Legislature(2013 - 2014)CAPITOL 106
03/06/2014 08:00 AM House STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| HB127 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 127 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE STATE AFFAIRS STANDING COMMITTEE
March 6, 2014
8:10 a.m.
MEMBERS PRESENT
Representative Bob Lynn, Chair
Representative Wes Keller, Vice Chair
Representative Lynn Gattis
Representative Shelley Hughes
Representative Jonathan Kreiss-Tomkins
MEMBERS ABSENT
Representative Doug Isaacson
Representative Charisse Millett
COMMITTEE CALENDAR
HOUSE BILL NO. 127
"An Act clarifying that the Alaska Bar Association is an agency
for purposes of investigations by the ombudsman; relating to
compensation of the ombudsman and to employment of staff by the
ombudsman under personal service contracts; providing that
certain records of communications between the ombudsman and an
agency are not public records; relating to disclosure by an
agency to the ombudsman of communications subject to attorney-
client and attorney work-product privileges; relating to
informal and formal reports of opinions and recommendations
issued by the ombudsman; relating to the privilege of the
ombudsman not to testify and creating a privilege under which
the ombudsman is not required to disclose certain documents;
relating to procedures for procurement by the ombudsman;
relating to the definition of 'agency' for purposes of the
Ombudsman Act and providing jurisdiction of the ombudsman over
persons providing certain services to the state by contract; and
amending Rules 501 and 503, Alaska Rules of Evidence."
- MOVED CSHB 127(STA) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HB 127
SHORT TITLE: OMBUDSMAN
SPONSOR(s): RULES BY REQUEST
02/18/13 (H) READ THE FIRST TIME - REFERRALS
02/18/13 (H) STA, JUD
03/12/13 (H) STA AT 8:00 AM CAPITOL 106
03/12/13 (H) Heard & Held
03/12/13 (H) MINUTE(STA)
03/21/13 (H) STA AT 8:00 AM CAPITOL 106
03/21/13 (H) <Bill Hearing Rescheduled to 3/26/13>
03/26/13 (H) STA AT 8:00 AM CAPITOL 106
03/26/13 (H) Heard & Held; Assigned to Subcommittee
03/26/13 (H) MINUTE(STA)
02/07/14 (H) STA AT 3:00 PM CAPITOL 120
02/07/14 (H) Work Session on above Bill
02/25/14 (H) STA AT 8:00 AM CAPITOL 106
02/25/14 (H) Heard & Held
02/25/14 (H) MINUTE(STA)
02/27/14 (H) STA AT 8:00 AM CAPITOL 106
02/27/14 (H) Heard & Held
02/27/14 (H) MINUTE(STA)
03/06/14 (H) STA AT 8:00 AM CAPITOL 106
WITNESS REGISTER
BETH LEIBOWITZ, Assistant Ombudsman
Office of the Ombudsman
Juneau, Alaska
POSITION STATEMENT: Explained the changes made in the proposed
committee substitute (CS) for HB 127, Version 28-LS0088\T,
Gardner, 3/5/14, and answered questions.
JIM POUND, Staff
Representative Wes Keller
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Reviewed the changes made in the committee
substitute (CS) to HB 127, Version 28-LS0088/T, Gardner, 3/5/14.
LINDA LORD-JENKINS, Ombudsman
Office of the Ombudsman
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during the hearing
on HB 127.
REE SAILORS, Deputy Commissioner
Department of Health & Social Services
Juneau, Alaska
POSITION STATEMENT: Testified during the hearing on HB 127.
STEPHEN J. Van GOOR, Bar Counsel
Discipline
Alaska Bar Association
Anchorage, Alaska
POSITION STATEMENT: Testified during the hearing on HB 127.
QUINLAN STEINER, Public Defender
Public Defender's Office
Anchorage, Alaska
POSITION STATEMENT: Testified during the hearing on HB 127.
ACTION NARRATIVE
8:10:03 AM
CHAIR BOB LYNN called the House State Affairs Standing Committee
meeting to order at 8:10 a.m. Representatives Keller, Gattis,
Hughes, Kreiss-Tomkins, and Lynn were present at the call to
order.
HB 127-OMBUDSMAN
8:11:12 AM
CHAIR LYNN announced the only order of business was HOUSE BILL
NO. 127, "An Act clarifying that the Alaska Bar Association is
an agency for purposes of investigations by the ombudsman;
relating to compensation of the ombudsman and to employment of
staff by the ombudsman under personal service contracts;
providing that certain records of communications between the
ombudsman and an agency are not public records; relating to
disclosure by an agency to the ombudsman of communications
subject to attorney-client and attorney work-product privileges;
relating to informal and formal reports of opinions and
recommendations issued by the ombudsman; relating to the
privilege of the ombudsman not to testify and creating a
privilege under which the ombudsman is not required to disclose
certain documents; relating to procedures for procurement by the
ombudsman; relating to the definition of 'agency' for purposes
of the Ombudsman Act and providing jurisdiction of the ombudsman
over persons providing certain services to the state by
contract; and amending Rules 501 and 503, Alaska Rules of
Evidence."
8:11:47 AM
REPRESENTATIVE KELLER moved to adopt the proposed committee
substitute (CS) for HB 127, Version 28-LS0088\T, Gardner,
3/5/14, as a work draft.
CHAIR LYNN objected for discussion purposes.
8:12:14 AM
BETH LEIBOWITZ, Assistant Ombudsman, Office of the Ombudsman,
explained the changes made in the proposed committee substitute
(CS) for HB 127, Version 28-LS0088\T, Gardner, 3/5/14 ("Version
T"). She said the first change was effected via an amendment
passed at the previous hearing, which was to remove reference to
residential child care facilities and residential psychiatric
treatment facilities. She said the Office of the Ombudsman has
asked for two changes. She directed attention to Section 6 of
Version T, which would amend AS 24.55.160(a)(4), which read as
follows:
(4) notwithstanding other provisions of law,
have access at all times to records of every [STATE]
agency, including confidential records, except sealed
court records, production of which may only be
compelled by subpoena, and except for records of
active criminal investigations and records that could
lead to the identity of confidential police
informants.
