04/15/2014 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB250 | |
| HB127 | |
| HB140 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 140 | TELECONFERENCED | |
| += | HB 127 | TELECONFERENCED | |
| += | HB 250 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
April 15, 2014
1:42 p.m.
MEMBERS PRESENT
Senator John Coghill, Chair
Senator Lesil McGuire, Vice Chair
Senator Fred Dyson
Senator Bill Wielechowski
MEMBERS ABSENT
Senator Donald Olson
COMMITTEE CALENDAR
COMMITTEE SUBSTITUTE FOR HOUSE BILL NO. 250(HSS) AM
"An Act making an expression of apology, sympathy,
commiseration, compassion, or benevolence by a health care
provider inadmissible in a medical malpractice case; requiring a
health care provider to advise a patient or the patient's legal
representative to seek legal advice before making an agreement
with the patient to correct an unanticipated outcome of medical
treatment or care; and amending Rules 402, 407, 408, 409, and
801, Alaska Rules of Evidence."
- MOVED CSHB 250(HSS) AM OUT OF COMMITTEE
COMMITTEE SUBSTITUTE FOR HOUSE BILL NO. 127(JUD)
"An Act relating to compensation of the ombudsman and to
employment of staff by the ombudsman under personal service
contracts; relating to disclosure by an agency to the ombudsman
of communications subject to attorney-client and attorney work-
product privileges; 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; and
amending Rules 501 and 503, Alaska Rules of Evidence."
- HEARD & HELD
COMMITTEE SUBSTITUTE FOR HOUSE BILL NO. 140(FIN) AM
"An Act relating to the proposed adoption, amendment, or repeal
of a regulation; and relating to contact with agencies about
regulations."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 250
SHORT TITLE: MEDICAL MALPRACTICE ACTIONS
SPONSOR(s): REPRESENTATIVE(s) OLSON
01/21/14 (H) PREFILE RELEASED 1/17/14
01/21/14 (H) READ THE FIRST TIME - REFERRALS
01/21/14 (H) HSS, JUD
02/27/14 (H) HSS AT 3:00 PM CAPITOL 106
02/27/14 (H) Heard & Held
02/27/14 (H) MINUTE(HSS)
03/13/14 (H) HSS AT 3:00 PM CAPITOL 106
03/13/14 (H) Scheduled But Not Heard
03/14/14 (H) HSS AT 8:00 AM CAPITOL 106
03/14/14 (H) Moved CSHB 250(HSS) Out of Committee
03/14/14 (H) MINUTE(HSS)
03/17/14 (H) HSS RPT CS(HSS) NT 6DP
03/17/14 (H) DP: REINBOLD, PRUITT, KELLER, NAGEAK,
TARR, HIGGINS
03/24/14 (H) JUD AT 1:00 PM CAPITOL 120
03/24/14 (H) Heard & Held
03/24/14 (H) MINUTE(JUD)
03/26/14 (H) JUD AT 1:00 PM CAPITOL 120
03/26/14 (H) Moved CSHB 250(HSS) Out of Committee
03/26/14 (H) MINUTE(JUD)
03/27/14 (H) JUD RPT CS(HSS) NT 3DP 2NR
03/27/14 (H) DP: FOSTER, GRUENBERG, KELLER
03/27/14 (H) NR: LEDOUX, LYNN
04/11/14 (H) TRANSMITTED TO (S)
04/11/14 (H) VERSION: CSHB 250(HSS) AM
04/11/14 (S) READ THE FIRST TIME - REFERRALS
04/11/14 (S) JUD
04/14/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
