Legislature(2007 - 2008)CAPITOL 106
03/24/2007 10:00 AM House STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| HB92 | |
| HB151 | |
| HB171 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 13 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 92 | TELECONFERENCED | |
| += | HB 151 | TELECONFERENCED | |
| += | HB 171 | TELECONFERENCED | |
HB 92-JURISDICTION OF OMBUDSMAN 10:05:57 AM CHAIR LYNN announced that the first order of business was HOUSE BILL NO. 92, "An Act removing the victims' advocate and the staff of the office of victims' rights from the jurisdiction of the office of the ombudsman in the legislative branch." 10:06:20 AM REPRESENTATIVE BILL STOLTZE, Alaska State Legislature, offered an introduction of HB 92 as joint prime sponsor. He indicated that the bill clarifies the jurisdiction of the state ombudsman related to the Office of Victims' Rights (OVR). He said he was one of the staff members who worked on the creation of OVR as an office designed to be "a side-by-side entity" to the Office of the Ombudsman and enforce the rights of victims as strongly mandated by the legislature and approximately 83 percent of the voting public in 1994. He said, "This was really the implementing statute for that constitutional amendment." He said the question at hand is whether or not the state should have a strong victims' right agency that has the autonomy to be able to enforce the constitutional rights of crime victims. 10:09:17 AM REPRESENTATIVE RALPH SAMUELS, Alaska State Legislature, as joint prime sponsor, explained that the Office of Victim's Rights has gone through several iterations. He noted that at one time, OVR was going to be housed in the executive branch. Then Governor Tony Knowles vetoed that creation, which Representative Samuels said in hindsight was a good thing. He explained if that had been allowed, OVR would have been investigating entities such as the Department of Law, the Public Defender's Agency, or the Department of Public Safety, and all the roads from those departments lead to the governor. He added, "So, you would have been investigating yourself." REPRESENTATIVE SAMUELS said eventually the Office of Victims' Rights was put into the legislative branch. Whereas the Office of the Ombudsman can investigate citizens' claims of problems with departments, OVR is an ombudsman solely for the victims of crimes, can hire attorneys, and has its own code of ethics, he explained. He said the purpose of the bill is to ensure that both the agencies answer to the legislature - not to each other. He stated that he and Representative Stoltze were active in the creation of a separate OVR and never meant it to be a subsection of the Office of the Ombudsman. 10:11:41 AM REPRESENTATIVE SAMUELS, in response to a question from Representative Doll, said a person who has an issue with how he/she is being treated by OVR would appeal directly to the legislature. 10:12:46 AM REPRESENTATIVE STOLTZE indicated that the legislature has a strong voice regarding OVR. 10:13:46 AM REPRESENTATIVE GRUENBERG noted that the statute that is being amended [AS 24.55.330(2)] relates to jurisdiction of the Office of the Ombudsman. He said all judicial judges would be exempted from that statute, but hearing officers and administrative law judges in the new Office of Administrative Hearings were not included in the language. He surmised that HB 92 must have been written before that office was created. 10:14:31 AM REPRESENTATIVE STOLTZE said he does not have an answer to that. REPRESENTATIVE GRUENBERG said he will not offer an amendment, but it is an issue that should be discussed in the next committee of referral. 10:15:31 AM KATHY HANSEN, Interim Director, Office of Victims' Rights, said she has been a staff attorney at OVR for three years. She stated support for HB 92. She offered her understanding from having spoken with the director of the Office of the Ombudsman that that office's policy is to refer any crime victims who request assistance or have complaint straight to OVR without investigation. She stated that every one of the attorneys who works at OVR has been a prosecutor and has criminal law experience. She referred to AS 24.65.200, which read as follows: Sec. 24.65.200. Victims' advocate's privilege not to testify or produce documents or other evidence. Except as may be necessary to enforce the provisions of this chapter, the determinations, conclusions, thought processes, discussions, records, reports, and recommendations of or information collected by the victims' advocate or staff of the victims' advocate are not admissible in a civil or criminal proceeding, and are not subject to questioning or disclosure by subpoena or discovery. MS. HANSEN cited AS 24.65.180, which read as follows: Sec. 24.65.180. Judicial review. A proceeding or decision of the victims' advocate may be reviewed in superior court only to determine if it is contrary to the provisions of this chapter. MS. HANSEN said the purpose of Section 180 was so that "the director's discretion on crime victims' complaints would be final and not subject to another review by another agency." She said if the [Office of] the Ombudsman had authority to investigate OVR, there could be disparate outcomes. For example, the ombudsman could reverse a decision of OVR, but with less information and expertise in the area of crime