Legislature(2013 - 2014)BELTZ 105 (TSBldg)

03/25/2013 01:30 PM Senate JUDICIARY


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01:34:05 PM Start
01:34:59 PM Confirmation Hearing: Select Committee on Legislative Ethics
01:39:14 PM SB72
02:22:19 PM SJR9
03:02:12 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Confirmation Hearings: TELECONFERENCED
H. Connor Thomas, Legislative Ethics
+= SB 72 OMBUDSMAN TELECONFERENCED
Heard & Held
+= HB 69 EXEMPT FIREARMS FROM FEDERAL REGULATION TELECONFERENCED
Scheduled But Not Heard
+= SJR 9 CONST. AM: EDUCATION FUNDING TELECONFERENCED
Heard & Held
Bills Previously Heard/Scheduled
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                         March 25, 2013                                                                                         
                           1:34 p.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator John Coghill, Chair                                                                                                     
Senator Lesil McGuire, Vice Chair                                                                                               
Senator Fred Dyson                                                                                                              
Senator Donald Olson                                                                                                            
Senator Bill Wielechowski                                                                                                       
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
All members present                                                                                                             
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
CONFIRMATION HEARING                                                                                                            
                                                                                                                                
     Select Committee on Legislative Ethics                                                                                 
          H. Connor Thomas                                                                                                      
                                                                                                                                
     - CONFIRMATION ADVANCED                                                                                                    
                                                                                                                                
SENATE BILL NO. 72                                                                                                              
"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."                                                                          
                                                                                                                                
     - HEARD AND HELD                                                                                                           
                                                                                                                                
SENATE JOINT RESOLUTION NO. 9                                                                                                   
Proposing amendments to  the Constitution of the  State of Alaska                                                               
relating to state aid for education.                                                                                            
                                                                                                                                
     - HEARD AND HELD                                                                                                           
                                                                                                                                
CS FOR HOUSE BILL NO. 69(JUD)                                                                                                   
"An  Act exempting  certain  firearms,  firearm accessories,  and                                                               
ammunition  in  this  state from  federal  regulation;  declaring                                                               
certain   federal  statutes,   regulations,  rules,   and  orders                                                               
unconstitutional under the Constitution of  the United States and                                                               
unenforceable  in this  state; providing  criminal penalties  for                                                               
federal officials  who enforce  or attempt  to enforce  a federal                                                               
statute, regulation,  rule, or order regulating  certain firearms                                                               
and  firearm accessories  in  this state;  and  providing for  an                                                               
effective date."                                                                                                                
                                                                                                                                
     - SCHEDULED BUT NOT HEARD                                                                                                  
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: SB 72                                                                                                                   
SHORT TITLE: OMBUDSMAN                                                                                                          
SPONSOR(s): SENATOR(s) COGHILL BY REQUEST                                                                                       
                                                                                                                                
03/11/13       (S)       READ THE FIRST TIME - REFERRALS                                                                        
03/11/13       (S)       JUD, FIN                                                                                               
03/22/13       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
03/22/13       (S)       Scheduled But Not Heard                                                                                
03/25/13       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
                                                                                                                                
BILL: SJR 9                                                                                                                   
SHORT TITLE: CONST. AM: EDUCATION FUNDING                                                                                       
SPONSOR(s): SENATOR(s) DUNLEAVY                                                                                                 
                                                                                                                                
02/13/13       (S)       READ THE FIRST TIME - REFERRALS                                                                        
02/13/13       (S)       EDC, JUD                                                                                               
02/15/13       (S)       EDC REFERRAL REMOVED                                                                                   
02/15/13       (S)       FIN REFERRAL ADDED AFTER JUD                                                                           
02/15/13       (S)       UPHOLD CHANGE TO REFERRALS Y11 N4 E4 A1                                                                
03/13/13       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
03/13/13       (S)       Scheduled But Not Heard                                                                                
03/15/13       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
03/15/13       (S)       Heard & Held                                                                                           
03/15/13       (S)       MINUTE(JUD)                                                                                            
03/18/13       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
03/18/13       (S)       Heard & Held                                                                                           
03/18/13       (S)       MINUTE(JUD)                                                                                            
03/20/13       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
03/20/13       (S)       -- MEETING CANCELED --                                                                                 
03/22/13       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
03/22/13       (S)       Heard & Held                                                                                           
03/22/13       (S)       MINUTE(JUD)                                                                                            
03/25/13       (S)       JUD AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
H.CONNOR THOMAS, Appointee                                                                                                      
Select Committee on Legislative Ethics                                                                                          
Nome, Alaska                                                                                                                    
POSITION STATEMENT: Presented information related to his                                                                      
confirmation hearing.                                                                                                           
                                                                                                                                