04/14/14 (S) Heard & Held
04/14/14 (S) MINUTE(JUD)
04/15/14 (S) JUD AT 1:30 PM FAHRENKAMP 203
BILL: HB 140
SHORT TITLE: REGULATIONS: NOTICE, REVIEW, COMMENT
SPONSOR(s): REPRESENTATIVE(s) REINBOLD
02/22/13 (H) READ THE FIRST TIME - REFERRALS
02/22/13 (H) JUD
03/18/13 (H) JUD AT 1:00 PM CAPITOL 120
03/18/13 (H) Heard & Held
03/18/13 (H) MINUTE(JUD)
03/25/13 (H) JUD AT 1:00 PM CAPITOL 120
03/25/13 (H) Scheduled But Not Heard
03/27/13 (H) JUD AT 1:00 PM CAPITOL 120
03/27/13 (H) Scheduled But Not Heard
03/29/13 (H) JUD AT 1:00 PM CAPITOL 120
03/29/13 (H) <Bill Hearing Canceled>
04/08/13 (H) JUD AT 1:00 PM CAPITOL 120
04/08/13 (H) Moved CSHB 140(JUD) Out of Committee
04/08/13 (H) MINUTE(JUD)
04/09/13 (H) JUD RPT CS(JUD) 5DP 1NR
04/09/13 (H) DP: PRUITT, FOSTER, LEDOUX, LYNN,
KELLER
04/09/13 (H) NR: GRUENBERG
04/09/13 (H) FIN REFERRAL ADDED AFTER JUD
03/13/14 (H) FIN AT 8:30 AM HOUSE FINANCE 519
03/13/14 (H) Heard & Held
03/13/14 (H) MINUTE(FIN)
03/21/14 (H) FIN AT 1:30 PM HOUSE FINANCE 519
03/21/14 (H) Moved CSHB 140(FIN) Out of Committee
03/21/14 (H) MINUTE(FIN)
03/25/14 (H) FIN RPT CS(FIN) NT 10DP
03/25/14 (H) DP: NEUMAN, THOMPSON, EDGMON, MUNOZ,
GARA, HOLMES, T.WILSON, COSTELLO,
STOLTZE,
03/25/14 (H) AUSTERMAN
03/31/14 (H) TRANSMITTED TO (S)
03/31/14 (H) VERSION: CSHB 140(FIN) AM
04/02/14 (S) READ THE FIRST TIME - REFERRALS
04/02/14 (S) JUD, FIN
04/09/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
04/09/14 (S) <Above Bill Hearing Canceled>
04/11/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
04/11/14 (S) -- MEETING CANCELED --
04/14/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
04/14/14 (S) Heard & Held
04/14/14 (S) MINUTE(JUD)
04/15/14 (S) JUD AT 1:30 PM FAHRENKAMP 203
BILL: HB 127
SHORT TITLE: OMBUDSMAN
SPONSOR(s): RULES BY REQUEST
02/18/13 (H) READ THE FIRST TIME - REFERRALS
02/18/13 (H) STA, JUD
03/12/13 (H) STA AT 8:00 AM CAPITOL 106
03/12/13 (H) Heard & Held
03/12/13 (H) MINUTE(STA)
03/21/13 (H) STA AT 8:00 AM CAPITOL 106
03/21/13 (H) <Bill Hearing Rescheduled to 3/26/13>
03/26/13 (H) STA AT 8:00 AM CAPITOL 106
03/26/13 (H) Heard & Held; Assigned to Subcommittee
03/26/13 (H) MINUTE(STA)
02/07/14 (H) STA AT 3:00 PM CAPITOL 120
02/07/14 (H) Work Session on above Bill
02/25/14 (H) STA AT 8:00 AM CAPITOL 106
02/25/14 (H) Heard & Held
02/25/14 (H) MINUTE(STA)
02/27/14 (H) STA AT 8:00 AM CAPITOL 106
02/27/14 (H) Heard & Held
02/27/14 (H) MINUTE(STA)
03/06/14 (H) STA AT 8:00 AM CAPITOL 106
03/06/14 (H) Moved CSHB 127(STA) Out of Committee
03/06/14 (H) MINUTE(STA)
03/07/14 (H) JUD AT 1:00 PM CAPITOL 120
03/07/14 (H) <Bill Hearing Canceled>
03/10/14 (H) STA RPT CS(STA) NT 1DP 1NR 3AM
03/10/14 (H) DP: LYNN
03/10/14 (H) NR: GATTIS
03/10/14 (H) AM: KELLER, KREISS-TOMKINS, HUGHES
03/12/14 (H) JUD AT 1:00 PM CAPITOL 120
