Saturday, April 12, 2014

"Yes, but we're not Congress, aren't we?" Giessel Said

Wednesday I reported that Sen. Hollis French had sent a letter to Sen. Cathy Giessel requesting that the witnesses - oil company representatives - be asked to testify under oath.

For those who want just the summary, scroll down to:  It All Seems to Boil Down To

That afternoon, the committee met and the Anchorage Daily News reports that Giessel opened the meeting by saying they would not administer oaths and when French attempted to respond to her, she had his mic shut off and the televised portion when silent.

Obviously, the issue, as far as Giessel was concerned, was not open for debate.  I've tried to glean from the Daily News article by Rich Mauer   Giessel's main objections.  This snippet seems to get most of them which I've highlighted:
“It’s unfortunate we have to have this kind of duel on the floor,” she said. Acknowledging that the use of sworn testimony wasn’t quite without precedent, she said it was last used by the Legislature in 1997.     
“We are to conduct ourselves with some decorum, and to spring that on people who are coming to testify would simply be unprofessional of us,” Giessel said. “I’m not an attorney, as the previous speaker is, but it is my understanding that the preparation for testimony under oath is a different type of preparation than simply coming and providing information.”    
As the Senate broke, French said as he was leaving the chamber that his request was hardly extreme. “You can’t contest a traffic ticket without taking an oath,” he said.    
At her desk in the chamber, Giessel talked to Senate President Charlie Huggins, R-Wasilla.     
Doesn’t Congress swear in witnesses? a reporter asked.     
“Yes, but we’re not Congress, aren’t we?” Giessel said.     
“This is redneck Alaska,” Huggins said.    
There was no criminal activity that was being investigated,” she said as Huggins called her away.
Additionally, Giesel is quoted as saying the request was:
  • unprecedented and inappropriate.”
  • “Springing an under-oath requirement on invited citizens at the last minute is not only unfair but unprofessional,” Giessel said. The request by French, a former prosecutor, would bring a “criminal justice approach to this committee meeting,” she said. 

My reaction Wednesday, and the reaction of some others I talked to, was, "Gee, I thought it was expected that you told the truth."  But it turns out that unless you are sworn in, you can't be prosecuted for perjury.  So, if you lie, there are no legal consequences.

Let's look at the arguments one by one.  

  • "to spring that on people who are coming to testify would simply be unprofessional of us,”
    There are two parts here.  1.  The timing and 2.  asking them to testify under oath.
    • Sen. French's letter is dated one day before the committee hearing.  I'm not sure when the witnesses were announced.
    • Unprofessional is a word that many people use when they disagree with a practice.  Essentially it's a fancy word for 'bad.' For 'unprofessional' to have real meaning, one would have to cite a professional association (in this case relevant to legislative hearings) that has among its rules, regulations, or standards something about asking witnesses to testify under oath and/or related to a time limit.  
  • "preparation for testimony under oath is a different type of preparation than simply coming and providing information."
    • My sense of this, confirmed by an attorney friend, is that this isn't wrong, but it depends on the context and the experience of the people testifying.
    • If under oath, it isn't hard to say, "I'm not sure of these numbers" or other qualifying comments.  In fact, the ConocoPhillips presentation even had a 200 word disclaimer (see below) on their forecasts. 
    • These oil company representatives were not there to casually provide information.  These are well-paid professional spokespersons,  trained in presenting their corporations' views.  They had Power Point presentations (see below) that someone had clearly spent a lot of time preparing. 
  • "we’re not Congress"
    I'm not quite sure how to interpret what she meant by this. 
    Obviously, the Alaska legislature is not the US Congress, but it is to the state of Alaska what Congress is to the United States.   Some possibilities:
    • She may have meant that unlike Congress with all its intense security and many other restrictions, the Alaska legislature is much more casual.  And that is certainly true.  Anyone can walk into the capitol building and up to any legislator's office without going through security.  And being more casual, we don't have to administer oaths. 
    • Or perhaps she meant we aren't gridlocked like Congress.  In Alaska the minority has no power to stop whatever the majority wants to do.