MS. LEIBOWITZ said the Office of the Ombudsman asked to have the
word "state" removed, because "if our jurisdiction expands to
cover any nonstate entities, our records access was not going to
expand with it." She said this change would bring the language
back in line with the rest of that statute.
MS. LEIBOWITZ said the Office of the Ombudsman also request a
change in Section 7, which read as follows:
*Sec.7.AS 24.55.160 is amended by adding a new
subsection to read:
(c) Disclosure by an agency to the ombudsman
under this chapter of a communication that is subject
to the attorney-client privilege, or attorney work-
product privilege, does not waive the privilege as to
any other person. The ombudsman may not disclose a
privileged communication provided under this
subsection.
MS. LEIBOWITZ said the Office of the Ombudsman would like the
following sentence added: "The Office of the Ombudsman may not
disclose a privileged communication provided under this
subsection." She said this seems self-evident, given that AS
24.55.160(b) already says that the Office of the Ombudsman will
not disclose a confidential record received from an agency;
however, the definition of record for the Office of the
Ombudsman's statute expressly excludes attorney-client
privileged material and attorney work product.
8:15:50 AM
REPRESENTATIVE HUGHES relayed that she had been reading through
statutes addressing investigative procedures, and she said, "It
seems like that was already covered, but maybe I'm missing
something." She read [AS 24.55.160(b)], as follows:
(b) The ombudsman shall maintain confidentiality
with respect to all matters and the identities of the
complainants or witnesses coming before the ombudsman
except insofar as disclosures may be necessary to
enable the ombudsman to carry out duties and to
support recommendations. However, the ombudsman may
not disclose a confidential record obtained from an
agency.
8:16:16 AM
MS. LEIBOWITZ reiterated that she thought that was well covered
until she looked closer and saw, in AS 24.55.330(3), that the
definition of "record" does not include attorney-client
privileged communications, and the Office of the Ombudsman wants
that material, if given to the office, to be just as protected
as any other confidential material that it receives.
8:17:26 AM
MS. LEIBOWITZ stated that the Office of the Ombudsman does not
support the changes proposed in Sections 3, 4, and 5, which she
offered her understanding were suggested by Representative
Keller. She said the new language proposed in Section 3 would
allow the chair of the Administrative Regulation Review
Committee to request an investigation of an administrative act
of an agency. She said this would create two classes of
complainant: the legislative requestor and all the other
complainants served by the Office of the Ombudsman. She opined
that "a legislative request is the 800-pound gorilla in a room
full of complainants." She said the Office of the Ombudsman was
created to serve individuals with no other recourse, and the
legislature has other recourse, including the ability to
subpoena, to hold hearings, and to request audits, which gives
it more power than individual complainants.
8:20:06 AM
JIM POUND, Staff, Representative Wes Keller, Alaska State
Legislature, explained that originally the legislature was able
to remove a regulation by resolution, but "the alive decision"
changed that so that the legislature now has to pass a bill in
order to remove a regulation. That requires the agreement of
both houses, as well as the okay of the governor. He said often
the Administrative Regulation Review gets "shut down," because
the attitude of agencies is, "We don't care; what are you going
to do about it?" He said when the Office of the Ombudsman
approaches the agencies "it's a different animal." He indicated
that the intent of [changes proposed in Sections 3-5] would give
the chair of the Administrative Regulation Review another
option.
MS. LEIBOWITZ offered her understanding that it would be the
chair of the Administrative Regulation Review who would be given
the ability to make the request, without even the requirement
for a committee vote. She said the main issue is that the
proposed language would result in a legislator's request for
investigation, and she said she does not think the issues that
would come from the chair of the Administrative Regulation
Review would be simple, straight-forward investigative issues.
8:23:06 AM
REPRESENTATIVE KREISS-TOMKINS asked how - if the purpose of
Section 3 is to get agencies to back down - the Office of the
Ombudsman would "have the power to have agencies abandon or
loosen regulations that the chair of the [Administrative]
Regulation Review Committee wants to be gone or wants to be
changed." He further asked the reason for proposing just the
chair of the Administrative Regulation Review.
MR. POUND responded that it would be "just another tool in the
tool box" to address the current "out-of-control" regulation
process. He said regulations are promulgated that quite often
do not mimic or interpret law, but rather "become law." He said
the Administrative Regulation Review Committee has no
investigative authority, other than holding a hearing, whereas
the Office of the Ombudsman has the ability to write a report
and file it with the agency, and that report becomes more of a
public record. He indicated that the documents created by the
Office of the Ombudsman are permissible in court, but documents
created by the legislature are not, "just because it's a public
hearing."
REPRESENTATIVE KREISS-TOMKINS said he understands the intent,
but is struggling to see how making the Office of the Ombudsman
the investigatory agency of the Administrative Regulation Review
Committee would solve the problem of regulatory oversight.
8:25:37 AM
MR. POUND, to Representative Kreiss-Tomkins' previously stated
second question, said just because a request would come from the
chair of the committee, does not mean it would be a unilateral
decision, and he indicated that the language could be changed to
reflect the entire committee's involvement.
8:25:59 AM
REPRESENTATIVE GATTIS surmised that there are other ways that
the Administrative Regulation Review Committee could spread the
word.
8:27:15 AM
REPRESENTATIVE KELLER said the legislature has made the Office
of the Ombudsman independent to keep politics out of it;
however, the office is the investigative arm of the legislature.
He stated his belief that where the legislature spends money
there is the potential for administrative acts that cause
problems for the citizens of Alaska, thus having a venue for
them to register a complaint is important. He said he thinks
the legislature is "not enough in tune with that ability and
responsibility." He said the proposed language would just
provide a link, which he opined would not be an intimidating
one. He emphasized that it is within the jurisdiction of the
legislature to do this, and he predicted it would increase
effectiveness and communication. He opined that "we" need more
feedback regarding the cases that the Office of the Ombudsman
declines to investigate. He mentioned the challenge of keeping
up with complaints with limited resources. He pointed out that
the Administrative Regulation Review Committee represents both
the House and the Senate.