03/12/14 (H) -- MEETING CANCELED --
03/14/14 (H) JUD AT 1:00 PM CAPITOL 120
03/14/14 (H) Heard & Held
03/14/14 (H) MINUTE(JUD)
03/19/14 (H) JUD AT 1:00 PM CAPITOL 120
03/19/14 (H) Heard & Held
03/19/14 (H) MINUTE(JUD)
03/24/14 (H) JUD AT 1:00 PM CAPITOL 120
03/24/14 (H) Moved CSHB 127(JUD) Out of Committee
03/24/14 (H) MINUTE(JUD)
03/25/14 (H) JUD RPT CS(JUD) NT 3DP 2NR
03/25/14 (H) DP: GRUENBERG, LYNN, KELLER
03/25/14 (H) NR: LEDOUX, PRUITT
03/25/14 (H) FIN REFERRAL ADDED AFTER JUD
03/31/14 (H) FIN AT 8:30 AM HOUSE FINANCE 519
03/31/14 (H) Heard & Held
03/31/14 (H) MINUTE(FIN)
04/01/14 (H) FIN RPT CS(JUD) NT 9DP 1NR
04/01/14 (H) DP: GUTTENBERG, HOLMES, MUNOZ,
THOMPSON, EDGMON, T.WILSON, COSTELLO,
STOLTZE,
04/01/14 (H) AUSTERMAN
04/01/14 (H) NR: NEUMAN
04/01/14 (H) FIN AT 8:30 AM HOUSE FINANCE 519
04/01/14 (H) Moved CSHB 127(JUD) Out of Committee
04/01/14 (H) MINUTE(FIN)
04/07/14 (H) RLS AT 5:00 PM CAPITOL 120
04/07/14 (H) -- MEETING CANCELED --
04/09/14 (H) TRANSMITTED TO (S)
04/09/14 (H) VERSION: CSHB 127(JUD)
04/11/14 (S) READ THE FIRST TIME - REFERRALS
04/11/14 (S) JUD
04/14/14 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
04/14/14 (S) Heard & Held
04/14/14 (S) MINUTE(JUD)
04/15/14 (S) JUD AT 1:30 PM FAHRENKAMP 203
WITNESS REGISTER
ERIKA O'SULLIVAN, Staff
Representative Kurt Olson
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Reviewed the changes between HB 250 Version
A and Version P.A on behalf of the sponsor.
DOUG WOJCIESZAK, Sorry Works
POSITION STATEMENT: Testified in support of HB 250.
LINDA LORD-JENKINS, Ombudsman
Office of the Ombudsman
Alaska State Legislature
Anchorage, Alaska
POSITION STATEMENT: Answered questions related to HB 127.
BETH LEIBOWITZ, Assistant Ombudsman
Office of the Ombudsman
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Provided information related to HB 127.
REPRESENTATIVE LORA REINBOLD
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 140
MARK ECK, representing himself
Fairbanks, Alaska
POSITION STATEMENT: Testified in opposition to HB 140.
JAMES SQUYRES, representing himself
Delta Junction, Alaska
POSITION STATEMENT: Testified in support of HB 140.
PAMELA GOODE, representing herself
Delta Junction, Alaska
POSITION STATEMENT: Testified in support of HB 140.
JIM POUND, Staff
Representative Wes Keller
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Voiced concerns with Version K of HB 140.
CRYSTAL KOENEMAN, Staff
Representative Lora Reinbold
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Provided information related to HB 140 on
behalf of the sponsor.
ACTION NARRATIVE
1:42:52 PM
CHAIR JOHN COGHILL called the Senate Judiciary Standing
Committee meeting to order at 1:42 p.m. Present at the call to
order were Senators Dyson, Wielechowski, and Chair Coghill.