BETH LEIBOWITZ, Assistant Ombudsman                                                                                             
Office of the Ombudsman                                                                                                         
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Provided information related to SB 72.                                                                    
                                                                                                                                
STEVE VAN GOOR, Bar Counsel                                                                                                     
Alaska Bar Association (ABA)                                                                                                    
Anchorage, Alaska                                                                                                               
POSITION STATEMENT: Answered questions related to SB 72.                                                                      
                                                                                                                                
LINDA LORD-JENKINS, Ombudsman                                                                                                   
Alaska State Ombudsman                                                                                                          
Anchorage, Alaska                                                                                                               
POSITION STATEMENT: Commented on SB 72.                                                                                       
                                                                                                                                
MAUREEN VAN WAGNER, Special Education Teacher                                                                                   
East High School                                                                                                                
Anchorage, Alaska                                                                                                               
POSITION STATEMENT: Testified in opposition to SJR 9.                                                                         
                                                                                                                                
TIM PARKER, Teacher                                                                                                             
Lathrop High School                                                                                                             
Fairbanks, Alaska                                                                                                               
POSITION STATEMENT: Testified in opposition to SJR 9.                                                                         
                                                                                                                                
TODD HEINMAN, Principal                                                                                                         
Anvil City Science Academy (ACSA)                                                                                               
Nome, Alaska                                                                                                                    
POSITION STATEMENT: Testified in opposition to SJR 9.                                                                         
                                                                                                                                
MIKE HANLEY, Commissioner                                                                                                       
Department of Education and Early Development (DEED)                                                                            
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Answered questions related to SJR 9.                                                                      
                                                                                                                                
SENATOR MIKE DUNLEAVY                                                                                                           
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT: Sponsor of SJR 9.                                                                                         
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
1:34:05 PM                                                                                                                    
CHAIR  JOHN   COGHILL  called   the  Senate   Judiciary  Standing                                                             
Committee meeting  to order at 1:34  p.m. Present at the  call to                                                               
order were  Senators McGuire, Dyson, and  Chair Coghill. Senators                                                               
Olson  and Wielechowski  arrived  soon  thereafter. He  explained                                                               
that public testimony on HB 69 would be held at another time.                                                                   
                                                                                                                                
^Confirmation Hearing: Select Committee on Legislative Ethics                                                                   
                      CONFIRMATION HEARING                                                                                  
             Select Committee on Legislative Ethics                                                                           
                                                                                                                              
1:34:59 PM                                                                                                                  
CHAIR COGHILL  announced that the  first order of  business would                                                               
be a  confirmation hearing  for H. Connor  Thomas for  the Select                                                               
Committee on Legislative Ethics.                                                                                                
                                                                                                                                
He noted the arrival of Senator Olson.                                                                                          
                                                                                                                                
1:35:56 PM                                                                                                                    
CHAIR  COGHILL requested  that Mr.  Thomas explain  why he  would                                                               
like to continue to serve  on the Select Committee on Legislative                                                               
Ethics.                                                                                                                         
                                                                                                                                
H.  CONNOR THOMAS,  Appointee,  Select  Committee on  Legislative                                                               
Ethics,  presented   information  related  to   his  confirmation                                                               
hearing.  He  related  that  he   has  enjoyed  serving  on  this                                                               
committee since 1998. It was an opportunity to serve the public.                                                                
                                                                                                                                
CHAIR  COGHILL noted  that he  served with  Mr. Thomas  and would                                                               
recommend him to the full body for confirmation.                                                                                
                                                                                                                                