victims' rights. MS. HANSEN said OVR's attorneys also have an advocacy function, in which they can litigate and provide free legal services to crime victims and, when appropriate, file pleadings, appear in court, and conduct behind the scenes advocacy. For example, a lawyer in OVR can enhance criminal punishment when appropriate during plea negotiations, and can ensure that crime victims receive full restitution. Furthermore, OVR can access clemency files from the governor's office and state court judges' confidential documents and files. An OVR lawyer can look at pre-sentence reports and advise victims regarding a judge's sentence and whether or not to object to a plea agreement. Ms. Hansen said that is not something the ombudsman should be allowed to do even indirectly, because he/she might reverse advice given by OVR. She said OVR is also involved with ongoing criminal investigation. She said lawyers at OVR can give the crime victim an independent legal opinion as to whether a matter was timely and thoroughly investigated and whether it is or is not a viable case for prosecution. 10:20:27 AM MS. HANSEN said HB 92 is a simple fix that would change the language related to the definition of agency. A more complex fix would be to restructure AS 24.55 to allow the ombudsman to have those additional duties and possibly add attorney staff. She said OVR thinks it is appropriate to be reporting directly to the legislature, and the fact that OVR's attorneys must follow a code of ethics and rules of professional conduct is an added bonus to the clients of that agency. One of those rules, she pointed out, is that OVR provides due diligence to its clients; therefore, in addition to being able to complain to the legislature about any problems that might arise related to OVR, they could also complain to the Alaska Bar Association. Ms. Hansen concluded that in order to stem any confusion or litigation, the bill must clearly show that the legislature intends for OVR to be the special ombudsman for crime victims. 10:21:40 AM REPRESENTATIVE GRUENBERG stated concern that [the Office of the Ombudsman], without this bill, would have access to the privileged information held by OVR. He asked if there is any other way that that confidential information could be obtained that should be of concern. MS. HANSEN answered no. She offered further details. 10:23:02 AM LINDA LORD-JENKINS, Ombudsman, Office of the Ombudsman, testified in opposition to HB 92. She said passage of the bill would take an action no legislature has seen fit to take in the 32 years since the Office of the Ombudsman was created. She continued: I believe this issue has arisen because an ombudsman complainant, referred by my office to OVR for assistance, returned to the ombudsman to complain that OVR had not adequately investigated her complaint before declining to take further action. This complainant has authorized me to discuss some aspects of this complaint, but ... I'm not going to discuss very much. The issue here is an issue of ensuring that a vulnerable young woman who was horribly victimized is afforded the dignity and respect and assistance to which she is entitled. I'd like to state that the Office of the Ombudsman recognizes the importance of the work done by OVR. My opposition to this bill should not be interpreted in any way as minimizing the value of the victims' advocate or the assistance it provides to victims of crime. My office repeatedly refers complainants to OVR if it appears that OVR is better suited to handle a complainant's issue, and I made such a referral as recently as Monday evening. I plan on continuing to do so. However, I believe that the mandate of the ombudsman enabling a legislation requires that we ... review or investigate complaints against state agencies, and especially so when we receive complaints about the quality of the services received after our referrals. I must take exception to the characterization that OVR is the special ombudsman for crime victims. An ombudsman is an impartial fact-finder - an impartial neutral - who investigates complaints about those agencies subject to its jurisdiction. The position that OVR is a special ombudsman for crime victims is contrary to every public statement of mission and purpose heretofore made by OVR. Since its inception, OVR was considered an advocate for crime victims, not an impartial investigator. Stephen Branch Flower, the first victims' advocate, characterized OVR as a uniquely, publicly funded victims' rights law firm. As this victims' rights law firm, OVR is authorized to represent crime victims in criminal or juvenile court proceedings to ensure that the rights provided by Alaska's Constitution ... and laws are afforded. That's why OVR is an agency created by the legislature. The best characterization of the services OVR provides to victims is as an attorney. The record reflects that OVR distinguished itself from the ombudsman in its argument from Cooper v. District Court, Alaska 2006. OVR specifically argued that the Copper/Court's comparison of OVR to the ombudsman was an error, as OVR - unlike the ombudsman - has the responsibility of advocacy. OVR stressed the provisions of Alaska 24.65.110, authorizing its advocacy for crime victims. OVR also pointed to the fact that while the ombudsman is expressly prohibited from intervening in ongoing court proceedings, OVR