8:30:25 AM
REPRESENTATIVE HUGHES, regarding the 800-pound gorilla in the
room, asked Ms. Leibowitz if there is anything currently that
would prevent a legislator - as an individual, not a member of
the legislature - from requesting an investigation regarding
regulations.
MS. LEIBOWITZ answered that a legislator could not become a
complainant for an issue that did not involve him/her
personally; however, he/she could certainly ask the Office of
the Ombudsman at any time to decide whether an issue warrants an
ombudsman-initiated investigation. She said there have been
cases like that. She noted that the ombudsman, Linda Lord-
Jenkins, was available via teleconference to offer further
information.
REPRESENTATIVE HUGHES asked, "So, if it doesn't personally
impact the legislature, you could still decide to take it on, is
that correct?"
MS. LEIBOWITZ answered yes.
8:32:24 AM
REPRESENTATIVE HUGHES asked if there is any obligation for the
agency involved in a complaint to provide a follow-up report
showing what steps have been taken related to the complaint.
MS. LEIBOWITZ confirmed that as part of the report process,
agencies are required to respond. If they do not respond, the
Office of the Ombudsman will issue a report anyway. She said
the agency is asked to respond to a confidential preliminary
report, and the final report incorporates the agency's response
through the findings and recommendations. In response to a
follow-up question, she confirmed the response of the agencies
become public.
REPRESENTATIVE HUGHES said Representative Gattis made a good
point that there is nothing currently that would prevent
"something to be made public" by the chair of the Administrative
Regulation Review Committee; however, she said she can see how,
under Version T, "there would be ... a little bit [of]
difference than just the way it is right now, because that
report and response would both be out there, and the public
would know if the problem will or will not be addressed." She
said she does not see the Office of the Ombudsman as having
enforcement authority, only investigatory capabilities. She
added, "But it does require, then, a response, so the idea is
that hopefully things will be fixed."
8:34:57 AM
The committee took a brief at-ease at 8:35 a.m.
8:35:52 AM
MS. LEIBOWITZ said Representative Hughes is correct that the
Office of the Ombudsman does not have enforcement authority.
She said she does not know what an ombudsman's report can do
that cannot be done by the Administrative Regulation Review
Committee as a legislative committee with the power to require
agency employees to come and testify and respond to the
committee on public record and with auditors, attorneys and
researchers at its disposal, especially when considering that
those who come to the Office of the Ombudsman with complaints
have none of those resources available to them.
8:37:21 AM
MR. POUND said the Administrative Regulation Review Committee
can subpoena administrative staff and bring them before the
committee, but that staff can [refuse to give forth
information].
8:37:51 AM
REPRESENTATIVE GATTIS asked what would keep a person from
[refusing to talk] to the Office of the Ombudsman.
MR. POUND answered that that is not allowed under statute. He
pointed out that the investigation done through the Office of
the Ombudsman is confidential until the full report is done,
whereas the committee process is public.
8:38:42 AM
REPRESENTATIVE KREISS-TOMKINS said it is difficult to understand
how someone's constitutional rights are suspended when the
Office of the Ombudsman opens up an investigation.
MR. POUND indicated that he did not know why either, but
reiterated that the statute was written giving authority to the
Office of the Ombudsman to investigate and bring witnesses
"behind closed doors" to get information.
REPRESENTATIVE KREISS-TOMKINS asked if the Administrative
Regulation Review Committee has encountered many people who have
called upon their constitutional right not to respond to a
question.
MR. POUND recollected that the Department of Education & Early
Development and the fire marshal have refused to respond. In
response to a follow-up question, he clarified that those
entities refused to come to the hearing.
8:40:33 AM
REPRESENTATIVE GATTIS asked why the Administrative Regulation
Review Committee did not subpoena those who refused to attend
the meeting.
MR. POUND said at the time the chair of the committee did not
think it was worth the trouble.
8:41:42 AM
LINDA LORD-JENKINS, Ombudsman, Office of the Ombudsman, stated
that the Office of the Ombudsman does not, by statute, submit
reports to the court. The office has immunity from testifying.
She said the ombudsmen in Alaska and in the rest of the U.S.,
under the United States Ombudsman Association (USOA) Model
Ombudsman Act for State Governments, believe that they "should
not be testifying in court"; therefore, the Office of the
Ombudsman has not submitted reports to a court venue. She said,
"Individual litigants in a court matter, if they'd gone to the
ombudsman, could present a report to the court, but we don't go
to court and testify to support (indisc.)."
MS. LORD-JENKINS confirmed that the Office of the Ombudsman does
have the power of subpoena; however, she said she does not
recall that power being discussed in the context of exercising
5th Amendment rights, because generally that is in a criminal
context, whereas the Office of the Ombudsman's reviews are
administrative. She said the ombudsman's authority is to make a
good case for a matter and recommend "fixes" it hopes agencies
will agree to adopt; however, the Office of the Ombudsman cannot
force the agencies to take action. If an agency declines to fix
a situation or does a good job fixing one, the Office of the
Ombudsman has the option to make that information public, which
she said often serves as a power of persuasion or tipping point
for agencies to, in good faith, try to fix a problem. She said
releasing a report to the media is up to the discretion of the
ombudsman. She said that in her ten years as ombudsman, her
office has released reports to the media on two occasions.
8:45:49 AM
MS. LEIBOWITZ said the Office of the Ombudsman objects to
Section 4 of Version T, because although it supports the
reporting of agency problems to the legislature, it is not clear
what legislative purpose would be served by giving out the name
of the individual complainant to the chair of a legislative
committee. She pointed out that individual complainants are
constituents, and while the Office of the Ombudsman can refer
them to legislators, explain committee structures, and give them
contact information, the decision to contact a legislator should
belong to the constituent. She said it is not the proper role
of the Office of the Ombudsman to be in the middle of that
relationship and making that communication for a constituent.
In response to the chair, she emphasized that even with the
complainant's consent, the office would strongly encourage the
complainant to initiate the communication with the legislature,
because it is not the proper role of the ombudsman to do so.
