Legislature(2013 - 2014)CAPITOL 120
03/14/2014 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HJR18 | |
| HJR33 | |
| HB127 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 127 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HJR 18 | TELECONFERENCED | |
| += | HB 205 | TELECONFERENCED | |
| += | HJR 33 | TELECONFERENCED | |
HB 127-OMBUDSMAN
2:31:22 PM
CHAIR KELLER announced that the final order of business would be
HB 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." [Before
the committee is CSHB 127(STA).]
2:34:09 PM
BETH LEIBOWITZ, Assistant Ombudsman, Office of the Ombudsman,
Legislative Agencies and Offices, explained that Section 1 would
unfreeze the ombudsman's salary and allow step increases as the
position is a high level salary that is not set like a
commissioner or director; rather it is currently frozen at Range
26, Step A. Therefore, the ombudsman, unlike her staff,
currently never receives a pay increase.
2:35:05 PM
REPRESENTATIVE GRUENBERG related his understanding that the
ombudsmen is not under the jurisdiction of the State Officers
Compensation Commission.
2:35:33 PM
MS. LEIBOWITZ replied yes, explaining that since the ombudsman
is in the legislative branch, the executive salary setting has
nothing to do with the ombudsman's office.
2:35:44 PM
REPRESENTATIVE GRUENBERG inquired as to whether the ombudsman
would prefer to be under the State Officers Compensation
Commission.
MS. LEIBOWITZ responded "No," specifying that the ombudsman
would simply like the salary provision to remain similar to what
it is now, but allow step increases. In further response to
Representative Gruenberg, Ms. Leibowitz confirmed the language
of HB 127 is sufficient to allow the step increases.
2:36:14 PM
MS. LEIBOWITZ, returning to her review of HB 127, explained that
Section 2 clarifies an ambiguous issue regarding the ombudsman's
office ability to use the personal services contract provision
that is provided for other legislative agencies under AS
24.10.060(f). She opined that Legislative Affairs Agency
personnel believe the ombudsman's office can [use the personal
services contract]. However, the ombudsman's office would like
this [confirmed] so it is not required to go through the
legislative history of several different versions of Title 24.
2:37:01 PM
REPRESENTATIVE GRUENBERG questioned whether any legislative
contracts have to go through the State Procurement Code or
solely through Legislative Council. In the event HB 127 passes,
what provision would apply: the State Procurement Code,
Legislative Council, or both.
MS. LEIBOWWITZ answered that neither is the case as personal
services contracts basically allow temporary staff on board.
Since it is not a procurement matter, it does not require
Legislative Council. As the ombudsman's office has to budget,
she related her understanding is that the ombudsman can make
this determination, she opined.
2:37:52 PM
MS. LEIBOWITZ deferred to Chair Wes Keller regarding Sections 3-
5 as the ombudsman's office does not support those sections.
2:38:12 PM
CHAIR KELLER stated he was the sponsor of [the amendments] to
those sections in the House State Affairs Standing Committee.
He then noted there is an amendment pending in the House
Judiciary Standing Committee which would increase reporting and
formalize the interaction process between the ombudsman's office
and the legislature. The ombudsman's office is complaint driven
and these sections request information on the complaints the
ombudsman decides not to investigate, he explained.
2:39:01 PM
MS. LIEBOWITZ, returning to her presentation, explained that
Section 6 deals with the ombudsman's powers during an
investigation. Currently, AS 24.55.160(a)(4) provides that
"notwithstanding other provisions of law, have access at all
times to records of every state agency, including confidential
records, except sealed court records, production of which may
only be compelled by subpoena, and except for records of active
criminal investigations and records that could lead to the
identity of confidential police informants." She highlighted
that this is the one reference as to "state agency" in the
Ombudsman Act rather than "agency." Since the ombudsman has
jurisdiction over municipalities and school districts that opt
in, and within the criminal division section over some private
contractors within HB 127 the intention of HB 127 is to delete
"state" so the legislation simply refers to an agency, she
explained.
2:40:30 PM
REPRESENTATIVE GRUENBERG questioned if "state agency" or
"agency" is defined.