1:38:09 PM                                                                                                                    
SENATOR MCGUIRE  thanked Mr. Thomas  for his years of  service on                                                               
the Select Committee on Legislative Ethics.                                                                                     
                                                                                                                                
SENATOR MCGUIRE  moved to  forward the name  H. Connor  Thomas to                                                               
the full  legislative body,  with individual  recommendations, to                                                               
serve on the Select Committee on Legislative Ethics.                                                                            
                                                                                                                                
CHAIR  COGHILL   found  no  objection  and   announced  that  the                                                               
committee would  forward Mr. Thomas's  name to the full  body for                                                               
confirmation. He thanked Mr. Thomas for his work.                                                                               
                                                                                                                                
He noted the arrival of Senator Wielechowski.                                                                                   
                                                                                                                                
                        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.]                                                                                        
                                                                                                                                
               SJR 9-CONST. AM: EDUCATION FUNDING                                                                           
                                                                                                                                
2:22:19 PM                                                                                                                    
CHAIR COGHILL announced that the  next order of business would be                                                               
SJR 9. He noted the committee  heard the bill previously. He said                                                               
he invited  Commissioner Hanley from the  Department of Education                                                               
and Early Development (DEED) back to answer questions.                                                                          
                                                                                                                                
SENATOR   WIELECHOWSKI  stated   that   he   has  questions   for                                                               
Commissioner Hanley.                                                                                                            
                                                                                                                                
[CHAIR COGHILL opened public testimony.]                                                                                        
                                                                                                                                
MAUREEN VAN WAGNER, Special Education  Teacher, East High School,                                                               
testified in opposition  to SJR 9. She gave reasons  why the bill                                                               
is  not  good. The  base  student  allocation (BSA)  hasn't  been                                                               
increased  since 2010  and teachers  are already  expected to  do                                                               
more  with less.  Bills like  this will  continue that  trend and                                                               
make  her  job even  more  difficult.  She didn't  support  using                                                               
public tax dollars to fund  private schools, and she disputed the                                                               
notion that voucher programs actually increase choice.                                                                          
                                                                                                                                
TIM   PARKER,  Teacher,   Lathrop  High   School,  testified   in                                                               
opposition  to SJR  9. He  talked about  how challenging  voucher                                                               
programs  would   be  for  the   state's  education   system.  He                                                               
maintained  that research  on vouchers  does not  show that  they                                                               
increase  student   performance.  He  dispelled  the   idea  that                                                               
vouchers  provide  more  school  choice. He  said  Alaska  public                                                               
schools already provide  a tremendous amount of  choice, and they                                                               
accept all students.                                                                                                            
                                                                                                                                
MR.  PARKER  discussed  the  six  principles  idea  for  improved                                                               
student   learning:  professional   learning  communities,   peer                                                               
review,  extra   time  for   students,  the   evaluation  system,                                                               
family/school partnerships, and a  rich and varied curriculum. He                                                               
said that SJR 9 in its  current form and opening the constitution                                                               
to  include  private and  religious  schools  does not  meet  the                                                               
threshold of improved student learning.                                                                                         
                                                                                                                                
2:28:54 PM                                                                                                                    
SENATOR DYSON  asked how  Monroe, a  private school,  compares to                                                               
Lathrup in academic achievement and spending.                                                                                   
                                                                                                                                
MR. PARKER said he didn't have that information.                                                                                
                                                                                                                                
2:29:40 PM                                                                                                                    
TODD  HEINMAN,  Principal,  Anvil City  Science  Academy  (ACSA),                                                               
testified in opposition to SJR 9.  He said that ACSA is a charter                                                               
school that  has operated for  15 years and continues  to provide                                                               
parental choice  within the public  school system.  He maintained                                                               
that  using public  funds for  religious and  private educational                                                               
institutions  will  dilute  public   dollars  and  public  school                                                               
students will be negatively affected.                                                                                           
                                                                                                                                
MIKE  HANLEY, Commissioner,  Department  of  Education and  Early                                                               
Development (DEED),  offered to  answer questions related  to SJR
9.                                                                                                                              
                                                                                                                                