She reminded the House State Affairs Standing Committee that the
USOA standards talk about the ombudsman's obligation of
confidentiality, except as necessary to carry out the
investigation and support recommendations, and she reiterated
that it is unclear "how this serves any of the ombudsman's
actual functions or better informs the legislature about the
nature of problems with state government."
8:48:25 AM
MR. POUND said the reason the Administrative Regulation Review
Committee was chosen was so that the Office of the Ombudsman
would have to contact just one committee. He said the reason
for proposing a consenting complainant's name be disclosed is to
make it possible for the Administrative Regulation Review
Committee to know who to contact if they want to offer further
investigation.
8:49:24 AM
REPRESENTATIVE GATTIS asked Ms. Leibowitz what the problem would
be in a legislator being able to help a constituent follow up on
a problem when that constituent, as the complainant, has
consented to disclosure.
MS. LEIBOWITZ offered her understanding that what Representative
Gattis described already occurs. She said if a complainant
contacts the Office of the Ombudsman and lets it be known that
he/she has worked with a legislator on an issue, or if the
legislator refers the complainant to the Office of the
Ombudsman, it is routine and expected for the Office of the
Ombudsman to ask the complainant if he/she is okay with the
office sharing information about the case with the legislator.
She said the complainant generally says yes. In response to
Representative Gattis, she offered her understanding that the
proposed legislation proposes that when, for example, the Office
the Ombudsman sends a letter declining an inmate's complaint
because he/she has not used the grievance system within the
Department of Corrections, it would also ask the inmate's
permission to give his/her name to the chair of the
Administrative Regulation Review Committee. She expressed
bewilderment as to the purpose of that proposed language.
REPRESENTATIVE GATTIS offered her understanding that a
constituent who comes to a legislator with a complaint and does
not get the feedback he/she was looking for can call upon the
Office of the Ombudsman without the intervention of the
legislator.
MS. LEIBOWITZ responded, "I believe Representative Gattis is
correct."
8:53:04 AM
REPRESENTATIVE KELLER clarified that [Section 4] would pertain
to cases that the Office of the Ombudsman chooses not to
investigate.
8:53:46 AM
MS. LORD-JENKINS asked if that would pertain only to complaints
turned away by the Office of the Ombudsman that were referred to
the office by the chair of the Administrative Regulation Review
Committee or all complaints that come in the door. If the
latter, she said it would be a time-consuming process if the
Office of the Ombudsman were writing letters to each
complainant, redacting them as appropriate, and then sending a
redacted version to the chair of the committee.
MS. LORD-JENKINS confirmed that in the aforementioned
circumstances wherein the complainant has been referred to the
Office of the Ombudsman by a legislator or has notified the
legislator that he/she is dealing with the ombudsman or has
approached the legislator after being dissatisfied with the
ombudsman, with permission of the complainant, the Office of the
Ombudsman can talk to the legislator about the case. However,
the Office of the Ombudsman generally provides status
information, because "it doesn't do an investigation any good to
have a lot of cooks ... in the stew." She expressed concern
that the Office of the Ombudsman, if required to report back to
legislators, would be "micromanaged in the manner in which we
are conducting investigations." She cautioned against that.
Ms. Lord-Jenkins stated that the Office of the Ombudsman does
its best backing off and waiting until a legislative office is
done reviewing a complainant's concern, because there's no need
to spend its efforts if the legislative office is going forward
with a review. She explained that [getting involved before
then] creates confusion on the part of the complainant and the
agency, and "tends to muddy the waters."
8:56:32 AM
REPRESENTATIVE GATTIS asked Representative Keller to explain the
circumstance and road blocks that prompted his recommending the
language being discussed, and to clarify what he hoped to
address through it.
REPRESENTATIVE KELLER emphasized that he is not attempting to
fix the Administrative Regulation Review Committee with Version
T. He said he has appealed to the Office of the Ombudsman to
find ways to improve communication between it and the
legislative body. He expressed his hope that "this applies to
every complaint that the ombudsman doesn't address." He
mentioned one idea had been to connect zip codes with
complainants and their legislators, but the zip codes did not
line up with legislative districts. He stated that the
legislature has a vested interest in knowing how many cases are
not being investigated and why. In response to Representative
Gattis, he indicated that he was prompted to propose [the
language in Sections 3 through 5] by a desire for the Office of
the Ombudsman to have a better relationship with the legislature
so that legislators can be "faithful to this duty of responding
to complainants."
REPRESENTATIVE GATTIS asked Representative Keller to confirm
that he is saying he has experienced cases in which, after
receiving permission from the complainant to interact with the
Office of the Ombudsman, he has not heard back from the
ombudsman.
REPRESENTATIVE KELLER answered yes, but emphasized that the
Office of the Ombudsman was following statutes that the
legislature created; therefore, he is not criticizing the
ombudsman.
REPRESENTATIVE GATTIS said that is not what she heard from Ms.
Leibowitz, who, she recollected, had indicated that given the
release of confidentiality the Office of the Ombudsman could
work with the legislator and constituent, if the constituent had
given his/her permission. She concluded, "I thought I'm hearing
that in statute they already have that opportunity, [so it is]
unnecessary to put another one in."
9:03:24 AM
REPRESENTATIVE HUGHES said currently the constituent has to
initiate the involvement of a legislator's office, but under
Version T, the legislator could "initiate it." She asked Ms.
Leibowitz to clarify how the Office of the Ombudsman currently
handles a situation in which it has declined a case and the
complainant goes to the legislator and the legislator contacts
the Office of the Ombudsman.
MS. LEIBOWITZ answered that the Office of the Ombudsman would
contact the complainant as quickly as possible to find out if
he/she wanted to give the office permission to discuss the
complaint with the legislator's office. If the answer is yes,
then the Office of the Ombudsman would discuss the case with the
legislator to the extent it is able given its restrictions
regarding the release of confidential information. She
explained that the Office of the Ombudsman often has access to
information that allows it to evaluate the complaint, but it may
not be able to give that information to the legislator or the
complainant.
REPRESENTATIVE HUGHES concluded that currently "we" have a way
for the communication to occur if the individual initiates it,
but there is "no way for the communication to occur with the
legislator initiating it," because the legislator would not have
the name of the person. Regarding the suggested need for the
legislature to know the number of and reason for cases declined,
she asked if the Office of the Ombudsman has been reporting that
information to the legislature.
