   in  fisheries,  is   that  an                                                               
individual can  be affected monetarily.  She reiterated  that the                                                               
intent is  to allow a board  member to put forth  their expertise                                                               
but let others vote.                                                                                                            
4:09:56 PM                                                                                                                    
CHAIR MEYER asked what the financial  hurdle is for a conflict of                                                               
MR. GRUENING replied the financial  hurdle is $5,000 according to                                                               
AS 39.52.110(d).  He disclosed that  the statute was  proposed by                                                               
Hollis French, former state senator.                                                                                            
SENATOR GIESSEL asked  if the memo from Glenn  Haight stated that                                                               
the current  procedure followed by  the boards complies  with the                                                               
Executive Branch Ethics Act.                                                                                                    
MR. GRUENING answered correct.                                                                                                  
SENATOR GIESSEL asked  if the Executive Branch  Ethics Act states                                                               
that a  person who  is conflicted-out  cannot participate  in the                                                               
debate or vote.                                                                                                                 
MR. GRUENING answered correct.                                                                                                  
SENATOR  GIESSEL  asked  if  the   bill  proposes  to  tweak  the                                                               
Executive Branch  Ethics Act only for  the Board of Fish  and the                                                               
Board of Game.                                                                                                                  
MR.  GRUENING answered  correct. He  said the  qualifications for                                                               
the  boards is  very general  and reiterated  that an  individual                                                               
with  intricate  knowledge  might   not  be  allowed  to  provide                                                               
important input in making decisions.                                                                                            
4:12:20 PM                                                                                                                    
SENATOR  GIESSEL   noted  her  experience   with  serving   on  a                                                               
professional regulatory board and  pointed out the specialization                                                               
in  the Board  of Fish  and Board  of Game.  She opined  that the                                                               
requested change seems very logical.                                                                                            
REPRESENTATIVE  STUTES referenced  a situation  that occurred  in                                                               
Kodiak  several  years  ago  with  the Board  of  Fish  where  an                                                               
individual  was conflict-out  and  the  individual's input  would                                                               
have made a difference in the board's vote.                                                                                     
MR. GRUENING  disclosed that the  current chairman for  the Board                                                               
of Fish,  John Jensen from  Petersburg, was  recently conflicted-                                                               
out  of  50 different  proposals  where  he  was not  allowed  to                                                               
SENATOR GIESSEL  pointed out that the  Senate Resources Committee                                                               
interviews  applicants for  the Board  of Fish  and the  Board of                                                               
Game and  noted that the  committee votes on appointees  based on                                                               
their  expertise. She  said  she appreciated  that  the bill  was                                                               
brought forward.                                                                                                                
CHAIR  MEYER asked  what occurs  if  someone does  not declare  a                                                               
conflict of interest.                                                                                                           
4:15:11 PM                                                                                                                    
GLENN  HAIGHT, Executive  Director,  Alaska  Board of  Fisheries,                                                               
Juneau,  Alaska, speculated  that if  the board  passes something                                                               
where  a conflict  was  not declared  that  the board's  decision                                                               
would be voidable based on reconsideration.                                                                                     
4:16:03 PM                                                                                                                    
BRADLEY  MEYEN,  Assistant   Attorney  General,  Civil  Division,                                                               
Natural Resources  Section, Alaska Department of  Law, Anchorage,                                                               
Alaska, addressed Chair Meyer's  question regarding not declaring                                                               
a conflict of interest as follows:                                                                                              
     To  the extent  that a  matter would  take place  where                                                                    
     there  was  a situation  where  someone  had failed  to                                                                    
     properly declare  a conflict I  would need to  check it                                                                    
     out further but I would  agree that my initial response                                                                    
     is  that it  would  be a  voidable  action; however,  I                                                                    
     would like  to add  that the  board members  take these                                                                    