is expressly authorized to intervene on behalf of crime victims. Other advocacy or investigatory agencies are within the ombudsman's jurisdiction: the long-term care ombudsman, Adult Protective Services, the Department of Public Assistance Fraud Unit, the Human Rights Commission, Alaska Judicial Council, and the Alaska State Troopers all perform investigations. None are excluded from the ombudsman's jurisdiction for fear of adding an unnecessary layer of investigation, nor in my 19 years with the ombudsman's office has the ombudsman been accused of unnecessary oversight of these agencies. OVR is not unique in being either an advocate or an investigator; its functions do not require exceptions from the ombudsman's jurisdiction. Arguments that being subject to ombudsman oversight would add an unnecessary layer of investigation or result in the ombudsman's reversal of a discretionary decision of the victims' advocate reflect a misunderstanding of the work of the ombudsman. It is not the authority or intent of the ombudsman to reinvestigate victim complaints against district attorneys, law enforcement, et cetera. Instead, investigation of OVR's actions - whether reasonable efforts to investigate victims' complaints are made, whether more weight was given to police officers' perspective than the victims' well-being, whether victims of different backgrounds and abilities are treated equally, whether OVR complies with its own statutes and regulation - is what is contemplated. Thus, it is not an additional layer of investigation of a victim-complainant issue. 10:27:50 AM Nor does an ombudsman oversight present a huge burden of labor for the OVR. In the year since OVR was created, the ombudsman has received only two complaints against the agency. One was closed because of ombudsman review of OVR statutes in light of the Cooper decision. The other remains open, pending a dispute over access to records. The fact that OVR employs attorneys and litigates does not make it unique. The Public Defender Agency, the Office of Public Advocacy, and the Department of Law all litigate and have specialized expertise. Each is an integral part of state government providing services to thousands and affecting each and every Alaskan. The legislature placed all these agencies within the ombudsman's jurisdiction. The ombudsman is empowered to investigate these agencies without interfering with court proceedings or infringing upon the privilege of the agencies' clients. OVR provides the same sort of services to Alaskans and so should be held to the same standards of oversight. Neither is it within the ombudsman's power to contravene the discretionary action taken by a governmental agency, as long as that action is a reasonable and lawful exercise of the agency's discretion and is taken after thorough review of all the facts. If, in the course of an investigation, a reasonable exercise of discretion based on relevant and proper grounds is found, the ombudsman cannot and would not act to reverse such a decision. If, however, investigation reveals arbitrary and capricious exercises of discretion, based on improper or irrelevant grounds, then the ombudsman is authorized to suggest alternate courses of action. Additionally, we believe the fact that the OVR has access to records of active criminal investigations while the ombudsman does not is irrelevant. The case at hand centers on the absence of investigation, including the absence of an active criminal investigation. AS 24.55.160 does not preclude access to OVR's records of this victim's complaint, despite the reference to the exclusion of records of active criminal investigations. The point in the situation at hand is that we have a complainant alleging that there was no real investigation of the crime committed - that what review was done was conducted in a highly improper, totally insensitive manner, and there's no active or ongoing investigation of such crime by the police department or any other law enforcement agency. OVR's investigation - if there was or is one - does not constitute an active criminal investigation. Finally, the ombudsman provides oversight nowhere else available through [the] victims' advocate. Only the ombudsman has statutory authority to review OVR rules and OVR staff. Our review of the OVR statute does not indicate that even the legislature has access to OVR files. If not the ombudsman, who does oversee OVR? "Who oversees the ombudsman?" you may ask. The legislature oversees the ombudsman and when the complainant grants the ombudsman permission to discuss complaints, we discuss them with legislators. Again, ... I am not in any way minimizing the value of the victim's advocate or the assistance it provides to victims of crime. This is not an issue of one agency being more or less important than the other. This is an issue of insuring that [a] vulnerable young woman who was horribly victimized is afforded the dignity and respect and assistance to which she is entitled. For this reason I respectfully must enter my opposition to HB 92. 10:31:16 AM REPRESENTATIVE JOHNSON asked Ms. Lord-Jenkins if the Office of the Ombudsman is also the investigating agency responsible for the aforementioned case. MS. LORD-JENKINS responded that the Office of the Ombudsman does not have jurisdiction over the law enforcement agency. In response to a follow-up question from Representative Johnson, she reiterated that in the time since OVR's inception, the Office of the Ombudsman has only received two complaints about that entity. She mentioned one other case related to hours, but said that was not a complaint against the victims' advocate. 