MS. LEIBOWITZ answered that the Office of the Ombudsman issues
an annual report, and she deferred to Ms. Lord-Jenkins for
further discussion. She added that the Office of the Ombudsman
has the ability to provide public summaries of closed complaints
and could do so by request for any legislative office. She said
those summaries, while not identifying the complainant, provide
the basic allegation of the complaint, the agency or agencies
involved, and a summary of the reason the complaint was closed.
9:07:45 AM
REPRESENTATIVE KREISS-TOMKINS stated that he has difficulty
accepting Sections 4 and 5, because he is not certain there is a
problem that needs to be fixed. He said the Administrative
Regulation Review Committee already has the power of subpoena at
its disposal, and it is the prerogative of that committee to
decline to use that tool. He said while he appreciates the
intent behind Sections 3, 4, and 5, he thinks it comes down to a
fundamental question of whether the ombudsman works for the
people or the legislature. He stated his understanding that the
ombudsman works for the people and has no obligation to report
to legislators or the legislature. He said he thinks the
legislature already has its own investigatory agency through
Legislative Audit. He opined that there is nothing to fix in
terms of confidentiality or independence as it relates to the
Office of the Ombudsman. He suggested that perhaps [Sections 2-
5] would receive a more thorough consideration in the House
Judiciary Standing Committee.
CHAIR LYNN said the Office of the Ombudsman is a creation of the
legislature.
REPRESENTATIVE KREISS-TOMKINS responded that it is up to the
legislative branch to preserve the independence of the
ombudsman.
9:10:34 AM
MR. POUND said the reason for choosing the Administrative
Regulation Review is that it meets year-round and is made up of
both legislative bodies. He remarked upon the singular nature
of the Legislative Budget & Audit [Committee's] authority. He
said under existing requirements, the ombudsman can submit an
oral report to the legislature, unless a written report has
specifically been requested.
9:12:01 AM
MS. LEIBOWITZ offered her understanding that under the proposed
Section 5 of Version T, the ombudsman would declare in writing
the reasons for declining complaints. She said she is not sure
of the intent of Section 5, because under current law, the
Office of the Ombudsman can routinely provide a basic summary of
why it has declined a complaint. She said it cannot, in many
cases, simply provide a copy of the letter provided to the
complainant, because of confidentiality reasons. She gave an
example, wherein the complaint related to child support.
9:13:29 AM
MR. POUND said Section 5 relates to complaints that are being
denied, not ones that have been investigated.
9:13:53 AM
REPRESENTATIVE GATTIS asked if there have been circumstances
where people were not happy that the Office of the Ombudsman
refused to consider complaints, such that Section 5 is necessary
to prevent the ombudsman from arbitrarily turning somebody down.
She said she has not heard any specific examples, and she is a
proponent of not fixing something that is not broken.
9:14:40 AM
MR. POUND responded, "Part of the reason is because we're not
receiving the information on what's being denied." He added
that it is not possible to cite something that does not exist.
REPRESENTATIVE GATTIS reiterated that she has not heard any
compelling reasons today that there is a problem. She said she
would expect to have heard repeatedly from constituents, but has
not.
MR. POUND, in response to the chair, confirmed that the proposed
language is more a preventive measure.
9:16:22 AM
REPRESENTATIVE HUGHES remarked that she has not received such a
call from a constituent either, but asked Representative Keller
if he has.
REPRESENTATIVE KELLER answered that he has never received any
information about any investigation that has been declined, but
explained it is that which concerns him, because "we want to get
a scope on ... what is being missed out there." He said he
would like Ms. Lord-Jenkins to talk about how the office reports
cases that it does not investigate. He said a "report" is a
judgment call, and there is criterion in statute for cases that
are not investigated.
9:18:00 AM
MS. LORD-JENKINS said a legislator may get a call from someone
complaining that the Office of the Ombudsman would not
investigate his/her complaint. She said that often translates
in a number of ways: the Office of the Ombudsman may decline to
investigate the complaint, because the complainant had not used
the existing grievance appeal process; the Office of the
Ombudsman may decide that the situation for which there is a
complaint happened too long ago under the regulatory time frame;
or the complainant might not have sufficient personal interest.
She said she has seen repeatedly where [the Office of the
Ombudsman] might send a five-page letter explaining why it
declined a case, and the complainant only hears "no." She said
the Office of the Ombudsman documents its declined cases, and it
would be happy to provide the public versions of the closing
summaries, which have the associated case number attached. She
expressed her concern that the Office of the Ombudsman might be
required to document in a letter each one of "these," which she
said would be onerous.
MS. LORD-JENKINS, regarding previous discussion of Section 4, on
the topic of a legislator that may contact the ombudsman after
being contacted by a constituent, stated that under statute and
confidentiality requirements, the Office of the Ombudsman cannot
speak to the legislator about the complainant, without express
permission from the complainant waiving confidentiality as to
that or any legislator. She said she has had several instances
where individuals have received an answer from the Office of the
Ombudsman and gone to their legislators, and the ombudsman has
asked the complainant for permission to speak to the
legislator(s), and the complainant has declined. Ms. Lord-
Jenkins reemphasized that under such circumstances, the Office
of the Ombudsman would not be allowed to discuss the case with
the legislator(s).
9:21:57 AM
REE SAILORS, Deputy Commissioner, Department of Health & Social
Services, relayed that by reading the latest annual report [from
the Office of the Ombudsman], she found out that there had been
290 complaints against the department. She indicated that 194
of the complaints were against the Office of Children's Services
(OCS), and of those 194, 100 were released either via a court
decision or as being inappropriate for the Office of the
Ombudsman; 15 were either resolved or deemed inappropriate; and
75 cases were considered by the Office of the Ombudsman. Ms.
Sailors said the department has had an ongoing working
relationship with the Office of the Ombudsman. She said the
fact that the department serves 200,000 Alaskans gives it ample
opportunity to be exposed to complaints, and the department is
run by human beings, thus it is capable of making mistakes.