Senator McGuire arrived during the course of the meeting.
HB 250-MEDICAL MALPRACTICE ACTIONS
1:43:52 PM
CHAIR COGHILL announced the consideration of HB 250. "An Act
making an expression of apology, sympathy, commiseration,
compassion, or benevolence by a health care provider
inadmissible in a medical malpractice case; requiring a health
care provider to advise a patient or the patient's legal
representative to seek legal advice before making an agreement
with the patient to correct an unanticipated outcome of medical
treatment or care; and amending Rules 402, 407, 408, 409, and
801, Alaska Rules of Evidence." [This was the second hearing and
CSHB 250(HSS) AM was before the committee.]
1:44:18 PM
ERIKA O'SULLIVAN, Staff, Representative Kurt Olson, Alaska State
Legislature, Juneau, Alaska, reviewed the following changes
between HB 250 Version A and Version P.A: [Original punctuation
provided.]
On page 1, line 1 of the bill title, the words
'liability' and 'responsibility' were deleted. Under
Sec. 1(a) on page 1, line 12 'liability' and
'responsibility' were deleted.
Under Sec. 1(a), page 2, line 14, subsection (5) was
added to read: "evidence of a health care provider
requesting, demanding, inquiring, or directing another
to write-off, offer or promise to pay medical,
hospital, or similar expenses, in whole or in part,
following an unanticipated outcome of medical
treatment or care."
Under Sec. 1, page 2, line 18, subsection (b) was
added to read: "If an expression of apology, sympathy,
commiseration, compassion, or benevolence made under
(a)(1) of this section is made in conjunction with an
admission of liability, or negligence, only the
expression of apology, sympathy, commiseration,
compassion, or benevolence is inadmissible, and the
admission of liability, or negligence may be
admissible as evidence."
Under Sec. 09.55.545 on page 3, line 7, "to" was
deleted, and "in writing that the patient or patient's
legal representative may" was inserted.
Under Sec. 2(1), on page 3, line 14, 'liability' and
'responsibility' were deleted.
Under Sec. 4, page 4, line 4, the CONDITIONAL EFFECT
was amended to include Sec. AS 09.55.545.
1:48:40 PM
SENATOR WIELECHOWSKI asked if she was aware of any opposition to
the bill.
MS. O'SULLIVAN said a trial attorney expressed concern with the
original version, but most people have expressed satisfaction
with the changes that exclude the words "liability" and
"responsibility."
SENATOR WIELECHOWSKI asked if it's fair to say that the changes
found in Version P.A represent a compromise between the doctors
and lawyers.
MS. O'SULLIVAN responded that the intent is to open the dialog
with doctors while including important consumer protection
components in the bill.
SENATOR WIELECHOWSKI asked if there have been cases where
doctors have apologized and had that used against them in court.
MS. O'SULLIVAN deferred the question to Mr. Wojcieszak.
1:50:16 PM
DOUG WOJCIESZAK, Founder of Sorry Works, the leading
organization teaching healthcare professionals how to talk with
families and disclose when things go wrong in a medical setting,
stated support for HB 250. He said that states that have apology
laws offer encouragement for doctors to talk with patients and
families when a medical event goes wrong. Data shows that these
laws improve communication in difficult situations, which is to
everyone's benefit. When something goes wrong from a known
complication or a true error, the best thing that can happen for
everyone involved is to sit down and have an adult conversation
about what happened and try to seek solutions. When doctors and
nurses don't communicate and instead choose to run away and
hide, consumers are more inclined to seek retribution through
the legal system.
Responding to Senator Wielechowski's question, he said a paper
that came out several years ago looked at that question but the
author couldn't find any cases. There have been times when trial
lawyers have tried to use it against doctors, but it usually
backfires because a doctor who apologizes doesn't appear to be
an unfeeling and uncaring human being. He reiterated his support
for HB 250.