2:31:35 PM                                                                                                                    
SENATOR WIELECHOWSKI  asked if the state  was currently expending                                                               
funds unconstitutionally to educational institutions.                                                                           
                                                                                                                                
COMMISSIONER HANLEY  said the areas that  seemed unconstitutional                                                               
were corrected.                                                                                                                 
                                                                                                                                
SENATOR  WIELECHOWSKI asked  if it  was  his opinion  that SJR  9                                                               
isn't  needed  because  of unconstitutional  state  monies  being                                                               
expended.                                                                                                                       
                                                                                                                                
COMMISSIONER  HANLEY  said  he  would  need  clarification  about                                                               
specific expenditures.                                                                                                          
                                                                                                                                
SENATOR  WIELECHOWSKI referred  to the  list of  programs in  the                                                               
sponsor's packet.                                                                                                               
                                                                                                                                
CHAIR COGHILL noted  that several programs such  as the Advantage                                                               
Scholarship were possibly outside the commissioner's purview.                                                                   
                                                                                                                                
COMMISSIONER  HANLEY  deferred  to legal  counsel  regarding  the                                                               
Alaska   Performance  Scholarship   and   the  Alaska   Advantage                                                               
[Education Grant].                                                                                                              
                                                                                                                                
SENATOR WIELECHOWSKI asked  if he had received  legal advice that                                                               
those     expenditures    are     either    constitutional     or                                                               
unconstitutional.                                                                                                               
                                                                                                                                
COMMISSIONER HANLEY said they have been deemed constitutional.                                                                  
                                                                                                                                
SENATOR  WIELECHOWSKI  asked  if  he  was aware  of  any  of  the                                                               
expenditures  being made  by the  state for  educational purposes                                                               
that are unconstitutional.                                                                                                      
                                                                                                                                
COMMISSIONER HANLEY said not that he was aware of.                                                                              
                                                                                                                                
2:33:45 PM                                                                                                                    
SENATOR MCGUIRE asked if the  requirements for charter schools to                                                               
comply with things  like school size and OSHA  standards were put                                                               
in through the regulatory process or statute.                                                                                   
                                                                                                                                
COMMISSIONER HANLEY  said primarily  statute. In  Alaska, charter                                                               
schools  are under  the umbrella  of local  school districts  and                                                               
their organization  and governance is  the same as  a traditional                                                               
neighborhood school.                                                                                                            
                                                                                                                                
SENATOR  MCGUIRE  asked  if  voucher  programs  receiving  public                                                               
monies  would be  required to  comply with  OSHA and  Individuals                                                               
with Disabilities Education Act (IDEA).                                                                                         
                                                                                                                                
COMMISSIONER HANLEY said  he wasn't familiar with  OSHA, but they                                                               
would  have to  comply with  IDEA requirements.  The courts  have                                                               
defined  in  four ways  DEED's  responsibilities  with regard  to                                                               
establishing and maintaining a system  of public education. Those                                                               
are  oversight and  support, creating  standards, assessment  for                                                               
those standards, and  funding. It would be difficult  to meet the                                                               
constitutional  obligations if  the  private institutions  didn't                                                               
meet those  accountability measures. It becomes  a discussion for                                                               
the legislature if this bill moves forward.                                                                                     
                                                                                                                                
2:36:55 PM                                                                                                                    
SENATOR  MCGUIRE  emphasized that  if  public  funds go  into  an                                                               
educational system of any sort  there will be strings attached to                                                               
comply with the requirements of federal law and standards.                                                                      
                                                                                                                                
She asked  if he could  envision letting public schools  erode to                                                               
the point of being nonfunctional.                                                                                               
                                                                                                                                
COMMISSIONER   HANLEY  responded   that  it's   a  constitutional                                                               
responsibility to  adequately fund  and maintain  the educational                                                               
system.  There's  a  responsibility  to meet  the  needs  of  all                                                               
students.                                                                                                                       
                                                                                                                                
2:40:06 PM                                                                                                                    
SENATOR MCGUIRE  asked about the  notion of setting aside  a base                                                               
amount  to   meet  the  constitutional  requirement   for  public                                                               
institutions.                                                                                                                   
                                                                                                                                