     matters   very  seriously   and   they  explore   their                                                                    
     potential  conflicts  and  they   do  so  with  further                                                                    
     discussions including  discussions with  the Department                                                                    
     of Law  to run through  the specific items that  are in                                                                    
     the ethics  act to avoid  those types of  problems from                                                                    
     even occurring.                                                                                                            
SENATOR GIESSEL  asked if  making an  exception to  the Executive                                                               
Branch Ethics Act would result in a legal problem.                                                                              
MR.  MEYEN referenced  page 5  from Mr.  Haight's April  12, 2017                                                               
memorandum   where  the   Department  of   Laws'  concerns   were                                                               
encapsulated. He  noted that DOL's  concerns actually  called for                                                               
clarifications so  that the change  would be consistent  with the                                                               
Executive Branch Ethics Act.                                                                                                    
4:18:21 PM                                                                                                                    
MR.  GRUENING  referenced  AS   39.52.310  through  AS  39.52.330                                                               
regarding  complaints  and  the  process by  which  the  attorney                                                               
general or  person may  initiate a complaint  in addition  to the                                                               
process for a possible hearing.                                                                                                 
MR.  HAIGHT  asserted  that  the   bill's  intent  is  clear  and                                                               
implementation for  the Board of  Fisheries or the Board  of Game                                                               
would be simple.                                                                                                                
4:20:27 PM                                                                                                                    
CHAIR MEYER opened public testimony.                                                                                            
4:21:00 PM                                                                                                                    
JERRY  MCCUNE, President,  United  Fishermen  of Alaska,  Juneau,                                                               
Alaska, testified  in support of  HB 87.  He said not  allowing a                                                               
conflicted-out board  member with  expertise to  answer questions                                                               
is frustrating.                                                                                                                 
4:24:45 PM                                                                                                                    
CHAIR  MEYER   asked  what  happens   when  a  board   member  is                                                               
conflicted-out, if  the remaining members have  access to experts                                                               
during their meetings to answer questions.                                                                                      
MR. MCCUNE  explained that staff  members from the  Department of                                                               
Fish  and Game  attend board  meetings, but  typically the  board                                                               
does not ask questions during the deliberation stage.                                                                           
4:26:08 PM                                                                                                                    
FRANCES  LEACH, Executive  Director, United  Fishermen of  Alaska                                                               
(UFA), Juneau,  Alaska, testified in  support of HB 87.  She said                                                               
what good  is expertise when  a board is  not allowed to  use it.                                                               
She confirmed  that Board  of Fish members  are open,  honest and                                                               
extremely transparent when dealing  with the conflict of interest                                                               
process. She  affirmed that  conflicted-out board  members should                                                               
not  be allowed  to vote,  but UFA  believes that  conflicted-out                                                               
board members should be able  to deliberate and discuss proposals                                                               
on  the record  to help  clarify and  provide an  insight into  a                                                               
fishery. She said  she has seen board members  struggle to decide                                                               
when a conflicted-out  member would have provided  an answer. She                                                               
summarized that  muting a board  member's voice  undermines one's                                                               
strength on a  board, especially the ability to  offer insight on                                                               
a specific fishery.                                                                                                             
4:30:54 PM                                                                                                                    
CHAIR  MEYER concurred  with Ms.  Leach  that the  conflicted-out                                                               
members were  picked because of  their expertise and  opined that                                                               
they should be allowed to vote as well.                                                                                         
SENATOR GIESSEL  agreed with  Chair Meyer  on allowing  voting as                                                               
other regulatory boards do.                                                                                                     
4:32:23 PM                                                                                                                    
JULIANNE CURRY, representing  self, Petersburg, Alaska, testified                                                               
in  support   of  HB  87.   She  agreed  with   the  common-sense                                                               