MS. SAILORS questioned proposed changes related to grantees and
contractors. She referred to language, addressed by the
committee at its [2/27/14] hearing, [found in Section 6 of HB
127, Version 28-LS0088\G, Gardner, 2/13/14, on page 3, lines 6-
27, which read as follows]:
* Sec. 6. AS 24.55.330(2) is amended to read:
(2) "agency" includes a department, office,
institution, corporation, authority, organization,
commission, committee, instrumentality, council, or
board of a municipality or in the executive,
legislative, or judicial branches of the state
government, and a department, office, institution,
corporation, authority, organization, commission,
committee, instrumentality, council, or board of a
municipality or of the state government independent of
the executive, legislative, and judicial branches, or
a person under a contract with a state agency or a
person who has been awarded a grant from a state
agency to provide a prison, halfway house, or similar
residential service on behalf of the Department of
Corrections, to provide a juvenile correctional or
detention facility, home, or work camp as authorized
by AS 47.14.010 - 47.14.050, to provide a residential
child care facility or a residential psychiatric
treatment center as defined in AS 47.32.900 to the
extent that the facility or treatment center accepts
placement of juveniles committed to the custody of the
Department of Health and Social Services, or to
determine eligibility for a state program or benefit;
it also includes an officer, employee, or member of an
"agency" acting or purporting to act in the exercise
of official duties, but does not include the governor,
the lieutenant governor, a member of the legislature,
the victims' advocate, the staff of the office of
victims' rights, a justice of the supreme court, a
judge of the court of appeals, a superior court judge,
a district court judge, a magistrate, a member of a
city council or borough assembly, an elected city or
borough mayor, or a member of an elected school board;
MS. SAILORS remarked that at the last hearing, the committee had
adopted [Amendment 1, which removed the following language from
lines 17-20, on page 3, of Section 6]:
, to provide a residential child care facility or a
residential psychiatric treatment center as defined in
AS 47.32.900 to the extent that the facility or
treatment center accepts placement of juveniles
committed to the custody of the Department of Health
and Social Services
MS. SAILORS indicated that it is the opinion of the department
that the adopted Amendment 1 did not go far enough, because it
left in the Division of Juvenile Justice. She explained that
the department does not believe the division belongs in the
language because it does not have contracts or grants with
anyone regarding justice facilities; therefore, "we're kind of
talking about something that doesn't exist." She commented that
the statutory language is old. For example, she said she has
talked to employees who have worked for the department for over
17 years, and they have never seen or heard of a "work camp".
She stated the department's wish that the references to
"juvenile detention facilities, homes, et cetera, that remain in
the bill" be removed.
9:24:50 AM
MS. SAILORS said another issue for the department has to do with
grantees or contractors who would determine eligibility for
services. She offered her understanding that this would apply
to all state agencies. She said the department's position is
that it is responsible for "these actions and our grantees and
their actions." She said the department fears unintended
consequences of the proposed legislation. She indicated that
defining grantees and contractors as agencies creates a
situation where, under the requirements of the proposed
legislation, they are not to release information. She said the
department questions whether the Office of the Ombudsman would
be able to "release information about one of those agencies to
us so that we can have our ability to investigate and sanction
and take regulatory actions." She said the inability of
grantees and contractors to share information with the
department, which has the enforcement powers, leaves the
department in "a void." She said the department, in some
instances, licenses its grantees, thus, it has strings attached
via the funding, which the grantee receives from the department.
MS. SAILORS said the department also has the capability to
"bring in disciplinary teams" and "to work quickly." She
indicated that the department has observed a lag in time from
the point at which the Office of the Ombudsman starts an
investigation to the time the report of that investigation is
completed. Ms. Sailors characterized the possible result of the
separation of grantees from the department as a "potential for
triangulation," which she said she thinks would bifurcate "the
accountability and the responsibility that we feel we have to
the resources" appropriated and requirements given to the
department by the legislature to provide services in the state,
"whether it's through contract, grantees, or ourselves." She
said she thinks the aforementioned language may potentially
interfere with the department's ability "to take advantage of a
situation where the ombudsman would go in." She said if the
language is kept as is, the department strongly requests that it
be notified when the Office of the Ombudsman either receives a
complaint or initiates an investigation, so that the department
"can move quickly into a situation." She said the department
not only has worked in cooperation with the Office of the
Ombudsman, it has also worked on out-of-state situations with
the help of authorities in other states. She said, "So, we have
... certain enforcement powers that we don't want to have
delayed or interfered by virtue of this confidentiality
situation."
9:28:46 AM
MS. SAILORS, returning to the issue of juvenile justice, said
the philosophy in Alaska for some time now has been one of
services, treatment, and building a sense of responsibility and
accountability for youth in the juvenile justice system. She
said the department deals with medical records for medical and
psychiatric treatment and holds those records within its
facilities. She recollected that Representative Hughes had
asked about the security of personal health information. She
said the department is concerned that there be some provision
that is consistent with the Health Insurance Portability and
Accountability Act (HIPAA). She said HIPAA does allow people to
have access to personal health information if it is required in
statute; however, the department is concerned with
interpretation of existing language as it relates to the ability
to access records of personal health information without notice
to or consent of the individual. She recounted that the State
of Alaska has been fined by the federal Department of Justice's
Office of Civil Rights, in excess of a million dollars, for a
questionable breach regarding personal health information. She
said there is a nationwide movement to take strong regulatory
action against states, as well as private entities, for
violating HIPAA. She said she would hate to have the Office of
the Ombudsman, as an entity of the state, "trigger another
fine." She indicated that as a result of the aforementioned
breach, the State of Alaska has had to contract with monitors
that watch what the state does. Ms. Sailors opined that in
order to protect the right of privacy, there should be "a
requirement to get a very exclusive consent to access personal
health records."
9:32:07 AM
MS. SAILORS said she thinks the attorney-client privilege issue
is of concern to the department, which feels it has the right to
get its own counsel. She recollected an example had been given
that in the past "we" asked "an agency" why it had chosen a
particular course of action, and the agency said it was advised
by its attorneys, but it would not divulge further information.