COMMISSIONER  HANLEY   said  it   was  a  possibility,   and  the                                                               
responsibility for funding resides with the legislature.                                                                        
                                                                                                                                
2:41:24 PM                                                                                                                    
SENATOR  WIELECHOWSKI asked  if  a private  school that  accepted                                                               
vouchers would  be required to accept  students with disabilities                                                               
or special needs.                                                                                                               
                                                                                                                                
COMMISSIONER  HANLEY  said  it  was  a  legal  conversation,  but                                                               
students are  owed a  free and  appropriate public  education. If                                                               
public funds go  to a private school his expectation  was that it                                                               
would be required to comply  with the same requirements as public                                                               
schools.                                                                                                                        
                                                                                                                                
CHAIR  COGHILL  clarified  that this  wasn't  about  funding  the                                                               
schools;  the  policy  question  is  whether  students  can  take                                                               
funding  with  them.  Then  it's   a  question  of  how  far  the                                                               
requirements can reach, given that funding.                                                                                     
                                                                                                                                
COMMISSIONER  HANLEY  said that  was  his  understanding and  the                                                               
reason why things like the  performance scholarship could go to a                                                               
faith-based school. The funding is a function of the students.                                                                  
                                                                                                                                
2:43:38 PM                                                                                                                    
CHAIR COGHILL said he wanted to  make sure that all the "what if"                                                               
questions were put on the table and debated.                                                                                    
                                                                                                                                
SENATOR  WIELECHOWSKI  asked  if   there  was  any  recourse  for                                                               
taxpayers  who  don't  want  their funding  to  go  to  religious                                                               
schools.                                                                                                                        
                                                                                                                                
COMMISSIONER HANLEY said he did not know.                                                                                       
                                                                                                                                
CHAIR COGHILL  commented that there  are taxpayers  currently who                                                               
don't agree  with a number  of things including sex  education in                                                               
public schools.                                                                                                                 
                                                                                                                                
SENATOR  WIELECHOWSKI   argued  that   the  state   doesn't  fund                                                               
churches.                                                                                                                       
                                                                                                                                
CHAIR COGHILL mentioned secular humanism  as a church issue and a                                                               
philosophy.                                                                                                                     
                                                                                                                                
SENATOR  WIELECHOWSKI pointed  out  that the  state doesn't  fund                                                               
organized churches.                                                                                                             
                                                                                                                                
CHAIR  COGHILL said  he  brought it  up as  part  of the  broader                                                               
conversation.                                                                                                                   
                                                                                                                                
SENATOR  WIELECHOWSKI asked  the  commissioner  if he  envisioned                                                               
placing  any   parameters  on   schools  that   teach  particular                                                               
religious beliefs.                                                                                                              
                                                                                                                                
COMMISSIONER HANLEY said  he has not considered that  yet, but it                                                               
would be problematic for the state to make such determinations.                                                                 
                                                                                                                                
2:46:51 PM                                                                                                                    
CHAIR  COGHILL requested  the  sponsor to  comment  on the  "what                                                               
ifs."                                                                                                                           
                                                                                                                                
SENATOR MIKE DUNLEAVY,  sponsor SJR 9, said he was  happy to talk                                                               
about the  what ifs  for long  periods, but  that isn't  what the                                                               
bill is about.  He referred to the ruling in  Zelman v. Simmonds-                                                               
Harris, which said  it was constitutional for money to  go to the                                                               
children  and the  families could  decide where  the child  would                                                               
receive educational  services. He  described SJR  9 as  not being                                                               
afraid of hearing  what the people of Alaska  want. He emphasized                                                               
that the constitution  and the educational system  belongs to the                                                               
people and these  children belong to their families.  He said his                                                               
intent is not to directly  fund religious schools. If people want                                                               
a voucher it is better done through a tax credit.                                                                               
                                                                                                                                
