03/31/2014 08:30 AM House FINANCE

HOUSE BILL NO. 127                                                                                                            
                                                                                                                                
     "An Act clarifying that the Alaska Bar Association is                                                                      
     an agency for purposes of investigations by the                                                                            
     ombudsman;  relating to  compensation of  the ombudsman                                                                    
     and  to  employment of  staff  by  the ombudsman  under                                                                    
     personal  service  contracts;  providing  that  certain                                                                    
     records of communications between  the ombudsman and an                                                                    
     agency are  not public records; relating  to disclosure                                                                    
     by  an  agency  to   the  ombudsman  of  communications                                                                    
     subject  to attorney-client  and attorney  work-product                                                                    
     privileges; relating to informal  and formal reports of                                                                    
     opinions and  recommendations issued by  the ombudsman;                                                                    
     relating  to  the privilege  of  the  ombudsman not  to                                                                    
     testify  and  creating  a  privilege  under  which  the                                                                    
     ombudsman   is  not   required   to  disclose   certain                                                                    
     documents;  relating to  procedures for  procurement by                                                                    
     the ombudsman;  relating to the definition  of 'agency'                                                                    
     for  purposes  of  the   Ombudsman  Act  and  providing                                                                    
     jurisdiction  of the  ombudsman over  persons providing                                                                    
     certain  services   to  the  state  by   contract;  and                                                                    
     amending Rules 501 and 503, Alaska Rules of Evidence."                                                                     
                                                                                                                                
10:21:29 AM                                                                                                                   
                                                                                                                                
BETH LEIBOWITZ, ASSISTANT OMBUDSMAN, OFFICE OF THE                                                                              
OMBUDSMAN, offered a sponsor statement:                                                                                         
                                                                                                                                
     The  Ombudsman  Act (AS  24.55)  has  not changed  much                                                                    
     since  enactment in  1975, which  speaks  well for  its                                                                    
     basic structure.  The ombudsman requested  and obtained                                                                    
     some  modifications of  the Ombudsman  Act in  1990. It                                                                    
     has  become  apparent  that  the  Ombudsman  Act  would                                                                    
     benefit  from updates  to address  several issues  that                                                                    
     have arisen since 1990.                                                                                                    
                                                                                                                                
     The following  is a brief sectional  description of the                                                                    
     bill:                                                                                                                      
                                                                                                                                
        · Section 1 of CSHB 127(JUD) provides that the                                                                          
          ombudsman may  receive a step increase  in salary,                                                                    
          rather than remaining  Step A of Range  26 for the                                                                    
          ombudsman's entire term or terms.                                                                                     
        · Section 2 clarifies the ombudsman's authority to                                                                      
          hire  additional staff  using a  personal services                                                                    
          contract pursuant to AS 24.55.060(f).                                                                                 
        · Section 3 amends a section on the ombudsman's                                                                         
          investigatory   authority  to   refer  simply   to                                                                    
          "agency"  instead of  "state agency."  This brings                                                                    
          the section into conformance with  the rest of the                                                                    
          Ombudsman  Act  (AS   24.55),  which  consistently                                                                    
          refers   to    the   ombudsman's    authority   to                                                                    
          investigate an administrative "agency."                                                                               
        · Section 4 prevents a general waiver of attorney-                                                                      
          client  privilege by  an agency  if it  shares its                                                                    
          attorney's  advice with  the Officer  Ombudsman in                                                                    
          order to explain the agency's actions.                                                                                
        · Section 5 improves the wording of the ombudsman's                                                                     
          existing  privilege  not  to  testify  or  produce                                                                    
          records   regarding   matters   brought   to   the                                                                    
          ombudsman's  attention   in  the  course   of  her                                                                    
          duties.                                                                                                               
        · Section 6 modernizes the ombudsman's procurement                                                                      
          authority.                                                                                                            
        · Sections 7 and 8 state that sections 4 and 5 are                                                                      
          indirect  court   rule  amendments   because  they                                                                    
          modify  evidentiary  rules,   and  that  therefore                                                                    
          sections  4   and  5  only  take   effect  if  the                                                                    
          legislation is  approved by a  two-thirds majority                                                                    
          vote  of  each  house,  as required  by  Art.  IV,                                                                    
          Section  15 of  the Constitution  of the  State of                                                                    
          Alaska.                                                                                                               
                                                                                                                                
10:26:41 AM                                                                                                                   
                                                                                                                                
LINDA   LORD-JENKINS,   STATE  OMBUDSMAN,   ANCHORAGE   (via                                                                    
teleconference),  supported  the  comments provided  by  her                                                                    
assistant.                                                                                                                      
                                                                                                                                
Representative Guttenberg  asked whether  sections 4  and 5.                                                                    
applied when the ombudsman was not an attorney.                                                                                 
                                                                                                                                
Ms. Leibowitz  clarified that the  section did not  speak to                                                                    
attorney-client privilege.  She said that the  privilege was                                                                    
typical of ombudsman  statutes and was designed  to keep the                                                                    
ombudsman   from  being   a  witness   in  other   forms  of                                                                    
litigation.                                                                                                                     
                                                                                                                                
Representative Guttenberg  understood that the  courts could                                                                    
not compel an ombudsman or their staff under Section 5.                                                                         
                                                                                                                                
Ms.  Leibowitz replied  that that  was her  understanding of                                                                    
the section.                                                                                                                    
                                                                                                                                
10:29:13 AM                                                                                                                   
                                                                                                                                
Co-Chair Stoltze asked about jurisdiction and interface                                                                         
between criminal activities of a statutorily empowered                                                                          
agency.                                                                                                                         
                                                                                                                                
Ms. Lord-Jenkins replied nothing had changed in the way the                                                                     
office had historically handled those matters.                                                                                  
                                                                                                                                
Co-Chair Stoltze CLOSED public testimony.                                                                                       
                                                                                                                                
HB 127 was HEARD and HELD in committee for further                                                                              
consideration.