10:32:47 AM MS. LORD-JENKINS, in response to Representative Doll, relayed that the Office of the Ombudsman currently has 8 staff: one ombudsman, one administrative/intake officer, one intake officer, and five investigators. She said the office has requested one additional investigator during the coming fiscal year. The office began in 1975, with 7 staff members, increased to 26 investigators by 1986, decreased to 13 in 1987, increased to 22 investigators in 1992, decreased to 11 in 1995, and further reduced its staff in fiscal year 1997. The office was granted one additional investigator in fiscal year 2006, she said. She continued: Our jurisdiction is to investigate complaints about the administrative actions of State of Alaska agencies. We do not have jurisdiction over elected officials. We do not have authority to intervene in matters that have been decided in court. We limit the ... issues that we investigate by regulation. If a matter is subject to a collective bargaining agreement, such as many state employees are governed by, we don't investigate an action; that would be subject to that agreement. We don't investigate actions about which the complainant has known for more than a year and not taken an action on. So, someone cannot call us and say, "Well, back in 1996, the state did this, and I want you to look at it now." We have no statutory authority over individual municipalities unless they contract with us. We have no statutory authority over the actions of private companies [or] private individuals. MS. LORD-JENKINS, in response to Representative Doll, said the present caseload year is less than it was in 1986 and 1995. She explained, "That's more of a function of how we've done outreach, and how we ... handle complaints." She said the office no longer takes live complaints, but takes in filled out complaint forms. She said the office continually makes improvements to its service, and she reported that the complaint load is increasing. In addition to handling specific complaints, she said, the office has had approximately 1,300 "intake referrals" whereby it sends people to the proper entity to solve the questions they have presented to the ombudsman. 10:36:59 AM REPRESENTATIVE DOLL summarized that Ms. Lord-Jenkins is saying that there are less people working in the Office of the Ombudsman, but there are an increasing number of complaints. MS. LORD-JENKINS confirmed that is correct. REPRESENTATIVE DOLL emphasized the importance of having "checks" in government. Furthermore, she stated her belief that it is important to strengthen and encourage the jurisdiction of the Office of the Ombudsman. She directed attention to a memorandum in the committee packet from Tamara Cook, [Director, Legislative Legal and Research Services, dated March 23, 2007, regarding the authority of the ombudsman over records of OVR]. She said that in the memorandum Ms. Cook notes that the ombudsman does have rights over OVR related to jurisdiction. She stated her support of the ombudsman and said she would not support HB 92. 10:38:31 AM MS. HANSEN, in response to a question from Representative Gruenberg, confirmed that an attorney could file an ethics complaint with the [Alaska Bar Association] against any OVR staff member. She said anyone could issue a complaint to the Bar Association. She said if the complaint was that OVR was not following its own statute, court action could be taken to have the court issue an order that OVR must follow its statutes. The complainant could also go to legislature, she said. 10:39:40 AM REPRESENTATIVE GRUENBERG asked, "If that process were followed, what access would they have to your records, et cetera?" MS. HANSEN answered that the court would only be able to look at whether [OVR] was following its own statutes. She reiterated that AS 24.65.180 is the statute that addresses what review is allowed superior court judges, while AS 24.65.200 gives OVR the statutory privilege not to disclose its records "by subpoena or through discovery in court proceedings." 10:40:50 AM REPRESENTATIVE GRUENBERG asked if the following entities would have any jurisdiction to investigate complaints: the Select Committee on Legislative Ethics, Legislative Council, Legislative Budget & Audit, or the [House or Senate] Judiciary Standing Committee[s]. MS. HANSEN indicated that typically, individual legislators inquire through their aides, and OVR provides them with the information requested. She offered her understanding that the Select Committee on Legislative Ethics has the authority to review OVR. 10:41:49 AM REPRESENTATIVE STOLTZE said he thinks the aforementioned memorandum from Legislative Legal and Research Services strengthens the need for HB 92. He noted that a large percentage of the caseloads of the Office of the Ombudsman are from convicted felons. He said sensitivity to victims is a concern. He mentioned inherent conflicts and stated: It wouldn't take very long for one to bump into another when you're ... investigating a claim of a convicted felon who's incarcerated and you're bumping into a victims' rights