SENATOR DUNLEAVY  referred to a  letter from  legislative council                                                               
and an attorney general report  from 2005 about crossing the line                                                               
between giving public money to  private and sectarian educational                                                               
entities.  Many people  believe this  is currently  happening. He                                                               
cited a correspondence school that  allows children to purchase a                                                               
course  from Brigham  Young University  and tutorial  services at                                                               
Sylvan  as   examples  of  potentially  crossing   the  line.  He                                                               
referenced  Mr.  Nussbaum's  testimony during  the  last  hearing                                                               
about three  U.S. Supreme Court  cases and opined that  the state                                                               
has a choice.  He said his intent is to  have a broader education                                                               
system with  public accountability.  He said  it is  the people's                                                               
constitution and parents are aware  of their choices. They do not                                                               
need the legislature to protect them.                                                                                           
                                                                                                                                
He referred to a poll that  shows that the people of Alaska would                                                               
like  the opportunity  to vote  on  their constitution  regarding                                                               
this issue.                                                                                                                     
                                                                                                                                
2:53:12 PM                                                                                                                    
SENATOR   WIELECHOWSKI   commented   that  numerous   times   the                                                               
legislature  has overturned  the  will of  the  people. The  most                                                               
recent instance was the cruise ship initiative.                                                                                 
                                                                                                                                
SENATOR DUNLEAVY asked if that  was a constitutional amendment or                                                               
a voter initiative.                                                                                                             
                                                                                                                                
SENATOR  WIELECHOWSKI replied  that was  a voter  initiative. The                                                               
people  voted  on  the  issue,  and just  a  few  weeks  ago  the                                                               
legislature voted to overturn the will of the people.                                                                           
                                                                                                                                
He  asked  if  municipalities  and  local  communities  would  be                                                               
required to  participate if the  state decides to have  a voucher                                                               
program.                                                                                                                        
                                                                                                                                
SENATOR DUNLEAVY  said that  is a discussion  that would  have to                                                               
take place.  Vouchers come in a  variety of types and  he did not                                                               
know if they follow municipal codes.                                                                                            
                                                                                                                                
2:56:07 PM                                                                                                                    
SENATOR WIELECHOWSKI asked  if there is recourse  if someone felt                                                               
strongly  against  using their  public  dollars  for a  religious                                                               
institution.                                                                                                                    
                                                                                                                                
SENATOR DUNLEAVY  replied he did not  know, but he had  not heard                                                               
it  was  a  problem  in  other areas.  He  cited  examples  of  a                                                               
municipality running water  and sewer lines to  a church property                                                               
and clearing a sidewalk in front of a church.                                                                                   
                                                                                                                                
CHAIR COGHILL  said that if  the state  gave public funds  to the                                                               
direct educational benefit  of the student, the  real question is                                                               
if the state could direct the student or family choices.                                                                        
                                                                                                                                
SENATOR DUNLEAVY said that is  possible. He reiterated that he is                                                               
advocating for an expansion of  the public education system where                                                               
students and  their families get  to use their  education dollars                                                               
as they see fit as long as the students pass proficiency tests.                                                                 
                                                                                                                                
2:58:24 PM                                                                                                                    
CHAIR  COGHILL noted  the bill  is  written to  say, "the  direct                                                               
educational benefit" then "as provided  by law," meaning that the                                                               
sponsor's expectation  is that a  set of rules would  follow this                                                               
direct educational benefit.                                                                                                     
                                                                                                                                
SENATOR DUNLEAVY  said absolutely. He  talked about a  tax credit                                                               
bill he was working on  which would include private and/or faith-                                                               
based  educational entities  along  with a  dozen other  entities                                                               
that are currently receiving tax  credits. He maintained that the                                                               
bill would  show what a  "voucher" would look like.  He explained                                                               
that he  was trying  to make  sure that  the millions  of dollars                                                               
currently being spent are for  things that are constitutional. He                                                               
predicted that the future is voucher/tax credit.                                                                                
                                                                                                                                
CHAIR COGHILL  said he wanted to  have a record of  debate by the                                                               
committee therefore, he  would hold SJR 9 in  committee until the                                                               
next meeting. He closed public testimony.                                                                                       
                                                                                                                                
3:02:12 PM                                                                                                                    
There being  no further  business to  come before  the committee,                                                               
Chair Coghill  adjourned the Senate Judiciary  Standing Committee                                                               
at 3:02 p.m.                                                                                                                    
                                                                                                                                

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