She stated that having been an "investigator of things" in her
past, it is her opinion that an investigation does not need "to
turn on a confidential advice memo from an attorney to a
client." She concluded, "The evidence is there, the facts are
there, the law is there, and the availability of interpretation,
without the benefit of somebody else's counsel, is certainly
available to be made."
9:33:02 AM
MS. LEIBOWITZ said the section addressing attorney-client
privileged information is phrased such that it is not a mandate
to the Office of the Ombudsman to obtain the information, but
rather it is an option for the agency. She said the Office of
the Ombudsman cannot and does not want to "compel the offering
up of that kind of information." She stated, "That section is
intended to function so that an agency can give us that
information without it coming back to cause them damage in
unrelated litigation or in another context." She said if an
agency refuses to tell the Office of the Ombudsman what the
attorney general said, then "that's how it is" and the Office of
the Ombudsman would then "pull what facts it can" and move on
with the investigation as Ms. Sailors noted. She concluded,
"Sometimes the agency actually prefers to be frank with us about
what it is they got by way of advice, but that is [an] option,
not a requirement."
9:34:38 AM
MR. POUND recommended that if the committee was going to adopt
Version T as a work draft, it should delete "to any other
complainant," from page 2, lines 24-25, because he said it could
be interpreted as any person being allowed access to the Office
of the Ombudsman's reason for not investigating a complaint.
9:35:51 AM
CHAIR LYNN removed his objection to the motion to adopt the
proposed committee substitute (CS) for HB 127, Version 28-
LS0088\T, Gardner, 3/5/14, as a work draft. [There being no
further objection, Version T was before the committee.]
9:35:57 AM
REPRESENTATIVE KELLER moved to adopt Conceptual Amendment 1 to
HB 127, Version T, as follows:
On page 2, line 24:
Following "Committee,"
Delete "or to any other complainant,"
There being no objection, Conceptual Amendment 1 was adopted.
9:37:20 AM
CHAIR LYNN said he would like to hear from someone with legal
expertise, but indicated he may leave debate of some issue to
the House Judiciary Standing Committee.
9:37:50 AM
REPRESENTATIVE HUGHES requested that the House Judiciary
Standing Committee consider her concern that medical records
obtained are destroyed sometimes only on an annual basis. In
response to Representative Keller, she said she had not spoken
with Ms. Leibowitz about this issue, but she stated her belief
that medical files should be destroyed immediately after they
are no longer needed.
REPRESENTATIVE KELLER, [as chair of the House Judiciary Standing
Committee], committed to addressing that issue.
9:40:04 AM
STEPHEN J. Van GOOR, Bar Counsel, Discipline, Alaska Bar
Association (ABA), stated that the disciplinary process in
Alaska is working; it is strictly supervised by the Alaska
Supreme Court and the ABA's disciplinary board. He said
multiple levels of review are already in the disciplinary
enforcement rules concerning investigation and prosecution. A
complainant - anyone dissatisfied with the decision of the ABA
not to open an investigation - can have the decision reviewed by
a disciplinary board member called the board liaison. The
complainant, if still dissatisfied, can file an application for
direct review by the Alaska Supreme Court. Mr. Van Goor said
that has happened. Similarly, a decision to dismiss a grievance
after investigation can be reviewed by a member of a hearing
panel, after which, if the complainant is still not satisfied,
he/she can petition the Alaska Supreme Court for a review of
that decision.
MR. Van GOOR said when the rules of disciplinary enforcement
were revised in the 1980s, public members were added to the
board of governors by the legislature and became involved in the
critical stage of the disciplinary process as members of hearing
panels, which hear evidence and make findings, conclusions, and
recommendations. He emphasized that those recommendations go to
the disciplinary board, which comprises 12 members, three of
whom are public members subject to confirmation by the
legislature. He said every legislative audit conducted of the
ABA since the '80s has recommended the continuation of the
[disciplinary] board and its responsibility for the
investigation and prosecution of attorney misconduct. He stated
that the system is not broken, but would be if the proposed
amendments in Version T are adopted. He said lawyers often have
to explain what was done on a client's behalf, and that involves
confidential information. He said clients would not be sure
that confidential information would be protected, since it would
be subject to review outside of the disciplinary process.
9:42:38 AM
MR. Van GOOR said the two obligations an attorney has to a
client are loyalty and confidentiality, but a lawyer would have
no recourse if a non-lawyer spread confidential information
outside of the disciplinary process. He stated that even though
the staff in the Office of the Ombudsman includes three lawyers,
none of those lawyers are in an attorney-client privileged
relationship with the person making the complaint. Further,
none of those lawyers are specifically authorized access to the
information under the Alaska Supreme Court's procedural rules.
He said the ABA could not comply with a request for an
investigation, because of requirements imposed on the process by
rules adopted by the court. He said Doug Gardner, the director
of Legislative Legal and Research Services, confirmed the
court's inherent authority in this area in a memorandum dated
March 21, 2013. Mr. Van Goor predicted that the Office of the
Ombudsman would be frustrated, as would the ABA, which would be
"stuck in the middle of this situation." He concluded by
requesting on behalf of the ABA that the House State Affairs
Standing Committee amend Version T either by stating that the
ABA is not an agency for the purposes of the Office of the
Ombudsman's jurisdiction or by listing the ABA as exempt in the
list of exempted officials. He said, "That would answer the
ombudsman's question regarding jurisdiction that she posed last
year and would avoid the problems I just identified."
9:44:30 AM
REPRESENTATIVE GATTIS stated for the record that she had an
amendment that she would hold for the House Judiciary Standing
Committee.
9:44:57 AM
QUINLAN STEINER, Public Defender, Public Defender's Office,
stated that the consequence of giving the Office of the
Ombudsman the authority to investigate the ABA would be to
undermine the review of agency attorneys' conduct with respect
to a client's complaint. He said currently a client can
complain to the public defender about a problem with his/her
attorney's conduct, and the public defender can evaluate the
complaint with access to all the attorney-client confidences
that are necessary to review the complaint. Alternatively, the
client can complain to the ABA. When a client complains to the
ABA, that entity asks for a response from agency attorneys.
