Legislature(2013 - 2014)BELTZ 105 (TSBldg)
03/25/2013 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing: Select Committee on Legislative Ethics | |
| SB72 | |
| SJR9 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | SB 72 | TELECONFERENCED | |
| += | HB 69 | TELECONFERENCED | |
| += | SJR 9 | TELECONFERENCED | |
SB 72-OMBUDSMAN
1:39:14 PM
CHAIR COGHILL announced the consideration of SB 72.
BETH LEIBOWITZ, Assistant Ombudsman, Office of the Ombudsman,
introduced herself and stated that Ombudsman Linda Lord-Jenkins
was available on-line to answer questions. She asked the chair
how he would like her to proceed.
CHAIR COGHILL requested an overview of the bill.
MS. LEIBOWITZ explained that it has been about 20 years since
the ombudsman's office has had substantive revision to its
enabling legislation. She related that changes need to be made
to the confidentiality provisions. The first request is to amend
the testimonial privilege to express that the ombudsman's office
does not testify in court, produce documents, attend
depositions, or go to administrative adjudications, except as
necessary to enforce provisions of the Ombudsman Act.
The second request is to have confidentiality extended to
communications with the executive branch agencies that are
investigated so that those communications can be taken out of
the public records realm. The current statute requires the
ombudsman's office to provide a confidential preliminary report
to the agency under investigation. The agency cannot release
that report to the public, but there is no similar prohibition
for all the correspondence leading up to that confidential
report.
CHAIR COGHILL asked if that is found in Sections 4 and 5.
MS. LEIBOWITZ said that would be Section 4. Section 5 deals with
attorney/client privilege, and the ombudsman's office does not
have access to attorney/client privileged documents.
She restated that the ombudsman's office requests that if an
agency offers material to explain its actions, that information
be held confidential.
MS. LEIBOWITZ said the ombudsman's office is also requesting a
statutory provision that provides for an informal investigative
report - something between a complaint that is closed as
premature or declined, and a full, formal investigative report
signed by the ombudsman. This request is found in Sections 6
through 9.
She discussed the procurement statute, which is outdated and
needs to be brought into alignment with the legislative
procurement policies.
MS. LEIBOWITZ described two personnel housekeeping provision
requests. One is to unfreeze the ombudsman's salary, which is
currently set by statute at Step A, Range 26. The ombudsman's
office is the only legislative agency where the salary is set at
a given range and frozen. The request is that the range is set
at 26, with the ability to move through the steps.
1:45:24 PM
The second personnel request is to clarify that the ombudsman's
office can hire personal services contract employees just as the
rest of the legislative branch can. Current statutory language
is not clear regarding that issue.
CHAIR COGHILL responded favorably to the salary issue
recommendation. He inquired if the bill would take what is
currently in place for the legislature and apply it to contract
procedures and the procurement code for the ombudsman's office.
MS. LEIBOWITZ agreed.
1:46:43 PM
SENATOR OLSON asked why the confidentiality clause needs to be
changed. He asked if there had been problems.
MS. LEIBOWITZ replied that there have been very few problems,
but a recent request brought to light that the confidentiality
statute needed clarification.
1:47:54 PM
SENATOR OLSON asked if the ombudsman's position has been
difficult to fill due to the salary issue.
MS. LEIBOWITZ said she did not think so, but because of term
limits a new ombudsman would have to be appointed in a few
years.
CHAIR COGHILL asked why the range was exempted from step
increases.
MS. LEIBOWITZ said she was not sure. She explained the history
of the ombudsman's salary since the Ombudsman Act in 1975. In
2001, the Office of Victim's Rights was created and the victim's
advocate received exactly the same compensation as the ombudsman
- Range 26, Step A. Last year, the victim's rights statute was
amended to remove the "Step A" limiting language, and the
ombudsman's office is asking for parity.
1:49:46 PM
MS. LEIBOWITZ explained that the bill provides for two areas of
jurisdictional determination from the legislature. The first is
found in Section 1 and requests a determination whether or not
the ombudsman's office is supposed to investigate complaints
about the Alaska Bar Association (ABA). She explained that the
matter has remained unresolved since 1980 when it first came up.
She pointed out that the Alaska Ombudsman has jurisdiction over
the administrative portions of the judicial branch. She related
that she has done the analysis used by the Alaska Supreme Court
to determine what is a state agency, and it is not clear if the
ABA is or not. She could not predict what a court would rule
about the ABA's status relative to the Ombudsman Act. She
requested that the legislature make the call.
