Legislature(2013 - 2014)CAPITOL 120
03/19/2014 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| Overview: Federal Overreach in Alaska. Citizens' Advisory Commission on Federal Areas | |
| HB366 | |
| HB127 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| *+ | HB 373 | TELECONFERENCED | |
| += | HB 127 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 366 | TELECONFERENCED | |
HB 127-OMBUDSMAN
2:26:30 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 was CSHB 127(STA).]
2:26:39 PM
CHAIR KELLER explained that the Ombudsman's Office is in the
legislature, and HB 127 is a bill "about who we are." Within HB
127 were points of tension, "so we, basically, went back and
took out the parts that we feel are controversial." He advised
that the committee substitute is "streamlined" and has a chance
of passing through the House and Senate before the end of this
session. He remarked that during the interim the Ombudsman's
Office will be reviewed on a deeper level.
2:27:52 PM
The committee took a brief at-ease.
REPRESENTATIVE PRUITT said the committee is working on the E
Version from the State Affairs [Standing Committee], and "we did
amend it with Amendment 1 on Monday, and Amendment 2 was
withdrawn."
2:32:22 PM
JIM POUND, Staff, Representative Wes Keller, Alaska State
Legislature, stated that "we are proposing to clean up this
language so that the best parts of the bill can be advanced."
Therefore, the proposed committee substitute deletes Sections 3-
5, on page 2 of the bill, which refers to the association with
the Administrative Regulation Review Committee. It also deletes
Sections 10, 11, and 13.
2:34:42 PM
REPRESENTATIVE PRUITT clarified for the committee that this
substitute is Version D.
REPRESENTATIVE GRUENBERG asked about Version E1, which the
committee had adopted.
REPRESENTATIVE PRUITT explained that because Sections 3-5 are
deleted, Amendment 1 from the prior meeting is eliminated.
2:36:24 PM
The committee took a brief at ease.
2:36:38 PM
REPRESENTATIVE PRUITT moved to adopt CS for HB 127, labeled 28-
LS0088\D, Gardner, 3/19/14 as the working document.
REPRESENTATIVE GRUENBERG objected. He noted that there were
several agency representatives present who have been very
patient and who, he believes, did not want to be included in the
bill. He requested that they be given an opportunity to state
whether or not they have an objection to being excluded from
CSHB 127.
2:37:51 PM
BETH LEIBOWITZ, Assistant Ombudsman, Office of the Ombudsman,
responded that the proposed committee substitute is not
necessarily the Ombudsman's first choice, but it "gets the core
of the bill handled," and so the office has no objections at
this time.
2:38:39 PM
REPRESENTATIVE BOB LYNN questioned if there should be a separate
bill in the future "to put some of this stuff back in."
2:39:04 PM
MS. LEIBOWITZ responded that currently the Ombudsman's Office
does not now have a plan to submit legislation; that would be a
future policy decision on the part of the Ombudsman.
2:39:19 PM
REPRESENTATIVE LYNN requested that the Ombudsman's Office advise
the committee if the Ombudsman intends to request legislation or
if "we should do that, so we can speed this bill along as it
is."
2:39:30 PM
MS. LEIBOWITZ related that assuming the "streamlined" version of
HB 127 [becomes law] the Ombudsman's Office could then discuss
the possibility of having additional legislation.
2:39:56 PM
REPRESENTATIVE GRUENBERG questioned the purpose of deleting the
word "state" in Section 3.
2:40:44 PM
MS. LEIBOWITZ offered that in almost every provision of the
Ombudsman Act, the Ombudsman's authority and jurisdiction is
discussed in terms of what the Ombudsman shall do with an
agency, and then agency is defined. AS 24.55.160(a)(4) is the
only provision referring to a state agency versus simply an
agency, and she noted this is a non-issue as long the Ombudsman
deals only with state departments. The Ombudsman has
jurisdiction over municipalities and school boards if they opt
into the Ombudsman's jurisdiction, "so, having a reference to
'state' agency where everywhere else in the statute refers to
the ombudsman's ability to investigate agencies creates an
inconsistence for us," she explained.