legislation  to   allow  conflicted-out  members   with  valuable                                                               
expertise  to deliberate.  She asserted  that Alaska's  fisheries                                                               
are much  too complex to  restrict board members'  expertise. She                                                               
added  that she  also supported  further defining  the "immediate                                                               
family member" definition.                                                                                                      
4:33:34 PM                                                                                                                    
MALCOLM  MILNE, President,  North Pacific  Fisheries Association,                                                               
Homer, Alaska,  testified in  support of HB  87. He  said finding                                                               
qualified  members   to  serve  on   the  state  boards   can  be                                                               
challenging  and limiting  participation can  hamper information.                                                               
He  set   forth  that  allowing   conflicted  board   members  to                                                               
deliberate  adds  expertise.  He  said keeping  the  conflict  to                                                               
immediate family members is appropriate.                                                                                        
4:34:59 PM                                                                                                                    
MATT  ALWARD,  representing  self, Homer,  Alaska,  testified  in                                                               
support  of  HB  87.  He  asserted  that  changing  the  conflict                                                               
standards  to  "immediate  family   members"  is  reasonable  and                                                               
responsible. He  agreed that conflicted board  members should not                                                               
have a  vote, but to bar  the members from the  conversation goes                                                               
too far, especially for the subject-matter experts.                                                                             
4:35:59 PM                                                                                                                    
CHAIR MEYER closed public testimony.                                                                                            
SENATOR  GIESSEL  agreed  with   previous  testimony  that  board                                                               
members are highly  scrutinized and keep their  ethics level very                                                               
high  simply  because  of  the public  scrutiny.  She  said  what                                                               
Representative  Stutes   is  proposing   is  important   for  the                                                               
committee  to consider.  She added  that she  would like  to hear                                                               
from Representative Stutes on how she would perfect the bill.                                                                   
CHAIR MEYER concurred that board  members are closely scrutinized                                                               
and watched. He asked Representative  Stutes if she had suggested                                                               
changes for the bill.                                                                                                           
4:37:44 PM                                                                                                                    
REPRESENTATIVE STUTES  said her  office is  going to  clarify the                                                               
language in the  bill so there is no misconception  in the intent                                                               
which  is  to allow  board  members  that are  conflicted-out  to                                                               
participate in the discussion without obtaining a vote.                                                                         
CHAIR MEYER asked  if there has been a discussion  with the Board                                                               
of Game regarding the proposed changes for the bill.                                                                            
MR. GRUENING said  the director for the Board of  Game was unable                                                               
to testify but  in previous testimony said the board  has taken a                                                               
neutral position.                                                                                                               
CHAIR  MEYER suggested  that  Representative  Stutes provide  his                                                               
office  with  her proposed  changes  for  presenting a  committee                                                               
REPRESENTATIVE STUTES agree to do so.                                                                                           
4:39:34 PM                                                                                                                    
CHAIR MEYER held HB 87 in committee.                                                                                            

Document Name Date/Time Subjects
SCR1 Version A.PDF SSTA 2/20/2018 3:30:00 PM
SCR1 Sponsor Statement.pdf SSTA 2/20/2018 3:30:00 PM
SCR1 Supporting Document-Voting Recusal Provisions in 50 states.pdf SSTA 2/20/2018 3:30:00 PM
SCR 1 Fiscal Note SCR1-LEG-SESS-02-16-18.pdf SSTA 2/20/2018 3:30:00 PM
HB 87 Version A.PDF SSTA 2/20/2018 3:30:00 PM
HB 87
HB 87 Version R.PDF SSTA 2/20/2018 3:30:00 PM
HB 87
HB87 Summary of Changes A to R 2.17.17.pdf SSTA 2/20/2018 3:30:00 PM
HB 87
HB87 Sponsor Statement ver R 2.3.18.pdf SSTA 2/20/2018 3:30:00 PM
HB 87
HB87 Additional Document BOF BOG Information.pdf SSTA 2/20/2018 3:30:00 PM
HB 87
HB87 Additional Document Historic Bills.pdf SSTA 2/20/2018 3:30:00 PM
HB 87
HB87 Additional Document Board Recusal Rates.pdf SSTA 2/20/2018 3:30:00 PM
HB 87
HB87 Legal Memo.pdf SSTA 2/20/2018 3:30:00 PM
HB 87
HB87 Letter in Opposition RHAK 2.13.17.pdf SSTA 2/20/2018 3:30:00 PM
HB 87
HB87 Letters of Support (Combined).pdf SSTA 2/20/2018 3:30:00 PM
HB 87
HB 87 Letter of Support UFA 1.24.2018.pdf SSTA 2/20/2018 3:30:00 PM
HB 87
HB 87 Fiscal Note 2018.pdf SSTA 2/20/2018 3:30:00 PM
HB 87
HB 44 Version R.PDF SSTA 2/20/2018 3:30:00 PM
HB 44
HB 44 Ver R Explanation of Changes.pdf SSTA 2/20/2018 3:30:00 PM
HB 44
HB 44 Sponsor Statement.pdf SSTA 2/20/2018 3:30:00 PM
HB 44
HB 44 Supporting document-AKPIRG Support Letter.pdf SSTA 2/20/2018 3:30:00 PM
HB 44
HB 44 Supporting Document-Leg Research Report 15-423m.pdf SSTA 2/20/2018 3:30:00 PM
HB 44
HB 44 Supporting Document-LWV 1.27.17.pdf SSTA 2/20/2018 3:30:00 PM
HB 44
HB 44 Fiscal Note HB44-LEG-SESS-02-16-18.pdf SSTA 2/20/2018 3:30:00 PM
HB 44