SENATOR MCGUIRE spoke of concerns about changing statute so the
ABA is under the auspices of the ombudsman's office. She asked
what would be the nature of an ombudsman complaint where access
to ABA records would be sought.
MS. LEIBOWITZ replied that there were only about a dozen
complaints against the ABA in the last decade. The majority were
from people filing a grievance against their attorney, usually
in a criminal defense matter. She explained for those cases, in
order to do a full investigation, the ombudsman's office would
have to access ABA records. This would appear to create a
problem for the ombudsman's office because ABA rules appear to
restrict access.
SENATOR MCGUIRE asked what trade associations can be
investigated by the ombudsman's office, such as the Alaska
Medical Association, the Alaska Dental Association, and the
Alaska Nurses Association.
MS. LEIBOWITZ explained that their office does not have
jurisdiction over the aforementioned agencies. She stated that
they have jurisdiction over state licensing agencies, such as
the Alaska Medical Board, the Alaska Nursing Board, and many
occupational licensing boards within the Department of Commerce,
Community and Economic Development.
1:54:38 PM
CHAIR COGHILL gave an example of a person who has trouble with a
medical provider, is not satisfied with the medical board's
review, and takes their complaint to the Office of the
Ombudsman, who will deal with the complaint at the board level.
MS. LEIBOWITZ said often the ombudsman is not able to satisfy
the complainant because he/she is not able to talk about
confidential material.
CHAIR COGHILL asked what the ombudsman would do if he/she found
a board operated improperly.
MS. LEIBOWITZ said the ombudsman would be able to make
recommendations to the medical board at the division level and
at the professional level.
CHAIR COGHILL said that is similar to the ABA in that they
police their own.
MS. LEIBOWITZ agreed that they act as a licensing agency.
CHAIR COGHILL asked what the next recourse was for someone who
did not agree with an attorney and appealed to the ABA, but was
not satisfied.
MS. LEIBOWITZ explained that there are several layers of review
within the ABA. After that the person can request the Alaska
Supreme Court to review the matter.
1:57:18 PM
CHAIR COGHILL said he understood that dues-paying entities have
oversight by the Alaska Supreme Court. He inquired how the ABA
could be considered a state agency when it does not receive
state funding.
MS. LEIBOWITZ said it was a call the legislature would have to
make. She agreed that the ABA does not receive state funding,
but it does conduct state licensing. The lack of public funding
is one of the factors in favor of the ABA not being considered a
state agency.
CHAIR COGHILL said it creates an interesting conundrum because
lawyers who become judges are members of the ABA.
MS. LEIBOWITZ highlighted that the ABA is not a voluntary
association.
CHAIR COGHILL compared it to legislators sitting on the Select
Committee on Legislative Ethics.
MS. LEIBOWITZ offered her understanding that three members of
the Board of Governors of the Alaska Bar Association are public
members appointed by the governor.
CHAIR COGHILL asked if there is an avenue other than the
ombudsman to deal with ABA issues; if the ABA is not serving
with integrity, there should be another authority.
MS. LEIBOWITZ emphasized that it is a matter of clarifying that
the Office of the Ombudsman has the authority to investigate the
ABA. She offered to provide the committee with the analysis of
the history of the issue and the potential pitfalls regarding
ABA rules versus the Ombudsman Act.
CHAIR COGHILL said he would like the information. He requested
Mr. Van Goor's opinion.
STEVE VAN GOOR, Bar Counsel, Alaska Bar Association (ABA),
agreed with Ms. Leibowitz's analysis of the ABA's oversight
abilities. For example, if someone makes a complaint against a
lawyer, that person can have the ABA's decision reviewed by a
member of the Board of Governors. If a complainant still
disagrees, he/she can appeal to the Alaska Supreme Court. He
added that the bar rules outline a specific path for the
investigation of complaints and the prosecution of unethical
conduct.
2:02:49 PM
MR. VAN GOOR spoke of legislative performance audits of the ABA
since 1980, all of which have resulted in a recommendation of
continuation of the ABA as the agency responsible for the
admission and discipline of lawyers. He stated that the ABA is
responsible to all three branches of state government.
He said of the 3,079 complaints that have come before the ABA,
only a dozen or so made it to the ombudsman's office. He spoke
of the adverse public policy effect if confidential
investigations are made public. Lawyers would be less candid if
they knew their clients' complaints could be made public. He
explained a concern of the Public Defender Agency.
He emphasized that due to privacy concerns, the ABA would have
to take this issue to the Alaska Supreme Court if the provision
were to be adopted. He concluded that the ABA should not be
subject to the Office of the Ombudsman.