MS. LIEBOWITZ specified that "agency" is defined in AS
24.55.330.
REPRESENTATIVE GRUENBERG asked if "state agency" is defined.
MS. LIEBOWITZ responded "No," and explained that the ombudsman
statute references "agency" and that is included in the
definition "state departments" and goes through a long list of
state and municipal entities that can be included.
2:41:21 PM
MS. LEIBOWITZ, continuing her presentation, stated that Section
7 adds an anti-waiver provision specifically targeted to allow
state agencies or other entities to share advice it has received
from the Department of Law should the agency so choose, as the
ombudsman's office does not have mandatory access. In the past,
state agencies have provided communications with the Department
of Law and on occasion it has happened by accident and sometimes
deliberately in order to explain what appeared to be an
otherwise unexplainable action on the agency's part. She
related the ombudsman's understanding that agencies sharing
communications from the Department of Law with the ombudsman's
office places the agency in danger of completely waiving its
attorney-client privilege in a manner that could harm it in
litigation with a private litigant. Therefore, the ombudsman's
office requests that the state agencies be allowed to be candid
without causing them additional damage.
REPRESENTATIVE GRUENBERG pointed out that AS 25.55.330(2) is a
lengthy definition of agency.
2:43:08 PM
MS. LEIBOWITZ remarked that within Section 8, the ombudsman
currently has the privilege not to testify in a judicial
proceeding, which is typical of ombudsman acts created by state
governments. She explained that the ombudsman's privilege is
not express regarding its files and documents acquired [during
an investigation]. Although the aforementioned has not been an
active problem, she related that the ombudsman would like the
privilege made very clear that it does not testify or produce
documents from its office.
REPRESENTATIVE GRUENBERG asked if this applies only to judicial
or administrative proceedings, but not to legislative hearings.
He posed a scenario wherein the ombudsman prepared a report
leading to a legislative hearing under oath with subpoena
powers, and the ombudsman's office could be compelled to testify
as it is a branch of the legislature.
2:44:34 PM
MS. LEIBOWITZ confirmed that the ombudsman has not attempted to
remove itself from legislative subpoena power. Returning to her
presentation, she referred to Section 9, which would allow the
ombudsman to adopt procurement regulations similar to those used
by the remainder of the legislative branch. The language in
Section 9 also makes it clear that when the ombudsman uses
her/his discretion to hire an investigator it does not require a
procurement request for proposals or competitive bids, she
opined.
CHAIR KELLER requested Ms. Leibowitz skip Sections 10-11 as they
are proposed to be deleted.
2:45:45 PM
REPRESENTATIVE GRUENBERG, speaking as a member of the
Legislative Council, asked whether the intention is to prepare
regulations that solely apply to the ombudsman's office. He
opined that Legislative Council would likely benefit from
knowing the thinking of the ombudsman's office regarding whether
regulations should be adopted for other aspects of legislative
procurement.
MS. LEIBOWITZ agreed to share the ombudsman's office regulations
with Legislative Council as it is the only legislative branch
entity that actually does any form of procurement regulations.
Since the ombudsman's office has been given this particular
status, it wants it to work as well as possible, she opined.
2:46:34 PM
MS. LEIBOWITZ moved on to Section 12, which would require a two-
thirds majority to ratify a statute change that would affect
Rules of Evidence 503 regarding attorney-client privilege and a
change to the existing statutory privilege against testifying.
REPRESENTATIVE GRUENBERG commented that this is the
constitutional way to do an indirect court rule amendment.
2:47:43 PM
MS. LEIBOWITZ, continuing her presentation, advised that since
Section 13 deals with the effective date for Sections 10-11 and
there are amendments to delete Sections 10-11, she would not
comment further. Section 14 is similar to Section 12 in that it
deals with indirect court rule amendments and basically provides
that Sections 7-8 will only take effect if it a two-thirds
majority vote is received.