1:53:40 PM
SENATOR MCGUIRE joined the committee. She disclosed that her
father is a surgeon licensed in the state of Alaska.
CHAIR COGHILL found no further testimony, questions, or comments
and solicited a motion.
1:54:54 PM
SENATOR DYSON moved to report HB 250, Version P.A, from
committee with individual recommendations and attached fiscal
note(s).
CHAIR COGHILL announced that without objection CSHB 250(HSS) AM
was reported from the Senate Judiciary Standing Committee.
1:55:32 PM
At Ease
HB 127-OMBUDSMAN
1:57:15 PM
CHAIR COGHILL reconvened the meeting and announced the
consideration of HB 127. "An Act relating to compensation of the
ombudsman and to employment of staff by the ombudsman under
personal service contracts; relating to disclosure by an agency
to the ombudsman of communications subject to attorney-client
and attorney work-product privileges; 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; and amending Rules 501 and 503, Alaska Rules of
Evidence." He noted that this was the second hearing. [CSHB
127(JUD) was before the committee.]
He asked Senator Wielechowski if his questions were answered.
1:57:47 PM
SENATOR WIELECHOWSKI moved Amendment 1, labeled 28-LS0088\B.2
CHAIR COGHILL objected.
AMENDMENT 1
OFFERED IN THE SENATE BY SENATOR WIELECHOWSKI
TO: CSSB 127(JUD)
Page 2, line 19, following "subsection":
Insert "unless the communication is evidence of
illegal activity"
SENATOR WIELECHOWSKI explained that his concern was that illegal
activity that an ombudsman finds in the course of an
investigation should not be shielded.
CHAIR COGHILL asked Ms. Lord-Jenkins to clarify how the proposed
amendment to Subsection 4 would affect the ombudsman's
investigative procedures under AS 24.55.160.
2:00:19 PM
LINDA LORD-JENKINS, Ombudsman, Office of the Ombudsman, Alaska
State Legislature, Anchorage, Alaska, read the statutes
governing the ombudsman's duty to publish recommendations under
AS 24.55.200 and the procedure under AS 24.55.220 if the
ombudsman believes there is misconduct by agency personnel.
CHAIR COGHILL asked how the new subsection (c) for AS 24.55.160
differs from the ombudsman's current responsibility.
2:03:25 PM
BETH LEIBOWITZ, Assistant Ombudsman, Office of the Ombudsman,
Alaska State Legislature, Juneau, Alaska, explained that, under
AS 24.55.220, the ombudsman is required to refer a finding of
misconduct or blatant illegality to the appropriate entity.
However, that does not give the ombudsman the ability to
disclose a record that is otherwise confidential. The proposed
amendment to Section 4 says that if the ombudsman receives a
privileged communication from an agency, the ombudsman would
hand that over as part of the referral. Without the amendment,
the ombudsman would continue to be able to refer the matter to
the appropriate authority, but would not be able to deliver a
copy of a privileged communication that the ombudsman may have
received.
SENATOR DYSON said he assumes that much of what the person who
requests an investigation says is privileged.
MS. LEIBOWITZ replied the ombudsman has an obligation of
confidentiality to the person who comes forward with a
complaint. There is also testimonial privilege which says the
ombudsman may only disclosure as necessary to carry out the
duties of the Ombudsman Act.
SENATOR DYSON observed that the discussion is that the ombudsman
can refer a client's disclosure of illegal activities to the
appropriate agency.
MS. LEIBOWITZ replied the statute doesn't talk about what the
ombudsman is to do if a complainant discloses criminal activity,
whereas AS 24.55.160 gives the clear duty to refer the
misconduct to the head of the agency, law enforcement, or both.
SENATOR DYSON asked if the ombudsman can under present law
disclose information from one person alleging illegal activity
by another person or group.
MS. LEIBOWITZ said she believes so.
SENATOR DYSON asked if it's correct to infer that the amendment
would restrict the ombudsman in a way that it is not presently
restricted.