      However she meant it, it's more than clear that few other issues than SB 21 and its impact on oil companies will have greater impact on Alaska's future.  The oil companies are spending millions of dollars to defeat a proposition to overturn SB 21.  No one in Alaska has a greater financial vested interest in any legislation than the oil companies have in SB 21.  They have every incentive to make it appear that SB 21 has stimulated them to invest more in Alaska and to create more jobs in Alaska.  And that could include misleading testimony.
  • There was no criminal activity that was being investigated  Note:  She didn't say there was no criminal activity, only that (if there were), it wasn't being investigated.  But we do know that battles over oil tax funding have, in the not too distant past, involved criminal activity that netted a dozen or so pleas and/or convictions.
  • unprecedented and inappropriate.”
    • Sen. Giessel herself already corrected the unprecedented claim
    • Inappropriate is like 'unprofessional' but even more vague.  It's a way of saying no in polite language but without giving a reason.
  • "unfair but unprofessional" Unprofessional has already been addressed.  But we don't know what she meant by 'unfair.'  It's unfair to ask people to swear that what they are testifying is the truth?  
I checked with Sen. French's office to see if any reports were submitted to the committee.  Each oil company representative had a Power Point presentation (see below), but nothing too heavy with words.  My thinking was that if they had prepared reports that they knew were not quite truthful, it would be hard to withdraw them before the hearing.  But if you look at the presentations linked below, there's simply not that much content that could be faulted for perjury. It's mainly about plans, which can always be changed. There are claims about how much new money has been budgeted to be spent in Alaska this year and in the future.  Discussions about new projects and new work.  There is even language that talks about new investment in relation to SB 21:
Plans for over $2 billion gross in production adding investments announced since passage of SB21
Note that this only talks about timing, not about cause and effect.  Since the oil companies are in control of when they announce things, there's no reason to believe that this wouldn't have happened if SB 21 hadn't been passed.  Certainly these things take a long time to plan and cost out.  If the passage of SB 21 was the reason for this new investment, then surely they would have said so. But I didn't see that claim in their written documents, only that it happened after SB 21 was passed.

It All Seems To Boil Down To:

Essentially, from what I can tell, this was a show hearing.  SB 21 gave the oil companies a $2 billion a year tax break, which the governor said would increase oil production and state revenue and jobs.  Prop 1 on the Alaska ballot in August would repeal SB 21.  The oil companies were being given a platform to prove how the passage of SB 21 was making Alaska a better place.  French wanted to require them to be subject to perjury prosecution if they lied. Giessel didn't. 

The Reports 

The reports that are linked online through Basis - the legislative website - are essentially Power Points with some text.  I've highlighted the main text below.  The links should take you to the reports themselves.

  • Respol - basically pictures
  • ConocoPhillips - pictures and text
    • $1.7 billion net 2014 Alaska capital budget - 1750 new jobs
    • 2014 exploration update
    • Plans for over $2 billion gross in production adding investments announced since passage of SB21
  • ExxonMobile- mostly pictures with a bit of text, here's what appears to be the key text:
    • More than 729 positions on the slope, many of which are rotational
    • 1,200 positions statewide
    • 85% Alaskans
    • Out of 92 companies, 73 are Alaskan
  • BP   - Pictures and fair amount of bulleted text, below is their Investments in Alaska Summary:
    • Actively investing in the North Slope oil fields
    • Acquiring new seismic data in Northern Prudhoe Bay – 190 sq. miles summer and 220 sq. miles winter season, 150 jobs, ~$78 million, 55 million barrels resource potential
    • Adding 2 new rigs with 200 jobs, $1 billion over 5 years – currently 7 rigs • Testing new drilling completions technology for challenging oil fields.
      i.e.: Sag River potential resource 200 million barrels
    •  Restarted development Milne Point drilling in 2014
    • Appraise/Select stage engineering for West End Prudhoe Bay with potential startup in 2018, $3 billion, peak 2022 est. 40,000 bopd
    • Major facility investments committed to safe & sustainable operations, for example $76 million in 2014 Turnarounds with over 700 people involved, including GC2 Module built at NANA’s Big Lake facility – 79 jobs, $13.5 million, potential 2,000 bopd.

Here's the ConocoPhillips disclaimer:

The following presentation includes forward-looking statements. These statements relate to future events, such as anticipated revenues, earnings, business strategies, competitive position or other aspects of our operations or operating results. Actual outcomes and results may differ materially from what is expressed or forecast in such forward-looking statements. These statements are not guarantees of future performance and involve certain risks, uncertainties and assumptions that are difficult to predict such as oil and gas prices; operational hazards and drilling risks; potential failure to achieve, and potential delays in achieving expected reserves or production levels from existing and future oil and gas development projects; unsuccessful exploratory activities; unexpected cost increases or technical difficulties in constructing, maintaining or modifying company facilities; international monetary conditions and exchange controls; potential liability for remedial actions under existing or future environmental regulations or from pending or future litigation; limited access to capital or significantly higher cost of capital related to illiquidity or uncertainty in the domestic or international financial markets; general domestic and international economic and political conditions, as well as changes in tax, environmental and other laws applicable to ConocoPhillips’ business and other economic, business, competitive and/or regulatory factors affecting ConocoPhillips’ business generally as set forth in Item 1A of ConocoPhillips’ 2012 Form 10-K and in our other filings with the Securities and Exchange Commission (SEC).

Other notes:

I also called Sen. Giessel's office to ask her about these statements and to see if I had missed anything.  I talked to an aide, who, after my first question - about what professional standards the Senator was referring to when she said it was 'unprofessional' said he'd have the Senator call me back and answer the questions.

That was Wednesday.  My cell phone did ring.  I got a call from "an inmate of Grayson County" that I could accept for $9.99. I assumed it was not Sen. Giessel so I hung up.
It's Saturday now and there have been no messages from her on my phone.

Title Note:  I didn't comment on Sen. Giessel's grammar because:
a.  it's not really relevant
b.  it's a quote and not necessarily accurate
c.  much of our spoken English wouldn't pass grammar tests when written down

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