2:48:35 PM
CHAIR KELLER reiterated that the ombudsman's office is part of
the legislature and the legislature not only chooses the
ombudsman but sets the salary, can fire the ombudsman, and sets
the rules. The ombudsman's office has investigative powers and
is complaint driven. Therefore, a citizen of Alaska who feels
he/she has received a raw deal by the administration can lodge a
complaint with the ombudsman's office which has a process with
which to respond, investigate, and determine if the complaint
has merit. He remarked there are important "clean up"
provisions in HB 127.
2:50:08 PM
MS. LEIBOWITZ characterized Chair Keller's summary as
reasonable, although she pointed out that the legislature
originally and deliberately created the ombudsman, established
the salary in statute, and established the procedures of the
office that would be set by the ombudsman. The legislature
appoints the ombudsman and can fire the ombudsman, but very
deliberately made the decision that this entity that responds
directly to citizens would function independently to a large
extent, she opined.
2:50:43 PM
CHAIR KELLER agreed, announced public testimony was closed, and
stated HB 127 is before the committee for amendments and debate.
2:51:08 PM
CHAIR KELLER moved to adopt Amendment 1, labeled 28-LS0088\E.1,
Gardner, 3/11/14.
Page 2, line 11, following "if":
Delete "the chair of"
Page 2, line 12, following "requests an":
Insert "ombudsman"
Page 2, line 18, following "complainant":
Delete "consents to disclosure"
Insert "requests"
REPRESENTATIVE PRUITT objected for purposes of discussion.
2:51:34 PM
JIM POUND, Staff, Representative Wes Keller, Alaska State
Legislature, advised that Sections 3-5 of this legislation are
based upon communications directly between the ombudsman's
office and the legislature via the Administration Regulation
Review Committee, which has the authority to operate and meet
year round and represents both houses of the legislature.
Amendment 1 proposes on page 2, line 11, deleting of the
language, "the chair of" which would then read "if the
Administrative Regulation Review Committee requests an
investigation on behalf of the legislature or". He explained
that the full committee votes and if the committee decides to
investigate it will submit an investigation request. Also, the
ombudsman does have the right to say "no," as it is a "may"
investigate scenario, he opined. In response to a committee
member's concern that the language in HB 127 authorizes the
Administrative Regulation Review Committee the power to
investigate, following the language "requests" the language
"ombudsman" was inserted specifically to state the
Administrative Regulation Review Committee has the authority to
"request" the ombudsman to investigate. With regard to the
concern by the ombudsman's office as to how an individual files
a complaint and whether or not they intend for their name to be
attached to the [complaint], the language "consent to disclose"
on page 2, line 18, was changed to "requests", which requires
the actual complainant to request their name be included if they
so choose.
2:54:29 PM
CHAIR KELLER, reminding the committee that the ombudsman does
not support the inclusion of Sections 3-5, explained that he
proposed Amendment 1 because he determined that the legislature
has an interest in reviewing what the ombudsman's does and the
degree of independence the office holds from the legislature, so
that the legislature can evaluate whether or not the complaints
are valid. He opined it is completely appropriate for the
committee to consider these amendments, and added that future
amendments can be brought forth that will further refine or
remove Sections 3-5, at the discretion of the House Judiciary
Standing Committee.
2:55:38 PM
REPRESENTATIVE GRUENBERG moved that Amendment 1 be broken into
three parts, with one for each section involved in HB 127.
2:56:27 PM
CHAIR KELLER announced that he would withdraw Amendment 1 until
the next meeting and put the changes in and work from a
[committee substitute], although he stated he would rather the
amendment not be split due to time restrictions.
2:56:45 PM
REPRESENTATIVE GRUENBERG withdrew his [motion].
2:57:42 PM
REPRESENTATIVE PRUITT related his understanding that Amendment 1
allows the Administrative Regulation Review Committee authority
to request an investigation, while requests to include the name
of the complainant on the complaint and the reason the ombudsman
does not investigate complaints will only go to the chair of the
Administrative Regulation Review Committee. Therefore, the
initial investigation [request] comes from the whole committee,
while the communications back is only required to go to the
chair.
MR. POUND responded "That is correct."
2:58:58 PM
REPRESENTATIVE PRUITT removed his objection. There being no
further objection, Amendment 1 was adopted.