2:41:48 PM
REPRESENTATIVE GRUENBERG stated he supports the inclusion of
Section 3, eliminating the word "state."
2:42:17 PM
KATE BUCKHARDT, Executive Director, Alaska Mental Health Board,
Department of Health & Social Services, stated that the Alaska
Mental Health Board is now in a position to support the proposed
committee substitute for HB 127 because the revised definition
of "agency" is removed. She thanked the committee.
2:43:00 PM
SHERRIE DAIGLE, Deputy Director, Central Office, Division of
Administrative Services, Department of Corrections (DOC), stated
that the Department of Corrections does not object to removing
Sections 10-11 and supports the House Judiciary Standing
Committee's decision 100 percent.
2:44:03 PM
JEFF JESSEE, Chief Executive Officer, Alaska Mental Health Trust
Authority, Department of Revenue, questioned the ability of the
Ombudsman to obtain confidential records that are confidential
under federal law. He noted that when HB 127 was heard in the
House State Affairs Standing Committee he was concerned about a
possible interpretation by the Ombudsman regarding Section 3 [AS
24.55.160(a)(4)], lines 9 and 13, page 2. "Notwithstanding
other provisions of law" may be being interpreted as including
federal law and not just state law, and that needs to be
clarified. He said he reviewed the National Ombudsman
Association's web site and its model legislation for state
ombudsmen around the country, and he noticed a significant
difference between that language, the language in HB 127, and in
the current statute. Within the national model statute this
item would read "notwithstanding other provisions of state law"
and not just "law" in general, he noted. [Alaska's current
statute refers] to records of every state agency including
confidential records, whereas the model statute reads "including
records made confidential by state law," he submitted. He noted
that this statute does not allow the Ombudsman to supersede
HIPPA or 42 CFR, which are the primary federal laws regarding
confidentiality. Moreover, even if the current interpretation
of the Ombudsman is that it cannot get access to federally
protected records, it is important to modify Section [3] to make
that absolutely clear, he offered.
MR. JESSEE added that the Ombudsman's reports are prepared on a
calendar year basis, and he suggested a fiscal year basis. He
offered that the real value of the Ombudsman's Office is its
ability to take individual cases and discern systemic problems
that the legislature may want to address. [The fiscal year]
will allow the legislature, in advance of the legislative
session, to review whether the Ombudsman's Office had identified
issues the legislature may want to take action on, he remarked.
For example, the Ombudsman web site offers the calendar year
2012 report but not calendar year 2013 report, which would be
most relevant to the legislature, he opined. He pointed to the
procurement provision, Section 6, page 3, lines 9-10, and stated
that although the legislature is attempting to mirror the
legislative council's procurement language, "I would suggest
that you think thoughtfully about whether the Ombudsman needs
this authority over construction." It is his understanding that
construction is not part of the Ombudsman's core mission.
2:49:33 PM
LINDA LORD-JENKINS, State of Alaska Ombudsman, explained that
the calendar year basis was adopted in 2000, which is consistent
with the case load management system and it was not her policy
decision. With regard to access to the calendar year 2013
annual report, the report will come out this year, and it has
been her practice to personally deliver the annual report to all
of the legislators early in the legislative session, she stated.
She said personal considerations have kept her from doing that
this year. When she returns to Alaska she will finish the
annual report and deliver it to the legislature, she explained.
She acknowledged that Mr. Jessie is correct as the Ombudsman has
no interest in handling construction matters, but it does have
occasional procurement issues and this is its way of addressing
those matters.
2:53:50 PM
REPRESENTATIVE GRUENBERG suggested working with Ms. Lord-
Jenkins, Mr. Jessee, Mr. Pound, and other interested parties to
"come up with something." He removed his objection.