Legislature(2007 - 2008)BELTZ 211
05/09/2007 09:00 AM Senate STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| SB162 | |
| SB171 | |
| HB92 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 162 | TELECONFERENCED | |
| += | SB 171 | TELECONFERENCED | |
| += | HB 92 | TELECONFERENCED | |
| + | SJR 9 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 92 - JURISDICTION OF OMBUDSMAN: VICTIMS RTS
9:32:57 AM
CHAIR MCGUIRE announced consideration of HB 92.
BEN MULLIGAN, Staff, to Representative Stoltze, bill co-sponsor,
introduced the bill to the committee. The bill would remove the
Office of Victims Rights (OVR) from the Ombudsman's
jurisdiction. When the OVR was created it was meant to act as a
sister agency to the Ombudsman. The reason for this bill is to
remove a potential conflict between the two offices. For
example, the Ombudsman could be representing an incarcerated
individual and ask the OVR for information about that
individual's victim.
9:34:37 AM
LINDA LORD-JENKINS, Ombudsman, Anchorage, testified that she is
opposed to the bill. She recognizes the importance of the work
done by the OVR and referrals are routinely made to them if it
appears they are better suited to handle a complainant's issues.
This legislation is a result of a complainant's dissatisfaction
with OVR action.
MS. LORD-JENKINS stated that OVR has taken the position that
their office is a special Ombudsman for crime victims. This
position is contrary to every public statement of mission
previously made by OVR. Arguments that Ombudsman oversight would
add an unnecessary layer of investigation or reverse an OVR
decision reflects a misunderstanding of her office's function.
Investigation of OVR actions and whether they comply with their
own statutes and regulations is what is considered. OVR
functions do not require exemption from Ombudsman jurisdiction.
MS. LORD-JENKINS also said Ombudsman oversight does not present
a huge burden of labor for OVR. In the years since OVR was
created, The Ombudsman has received only two complaints against
the agency. Additionally an agency cannot be forced to take an
action. If an investigation "reveals arbitrary and capricious
exercises of discretion based on improper or irrelevant grounds"
then the Ombudsman is authorized to recommend alternate courses
of action.
MS. LORD-JENKINS' concern is if the Ombudsman doesn't have
jurisdiction to investigate complaints against OVR who does. OVR
has asserted that complainants can protest to the Alaska Bar
Association. However, the bar investigates ethical complaints
not allegations about the completeness of an investigation.
Ombudsman review of the statutes indicates OVR's assertion that
the legislature has authority to investigate complaints against
OVR is not entirely correct. Alaska statute 24.65.110(d)
requires that no confidential information be released to any
person. Before the legislature determines that OVR should be
removed from Ombudsman jurisdiction, a legal opinion should be
requested.
MS. LORD-JENKINS said the question has been raised that the
Ombudsman has a conflict of interest when investigating OVR
complaints because the Ombudsman accepts complaints from inmates
against the Department of Corrections. The number of complaints
filed by inmates is large but the Ombudsman does not advocate
for inmates. The Ombudsman's role is to determine if a state
agency action is fair and reasonable. Additionally, mechanisms
are in place to prevent a conflict between an OVR represented
victim and a person accused of the crime. Ms. Lord-Jenkins
strongly encourages rejecting the bill.
9:44:49 AM
SENATOR BUNDE asked if this bill originates from a single case.
MS. LORD-JENKINS answered yes.
SENATOR FRENCH commented that AS 24.55.100 authorizes the
Ombudsman to investigate the administrative acts of agencies.
Investigation of the governor, lieutenant governor, a member of
the legislature, and justices of the Supreme Court are excluded.
He asked if this bill would add the Office of Victims Rights to
that list of excluded offices.
MS. LORD-JENKINS answered yes.
SENATOR FRENCH asked if individuals with complaints against
defense or prosecuting attorneys had the right to be heard by
the Ombudsman.
MS. LORD-JENKINS answered yes, the Ombudsman has jurisdiction
over the Department of Law.
9:46:48 AM
SENATOR FRENCH referred to the sponsor statement that says, "The
OVR is staffed by attorneys with specialized knowledge; the
Ombudsman is not. This raises the question of 'institutional
competency' when the Ombudsman lacks that special legal
knowledge necessary to investigate." He noted that the Ombudsman
is already overseeing legal decisions and asked how many years
this has been the case.
MS. LORD-JENKINS answered since the office was formed in 1975.
SENATOR FRENCH asked who would handle a complaint against OVR
actions if this bill passed.
MS. LORD-JENKINS answered she did not know.
9:49:46 AM
KATE BERKHARDT, Assistant Ombudsman, Juneau, said if this bill
passed OVR would be immune from all oversight. An individual
could complain about OVR to their legislator but statutes
ensuring confidentiality would prevent OVR from providing
information to the legislator investigating the complaint.
KATHY HANSEN, Victims Advocate Attorney, Office of Victims
Rights, Anchorage, said Ms. Lord-Jenkins is mistaken about the
statutory role and obligations of the OVR. Alaska statute 24.65
assigned advocacy and ombudsman duties to the Office of Victims
Rights. The Court of Appeals held that the OVR is the special
Ombudsman for crime victims in Alaska. If HB 92 does not pass an
Ombudsman will have the authority to investigate an Ombudsman.
OVR's position is that would be an unnecessary layer of
oversight and waste of resources. If there is a question about
OVR's statutory authority the place to address it is in AS
24.65.
MS. HANSEN said she is concerned that if HB 92 does not pass
victims might go to the Ombudsman or the OVR for help and they
might obtain different findings. Ombudsman findings might not be
based on a complete understanding of the criminal justice
system. She said legislative intent in AS 24.65 was to give the
OVR director final discretionary decision on cases that come
before them. Even superior court judges cannot review the
discretionary decisions of the OVR. All the court can do is hear
complaints that OVR is not following its own statutory
requirements.
MS. HANSEN said provisions in AS 24.65.200 exempt OVR from
subpoena or discovery of privileged information. Even the
Ombudsman is prohibited from access to privileged information
held by the OVR. The simple fix is to pass HB 92. If the
legislature decides it wants the Ombudsman to have oversight
over OVR, AS 24.55 will need to be substantially restructured.
9:58:27 AM
CHAIR MCGUIRE said her concern is for an individual to retain
access to the complaint process. The senator feels if this bill
passes, an individual's rights may get quashed.
MS. HANSON responded that protecting those rights is an
important concern. ORV already has greater protections in place
for crime victims than the Ombudsman. Because the OVR is staffed
by bar certified attorneys they operate under Alaska Bar
Association ethical standards. If a client is dissatisfied with
the way a case is investigated they can go to the bar
association or to their legislator for assistance.
10:00:58 AM
CHAIR MCGUIRE announced HB 92 would be set aside for further
discussion.
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