Legislature(2017 - 2018)BUTROVICH 205
02/20/2018 03:30 PM Senate STATE AFFAIRS
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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 follows: 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 interest. 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 deliberate. 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 substitute. REPRESENTATIVE STUTES agree to do so. 4:39:34 PM CHAIR MEYER held HB 87 in committee.