Presently attorneys fully comply by including all attorney-
client confidences, because it is permissible under a rule to do
so. However, if that information could be released to an entity
outside of the ABA, the attorneys would no longer be able to
fully respond, which would have the effect of undermining the
review of the client's complaint by narrowing his/her option for
issuing a complaint to only the public defender. Mr. Steiner
said having a full candid review benefits the criminal justice
system as a whole, and certainly benefits the client. He
opined, "I think that's worth considering when evaluating how
this is executed."
9:47:04 AM
CHAIR LYNN closed public testimony on HB 127.
9:47:21 AM
REPRESENTATIVE HUGHES expressed hope that the House Judiciary
Standing Committee would consider a letter, dated 2/24/14, from
Mr. Van Goor, regarding enforcement action initiated by the
Office of the Ombudsman, because she offered her understanding
that the committee had learned that the Office of the Ombudsman
does not have enforcement action. She mentioned having looked
at the Alaska Rule of Professional Conduct, and said she had
noted "some rules that perhaps would apply." She said it
addressed situations in which there may be allegations regarding
attorney and where disclosure could be allowed if required by
law. She indicated that she would like committee discussion
regarding those issues found in the Alaska Rule of Professional
Conduct.
9:49:10 AM
REPRESENTATIVE KELLER said he would commit to a thorough
discussion of all issues that come up during the House Judiciary
Standing Committee's upcoming review of HB 127. He emphasized
that his interest in the proposed legislation is on behalf of
the legislature.
9:50:19 AM
REPRESENTATIVE KREISS-TOMKINS stated his preference that the
House Judiciary Standing Committee review HB 127 without
Sections 3-5.
CHAIR LYNN reminded Representative Kreiss-Tomkins he would have
the chance to indicate his view of HB 127, Version T, when
signing the bill report.
REPRESENTATIVE KREISS-TOMKINS said he would rather see the
change made before a motion to move the proposed bill out of
committee.
9:51:35 AM
REPRESENTATIVE KREISS-TOMKINS moved to adopt Conceptual
Amendment 2, to remove the language that was added in Sections
3-5.
REPRESENTATIVE KELLER objected.
9:51:51 AM
REPRESENTATIVE GATTIS asked for clarification that
Representative Kreiss-Tomkins wished to delete Sections 3-5
entirely.
REPRESENTATIVE KREISS-TOMKINS responded, "That's it."
REPRESENTATIVE GATTIS reiterated that she did not think the
language in Sections 3-5 was necessary; therefore, she stated
her support of Conceptual Amendment 2.
REPRESENTATIVE KELLER said he thinks [the language in Sections
3-5] "is a real elegant fix to a couple problems."
9:52:48 AM
REPRESENTATIVE HUGHES indicated that she does not support
[Sections 3-5] as currently written, and said she has not come
to the point where she is ready to make a policy call. She
asked Representative Keller if this issue would be taken up in
the House Judiciary Standing Committee if Conceptual Amendment 2
was adopt in this committee, because she ventured that there may
be some value in continuing the discussion on what the three
sections are addressing.
REPRESENTATIVE KELLER answered yes. He said he thinks it is
"too broad of a brush" to take all that language out, while
leaving it in would ensure a robust discussion. He added that
he does not anticipate that the proposed legislation would move
out of the House Judiciary Standing Committee as written.
REPRESENTATIVE HUGHES clarified that she wanted to know if the
discussion would be brought back to the table in the next
committee of referral if the House State Affairs Standing
Committee adopted Conceptual Amendment 2.
REPRESENTATIVE KELLER said the discussion would happen either
way, but he stated his preference that the language remain in
the bill.
REPRESENTATIVE HUGHES said she would vote against Conceptual
Amendment 2, not because she supports the language in Sections
3-5 entirely, but rather in the interest of continuing the
discussion in the next committee of referral. For example, she
said she does not believe that the chair of the Administrative
Regulation Review should have sole discretion.
9:55:05 AM
REPRESENTATIVE GATTIS said she thinks that the House State
Affairs Standing Committee has held a robust discussion of
[Sections 3-5] and it is time to take that language out and
start over again.
9:56:07 AM
REPRESENTATIVE KREISS-TOMKINS said if the committee is all in
agreement that the bill language should be cleaned up, it would
be logical to start with "less" and have the burden to prove
every change to the bill, rather than having that language in
the bill and then "work to subtract." He said it does not make
sense to pass a bill out of committee with troublesome language
still in it. He said he feels that adopting Conceptual
Amendment 2 would be a more conservative, cautious, and
deliberate approach to produce the best possible [legislation]
to pass on to the next committee of referral.
REPRESENTATIVE KELLER maintained his objection.
9:57:12 AM
A roll call vote was taken. Representatives Kreiss-Tomkins and
Gattis voted in favor of Conceptual Amendment 2.
Representatives Hughes, Keller and Lynn voted against it.
Therefore, Conceptual Amendment 2 failed by a vote of 2-3.
9:57:58 AM
REPRESENTATIVE KELLER moved to report CSHB 127, Version 28-
LS0088\T, Gardner, 3/5/14, as amended, out of committee with
individual recommendations and the accompanying fiscal notes.
There being no objection CSHB 127(STA) moved out of the House
State Affairs Standing Committee.
9:58:43 AM
ADJOURNMENT
There being no further business before the committee, the House
State Affairs Standing Committee meeting was adjourned at 9:59
a.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| 28 Legal Memo HB 127 Omb v LBA juris.pdf |
HSTA 3/6/2014 8:00:00 AM |
HB 127 |
| 29 HB127 Version T 28-LS0088-T.pdf |
HSTA 3/6/2014 8:00:00 AM |
HB 127 |
| 30 Legal Memo HB127 14-112 lem 3-5-2014.pdf |
HSTA 3/6/2014 8:00:00 AM |
HB 127 |
| 27 Letter ASHNHA Alaska State Hospital Nursing Home Assn OPPOSE.pdf |
HSTA 3/6/2014 8:00:00 AM |
HB 127 |
| REVISED AK BAR ASSN February 25, 2014 Letter & Attachment.pdf |
HSTA 3/6/2014 8:00:00 AM |
HB 127 |