MS. LEIBOWITZ clarified that it would undermine the specific
provision that would allow an agency to share attorney-client
privileged material with the ombudsman who would respect the
privilege. Responding to a further question from Senator Dyson,
she explained that Section 4 deals specifically with attorney-
client privileged material that is given to the ombudsman in the
course of an investigation.
2:09:12 PM
SENATOR WIELECHOWSKI provided an example. During the course of
an agency investigation the ombudsman uncovers attorney-client
privileged documents in which an executive admits to having
broken the law. The statute requires the ombudsman to report the
admission, but Section 4 makes it clear that the accompanying
document may not be provided. He maintained that creating that
shield does not benefit the public and was a bad policy.
SENATOR MCGUIRE discussed the balance between getting agencies
to cooperate in an investigation versus the public's right to
get reconciliation and understand what's going on. She said she
was torn.
MS. LEIBOWITZ said she believes that if an agency director
admits to illegal conduct in a privileged communication with the
Department of Law, it probably will lead to plenty of non-
privileged evidence that can be disclosed.
SENATOR MCGUIRE said she could support that.
MS. LORD-JENKINS again pointed out that under AS 24.55.200 the
ombudsman not only reports the activity to the agency but also
has the option of presenting it to "the governor, the
legislature, a grand jury, the public or any of these." The
ombudsman could tell a complainant their allegations are
substantiated, but the complainant could not be told why because
it's based on confidential information that the complainant is
not otherwise entitled to have.
MS. LORD-JENKINS said that in the name of transparency she
agrees that citizens have the right to know, but under the law
there are certain things that citizens are not entitled to know.
2:15:37 PM
SENATOR WIELECHOWSKI maintained that it's good state policy to
require departments in Alaska to cooperate with the ombudsmen.
That means turning over privileged documents and if they show
illegal activity it will be reported.
MS. LORD-JENKINS, responding to a question from Senator Dyson,
explained that when the ombudsman office was created in 1976, it
had access to privileged attorney-client information. The
legislature amended the statute in the early 1990s at the
request of the Public Defender Agency and the Office of Public
Advocacy defense section. The unintended consequence was that
the ombudsman lost access to attorney-client privileged
material. An agency can waive the attorney-client privilege, but
based on case law if an agency and the DOL waives privilege as
to one entity then all other entities have that access. The
provision in Section 4 would allow an agency to waive privilege
without having it be public information for everybody.
SENATOR DYSON asked if Senator Wielechowski's amendment would
give the ombudsman's office the same access to privileged
attorney-client information that it had in 1976.
MS. LEIBOWITZ said the amendment may approach the original
access, but it may create problems if agencies realize that the
waiver allows other entities to have access to the privileged
material.
SENATOR WIELECHOWSKI addressed Senator Dyson's question. The
bill says that the ombudsman may not disclose a privileged
communication under subsection (c). The amendment adds that this
doesn't apply if the information pertains to illegal activity.
CHAIR COGHILL asked if the agencies are shielded without this
amendment.
MS. LEIBOWITZ stated that under current law they are completely
shielded.
CHAIR COGHILL offered his understanding that under current law
the ombudsman's ability to receive any privileged information is
negotiated.
MS. LEIBOWITZ responded that agencies have an active
disincentive to waive privilege to the ombudsman because case
law indicates that it would evaporate the privilege for all
parties.
SENATOR WIELECHOWSKI said he wants a strong ombudsman and
doesn't believe that agencies should be coddled. In light of
this discussion, he suggested adding a provision requiring
agencies to disclose attorney-client privileged or attorney work
product to the ombudsman upon request.
SENATOR DYSON said he supports the ombudsman and he technically
agrees with the amendment, but he did not want to jeopardize the
bill.
2:27:40 PM
SENATOR MCGUIRE asked if the ombudsman had the power to compel
attorney-client privileged documents before the legislature
changed the statute in the 1990s. She also asked if they would
object to reinserting that language.