2:07:20 PM
CHAIR COGHILL stressed the importance of the individual's
ability to make a complaint and the difficulty for a person to
have to go to the Alaska Supreme Court. He asked for an example
of how an individual could have a complaint resolved by means of
due process.
MR. VAN GOOR explained the steps to address complaints. He said
the two most common complaints are neglect and failure to
communicate, or "poor customer service." The first step is to
ensure that the complaint meets the minimum requirements. Then
the complaint is sent to the lawyer for a response. The lawyer
may respond and typically does. The ABA must prove that there is
clear and convincing evidence that there are grounds for the
complaint. He noted that lawyers often don't realize that
neglect and failure to communicate cause most of the problems.
He related that the next step is that the response from the
lawyer is given to the complainant. Then, the ABA must decide if
an investigation is warranted. He pointed out that the ABA does
more than most jurisdictions and will provide an explanation to
the client. Some clients will not be satisfied and will then
have their files reviewed by the board liaison who will decide
whether an investigation is warranted. Those who are not
satisfied can appeal to the Alaska Supreme Court.
He confirmed that appealing to the Alaska Supreme Court is not
easy for the client to do.
2:12:26 PM
MR. VAN GOOR related that since the Anderson decision, which
gave people the authority to appeal to the Alaska Supreme Court,
only about a dozen have done so. After the court accepts the
matter for an original review, the ABA sends the entire file to
the court and responds to the allegations.
CHAIR COGHILL asked for a definition of "original review" and an
explanation of what type of issue ends up under an original
review.
MR. VAN GOOR explained that it is an original application found
under the appellate rules that is a request for review by the
court that does not conveniently fall into other categories in
the appellate rules. It is not a direct appeal, a petition for
review, or a petition for a hearing. It is an original matter
subject to the court's authority, in which a person asks the
court to review the actions.
CHAIR COGHILL asked what types of issues would end up under that
type of review.
MR. VAN GOOR said issues such as when a lawyer fails to
communicate with a client or neglects a client matter.
CHAIR COGHILL observed that these would not involve ethical
questions, rules of procedure, or criminal behavior.
MR. VAN GOOR clarified that most complaints come from domestic
relations cases or from prisoners who complain about ineffective
representation. Under the rules of court, these individuals have
the ability to ask for post-conviction relief, a process in
which representation is reviewed and action can be taken to
address attorney shortcomings. The individuals often fail to
realize that filing a complaint usually ends in no relief. The
ABA can take licensing action against a defense lawyer, but
cannot affect the outcome of a judgment.
He explained two things lawyers do that are unique to the
profession. He discussed ethics issues and rule violations. He
referred to cases in the newspapers that involve conduct that is
clearly wrong. He stressed that if a liaison indicates that an
investigation should be opened, it is opened. He noted that the
court has never reversed a decision made by the ABA.
2:19:13 PM
CHAIR COGHILL observed that the ABA is the single place for
credentialing to practice law and yet the state seems to have a
hand in it without having full authority.
2:19:56 PM
SENATOR WIELECHOWSKI disclosed that he is a member of the Alaska
Bar Association.
CHAIR COGHILL commented that he has served on the Senate
Judiciary Committee with many members of the ABA. He noted the
importance of ABA membership to Alaskans.
LINDA LORD-JENKINS, State Ombudsman, Office of the Ombudsman,
commented that her office is looking for legislative guidance on
SB 72.
[CHAIR COGHILL held SB 72 in committee.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 72 28LS0625A.pdf |
SJUD 3/25/2013 1:30:00 PM |
SB 72 |
| Introduction to Proposed Amendments.pdf |
SJUD 3/25/2013 1:30:00 PM |
SB 72 |
| Chapter 55 Office of the Ombudsman.pdf |
SJUD 3/25/2013 1:30:00 PM |
SB 72 |
| SB072-DOA-OPA-3-15-13.pdf |
SJUD 3/25/2013 1:30:00 PM |
SB 72 |
| SB072-DOA-PDA-3-15-13.pdf |
SJUD 3/25/2013 1:30:00 PM |
SB 72 |
| SB072-DOC-OC-03-15-13.pdf |
SJUD 3/25/2013 1:30:00 PM |
SB 72 |
| Testimony of L M Nussbaum.pdf |
SJUD 3/25/2013 1:30:00 PM |
SJR 9 |
| Senate CS for CS HB 69.pdf |
SJUD 3/20/2013 1:30:00 PM SJUD 3/25/2013 1:30:00 PM |
HB 69 |
| House Majority Poll Dittman Survey SJR 9.pdf |
SJUD 3/25/2013 1:30:00 PM |
SJR 9 |