2:59:18 PM
REPRESENTATIVE PRUITT moved to adopt Amendment 2, labeled 28-
LS0088\E.3, Gardener, 3/12/14.
Page 1, lines 8 - 11:
Delete "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 or grant and
over instrumentalities of the state;"
Page 4, lines 7 - 30:
Delete all material.
Renumber the following bill sections accordingly.
Page 5, lines 15 - 18:
Delete all material.
Renumber the following bill section accordingly.
Page 5, line 22:
Delete "sec. 12(a)"
Insert "sec. 10(a)"
Page 5, line 24:
Delete "sec. 12(b)"
Insert "sec. 10(b)"
CHAIR KELLER objected.
2:59:38 PM
REPRESENTATIVE PRUITT explained stated that Amendment 2 deletes
Sections 10, 11, and 13, with Sections 10-11 being the key
pieces. The ombudsman's office requested in Section 10 that the
legislature clarify whether or not the ombudsman has
jurisdiction over the Alaska Bar Association, which is
essentially "instrumentality," and adds to its current
jurisdiction contracts awarded by state agencies that provide
prison, or halfway house, or similar residential services. He
specified that Amendment 2 deletes those provisions.
REPRESENTATIVE LEDOUX surmised then that under Amendment 2 the
legislature is not only taking out the prison, halfway house,
[or similar residential services on behalf of the Department of
Corrections], HB 127 is also taking out "instrumentality." She
asked if the Alaska Bar Association will clearly not be subject
to the jurisdiction of the ombudsman if Amendment 2 passes
3:01:52 PM
CHAIR KELLER responded "Definitely not," as under AS 08.08.010
the Alaska Bar Association was created by the Alaska State
Legislature and the ombudsman is an investigative arm of the
legislature, and therefore has the authority to investigate the
Alaska Bar Association. However, he added that this is a
provision has a history of contention as essentially the
ombudsman is requesting clarification on whether or not the
Alaska Bar Association is under the investigative jurisdiction
of the ombudsman's office. By passing Amendment 2, the
legislature does not clarify that, and avoids the question for
now.
3:03:03 PM
REPRESENTATIVE LEDOUX questioned as to why the legislature would
not want to clarify [whether or not the Alaska Bar Association
is under the investigative jurisdiction of the ombudsman's
office]. What is the down side of determining whether it is
under the jurisdiction or not, she asked.
REPRESENTATIVE PRUITT explained that he does not want HB 127 to
not pass because of the controversy and potential jurisdiction
issues surrounding this particular piece of it. Therefore, he
proposed Amendment 2.
REPRESENTATIVE LEDOUX surmised then that if the ombudsman
requests clarification, it would be best to place the clarifying
language in an entirely separate bill so HB 127 can make its way
through the legislature.
CHAIR KELLER suggested that is a good question to ask the
ombudsman as this is the ombudsman's housekeeping legislation.
3:06:12 PM
REPRESENTATIVE GRUENBERG stated he previously made a mistake in
that he would prefer not to include Amendment [1] in the
[committee substitute] but rather to divide the [pieces] of
Amendment 1 as he prefers to debate each separate piece. He
said the ombudsman should have jurisdiction to investigate
regarding the Alaska Bar Association. He then requested the
committee not incorporate [Amendment 2] into a committee
substitute, and also revisit Amendment 1 and debate each
separate piece.
3:07:23 PM
CHAIR KELLER offered that Representative Pruitt could withdraw
his motion [to adopt Amendment 2] and noted there was extensive
testimony in the House State Affairs Standing Committee
regarding concerns contractors have had.
3:08:06 PM
CHAIR KELLER withdrew his objection to Amendment 2.
REPRESENTATIVE PRUITT withdrew proposed Amendment 2.
[HB 127 was held over.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| HJR 18 Proposed Amendment A.5.pdf |
HJUD 3/14/2014 1:00:00 PM |
HJR 18 |
| HJR 18 Proposed Amendment A.3.pdf |
HJUD 3/14/2014 1:00:00 PM |
HJR 18 |
| CSHB 127 (STA) Proposed Amendment E.3.pdf |
HJUD 3/14/2014 1:00:00 PM |
HB 127 |