MS. LEIBOWITZ clarified that the original statute gave the
ombudsman broad power but it was not express. The 1990
amendments were designed to make the ombudsman's authority to
access agency records absolutely express, and one of the
compromises to get that amendment through was to exclude
attorney-client privileged material and attorney work product.
CHAIR COGHILL offered his understanding that [Section 4] is the
first attempt to get back to attorney-client privileged
information.
MS. LEIBOWITZ said that's correct.
SENATOR MCGUIRE said her concern is that the net effect will be
that an agency will disclose attorney-client privileged
information that supports their position, but not if the
information supports the other side or reveals some misconduct.
2:30:24 PM
MS. LORD-JENKINS agreed there is always that concern and it
might be a good idea to think about this in small steps. She
suggested that her office could track their requests to agencies
to waiver attorney-client privilege and the rate of cooperation.
She opined that it would be a very telling fact if an agency
agreed to waive the privilege as long as they didn't have to
worry about the waiver going to all parties.
2:32:41 PM
CHAIR COGHILL maintained his objection to Amendment 1.
SENATOR WIELECHOWSKI responded that he believes in the attorney-
client privilege for private parties, but it's a little
different with government. Taxpayers pay the salaries of
government employees and would essentially be paying an attorney
to potentially cover up some illegal activity. He said that's
fundamentally wrong and he continues to believe that there
should be another provision that requires agencies to disclose
attorney-client privileged information. He offered to continue
to work on the amendment between now and when the bill reaches
the floor if there wasn't support for it in the committee.
SENATOR MCGUIRE suggested the amendment say that the waiver does
not apply to any other person and that illegal activity can be
disclosed. She said she would vote for the amendment because
it's right and she had no compelling reason not to.
CHAIR COGHILL asked Senator Wielechowski to withdraw the
amendment, do more homework, and address it tomorrow.
2:35:55 PM
SENATOR WIELECHOWSKI withdrew Amendment 1.
SENATOR DYSON requested the bill sponsor be included in the
discussion.
CHAIR COGHILL agreed.
MS. LEIBOWITZ said she believes the ombudsman is unlikely to
obtain privileged information that would fit the amendment.
SENATOR MCGUIRE restated her proposal to compel agencies to
provide the information in all cases.
SENATOR WIELECHOWSKI stated his intention to work cooperatively
with the interested parties.
SENATOR WIELECHOWSKI distributed another amendment for the
committee to review.
2:39:49 PM
CHAIR COGHILL held HB 127 for further consideration.
HB 140-REGULATIONS: NOTICE, REVIEW, COMMENT
2:40:23 PM
CHAIR COGHILL announced the consideration of HB 140. "An Act
relating to the proposed adoption, amendment, or repeal of a
regulation; and relating to contact with agencies about
regulations." This was the second hearing and he noted the new
committee substitute (CS).
2:41:24 PM
SENATOR DYSON moved to adopt the work draft committee substitute
to HB 140, labeled 28-LS0478\K, as the working document.
CHAIR COGHILL objected. He explained that the CS removes the
Regulatory Commission of Alaska (RCA), the Board of Fisheries,
the Board of Game, the Alaska Public Offices Commission (APOC),
and the Alaska Oil and Gas Conservation Commission (AOGCC) from
the requirements in the bill.
2:42:11 PM
REPRESENTATIVE LORA REINBOLD, Alaska State Legislature, Juneau,
Alaska, sponsor of HB 140 expressed concern that Version K
unnecessarily excludes a number of agencies and may decrease
transparency. She stated her four guiding principle when she
wrote the legislation:
1. The highest level of prosperity occurs when there is a free
market economy and a minimum of government regulations.
2. The government should be separated into three branches. She
said that she wanted to ensure that the Department of Law
does not have any undue influence over the legislative
branch.
3. A system of checks and balances should be adopted to
prevent the abuse of power by the different branches of
government.