issue - it doesn't take very long with ... any kind of expanded caseload. ...Originally, we had the Office of Victim's Advocacy, and there was a concern that the names were too close together and people -- that's the level of sensitivity .... So, we changed the name in our ... drafting process and through the committee process. REPRESENTATIVE STOLTZE noted that the Office of Victims' Rights does not use general funds; it's funded through the use of dividends from convicted felons. It has also spun off to fund other entities, including the Council on Domestic Violence and Sexual Assault and victims' compensation. Conversely, the Office of the Ombudsman is asking for another $100,000 this year. He continued: It doesn't escape me that a big chunk of their constituency that they ... respond to are people that are incarcerated felons. ... That sort of rubs me .... REPRESENTATIVE STOLTZE, regarding jurisdiction, said unlike many other entities, OVR is an entity housed within the legislative branch, and its director is confirmed by a super majority of the legislature. He concluded: ... This is deeply rooted in philosophy .... I've heard a little bit about the referenced case, and it's a very sympathetic case, and I don't know whether ... it was botched up - it was evidentiary issues. You know, these things are complicated. ... Victims' rights cases are ... fraught with a lot of emotion. ... I don't know the facts, and the one case ... is certainly important, but probably not enough to change your determination of whether or not ... this entity should be independent. ... I can express very certainly that was the ... will of the legislature, being in on the birthing. 10:46:06 AM REPRESENTATIVE SAMUELS said the legislature creates an ombudsman to ensure that each agency is doing its job. He indicated that both [the Office of the Ombudsman and OVR] were "created to be equal." He said he does not agree with Ms. Lord-Jenkins. He stated: It was created after our ombudsman statute, and ... you can go to the Bar Association, you can go to the [Select Committee on Legislative Ethics], you can go to your legislator - the same as if you had a problem for an ombudsman. If you always have to have somebody looking over your shoulder you'd have yet another ombudsman's office, and yet another one on top of that. Both of them go to the legislature. ... If you're investigating a woman who was raped, and you are investigating a complaint by the man who raped her, at the same time, you have a problem. REPRESENTATIVE SAMUELS reminded the committee that there have only been two complaints. He said if a person does not like the action of OVR, he/she can take other avenues. The same holds true regarding the Office of the Ombudsman, he said. REPRESENTATIVE STOLTZE said appeals can be made through either entity. 10:48:35 AM CHAIR LYNN closed public testimony. 10:49:00 AM REPRESENTATIVE COGHILL stated: First of all, the fact that the rights of crime victims rose to the level of a constitutional amendment - Article 1, Section 24 - gives it kind of a special place. And so, I'm going to vote for the bill, because I really do believe that one of the troublesome things in our justice system is that justice sometimes can be lost in the process. And this, I think, gives us the opportunity to focus that process. REPRESENTATIVE COGHILL said Ms. Lord-Jenkins brought up the issue of accountability, and he said he thinks the legislature should keep watch on that issue. He stated his support of HB 92. 10:50:07 AM REPRESENTATIVE GRUENBERG said difficult cases can make bad law. He noted that a high level of the ombudsman's cases involve representing defendants. He stated, "That would create a real, chilling effect on the Office of Victims' Rights if they could turn around then and investigate the agency that represents the victims. That would be a significant conflict of interest." He continued: This case that has been brought to our attention is an unusual case where the allegation was that the agency that's supposed to represent the victim didn't represent the victim. ... If we didn't do something about it, it could potentially create a much larger problem with the fact that the ombudsman's more often representing the other side - the defendant. ... So, it's flipped around, and that has caused ... one of the problems here. REPRESENTATIVE GRUENBERG said the question is where people would go if they had a problem with OVR. He echoed the comments of Ms. Hansen that alternatives include: the Alaska Bar Association, the Select Committee on Legislative Ethics, and potentially some committees in the legislature. He said he is sensitive to the concerns expressed by [Representative Doll], but suggested that "that's an issue for another day." He said he will support HB 92, because he said he wants to avoid serious conflicts of interest. 10:53:42 AM REPRESENTATIVE GRUENBERG [moved to report HB 92 out of committee] with individual recommendations [and the accompanying fiscal notes]. REPRESENTATIVE DOLL objected. 10:53:59 AM A roll call vote was taken. Representatives Gruenberg, Coghill, Johansen, Johnson, and Lynn voted in favor of moving HB 92 out of committee. Representative Doll voted against it. Therefore, HB 92 was reported out of the House State Affairs Standing Committee by a vote of 5-1.
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