4. Only limited and carefully defined powers should be
delegated to government and all others being retained by
the people. She said the whole purpose of the legislation
was to empower the people and she wanted to maintain that
as much as possible.
CHAIR COGHILL opened public testimony.
2:46:15 PM
MARK ECK, representing himself, Fairbanks, Alaska, stated that
passing HB 140 would impose unconstitutional and overreaching
regulations on the people and businesses that support the
Alaskan and U.S. economies. He mentioned overregulation by
agencies that have little to no check on the way they operate,
regulations that have the unintended consequence of hurting more
people than they help, and the financial impact of regulations
on businesses that support Alaskan families and bring revenue to
the state. He stated support for having the governor review
regulations and posting notifications to the public about
regulations that would help the people comply with such
regulations.
2:47:50 PM
JAMES ARTHUR SQUYRES, representing himself, Delta Junction,
Alaska, testified in support of HB 140. He said that the fact
that there is an Administrative Regulation Review Committee and
that Governor Parnell wrote Administrative Order 266 support the
notion that many state regulations overreach the statutes. He
stressed the importance of checks and balances to ensure that
new regulations are well written and fully vetted to avoid the
unnecessary burden of changing or removing them after the fact.
This can be very difficult because departments say they need
every one of their regulations, citing broad statutory powers
that allow their bureaucracies to grow seemingly unchecked. He
pointed out that Alaska has a looming financial crisis on the
horizon which makes it more important than ever to run the
leanest most efficient state government possible. He applauded
HB 140 as a new tool to hold regulation writing state agencies
accountable, to encourage dialog between all parties, and to
protect the people of Alaska from overreaching regulations.
2:51:07 PM
PAMELA GOODE, representing herself, Delta Junction, Alaska,
testified in support of HB 140. She said she used to think that
state government had control over the state bureaucrats and the
regulations that they write but she now realizes that isn't
necessarily true. She discussed the problems that the
groundwater protection and water well stakeholder work group is
having because wellhead protection is funded 100 percent by the
EPA and is a required element for Alaska to maintain primacy for
Clean Water Act regulations. The group came to realize that the
conflict over data and well drillers logs were an overreach of
statute and constitutionality. She urged the legislature to
regain its proper lawful authority.
CHAIR COGHILL asked Mr. Pound to comment on the Senate committee
substitute, Version K.
2:55:01 PM
JIM POUND, Staff, Representative Wes Keller, Alaska State
Legislature, Juneau, Alaska, said he worked on HB 140 with
Representative Reinbold over the Interim and he had concerns
with Version K. He agreed with the sponsor that the RCA should
not be exempt because their decisions directly affect the
public. If they approve a pipeline tariff, gas prices go up and
if they approve a rate increase for a utility, light bills or
telephone bills go up. He declined to address the APOC exemption
without doing some homework.
CHAIR COGHILL said he wanted to highlight APOC because he was
concerned that it was taking over the ethics statute, but he
didn't necessarily mean to provide an exemption.
SENATOR MCGUIRE asked Mr. Pound his thoughts on the Board of
Fisheries and AOGCC.
MR. POUND said the sponsor had no objection to those exemptions
because their processes are more public than other boards and
commissions.
2:59:16 PM}
CRYSTAL KOENEMAN, Staff, Representative Lora Reinbold, Alaska
State Legislature, Juneau, Alaska, added that there are certain
justifications for potentially exempting the Board of Fisheries
the Board of Game, and AOGCC in the bill. She cited the cost
analysis of fish runs and the open public processes as reasons.
REPRESENTATIVE REINBOLD highlighted that those entities need to
be excluded from certain but not all provisions.
3:01:37 PM
CHAIR COGHILL stated that he was maintaining his objection to
Version K and would hold HB 140 for further consideration.
3:01:47 PM
There being no further business to come before the committee,
Chair Coghill adjourned the Senate Judiciary Standing Committee
meeting at 3:01 p.m.
| Document Name | Date/Time | Subjects |
|---|