Legislature(2013 - 2014)CAPITOL 106
02/20/2014 08:00 AM House STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| HB262 | |
| HB217 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 262 | TELECONFERENCED | |
| *+ | HB 217 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 262-PROCUREMENT EXEMPTION: PDA, OPA
8:06:59 AM
CHAIR LYNN announced the first order of business was HOUSE BILL
NO. 262, "An Act exempting the Public Defender Agency and the
office of public advocacy from certain provisions of the State
Procurement Code; and providing for an effective date."
8:07:10 AM
REPRESENTATIVE LINDSEY HOLMES, Alaska State Legislature, as
prime sponsor, presented HB 262. She explained that the
proposed legislation would clarify how the state's procurement
code applies to the Office of Public Advocacy (OPA) and the
Public Defender Agency (PDA). She said those are the state
agencies that act as defense attorneys representing indigent
clients in criminal cases. They are paid by the state through
the Department of Administration. She said in most cases, "the
other side" is the Department of Law (DOL). She said there is
question as to when those agencies are subject to the
procurement code and when they are not. Under Section 1, of HB
262, neither OPA nor PDA would have to obtain permission from
the attorney general to hire expert witnesses or counsel, which
would put both agencies on a level playing field with DOL.
8:09:56 AM
MIKE BARNHILL, Deputy Commissioner, Department of Administration
(DOA), said prior to his current three years as deputy
commissioner, he was an assistant attorney general (AG) with the
Department of Law. While there, he said, he used the
procurement code frequently to retain the services of outside
counsel. He stated that in the field of law, one attorney does
not equal another attorney. He explained that the field is
highly specialized; one cannot get a defense attorney as
representation on a tax case, for example. Therefore, he
emphasized the importance of tailoring the procurement to apply
in highly specialized situations.
MR. BARNHILL said Section 2, of HB 262, is the limited
competition provision. He said normally, for all state
agencies, permission must be obtained from the chief procurement
officer in the Division of General Services, within the
Department of Law. For legal service, one must go to the AG to
get permission to use the limited competition statute. He said
that is very effective for retaining specialized counsel. He
said under HB 262, OPA and PDA could go to the AG to get the
permission for "limited competition procurement." Deputy
Commissioner Barnhill said he used the limited competition
procurement many times. He said it was very effective; he got
great counsel to represent the state. He continued as follows:
The most significant one was the counsel we retained
in the lawsuit against Mercer for actuarial
negligence. And I can tell you with a high degree of
certainty that the outcome of that case was entirely
dependent on the counsel we selected. The ability to
get the right counsel to fit the case you have is
entirely consistent with our rules of professional
responsibility. If we just had a generic procurement
code that required us to go the lowest bidder without
consideration of specialization, we would routinely be
hiring the wrong counsel for the wrong case.
8:12:26 AM
MR. BARNHILL said under HB 262, OPA and PDA would be in the
exact position as DOL with respect to retention of counsel,
professional services under the limited competition statute, and
the retention of expert witnesses. He explained that under the
existing procurement code, DOL is exempt when it comes to hiring
expert witnesses. He emphasized that "if the field of law is
specialized, the field of professional witnesses is extremely
specialized." For example, he said some witnesses are experts
on tire treads, while others are blood splatter experts. He
said he believes that is why DOL has had that exemption. He
suggested that when AS 36.30 was enacted, it was probably an
oversight that the criminal defense side of the equation was
overlooked. The proposed legislation would restore that by
exempting both OPA and PDA so that those agencies can get
whatever expert they need without having to go through the
procurement code. He noted that the bill has a zero fiscal
note.
8:14:02 AM
MR. BARNHILL, in response to Chair Lynn, said in order to get
representation by either OPA or PDA at the public's expense, a
person would have to be indigent. If that indigent person
needed an expert witness in order to determine the facts in a
case, he would then be provided with one.
8:15:22 AM
MR. BARNHILL, in response to a question from Representative
Keller, offered his understanding that the point at which
someone would be considered indigent is decided by the courts.
REPRESENTATIVE KELLER said it is not clear how changing the
authority for the contracting addresses some of the concerns of
the audit and how it relates to the fiscal note.
8:16:53 AM
MR. BARNHILL said the audit found that OPA was not complying
with the procurement code. Further, the audit found that there
was failure in contract oversight. He said the latter is not
addressed in HB 262, and DOA filed a response with the Division
of Legislative Audit and could provide that response to the
committee. He said DOA's oversight is broad; it includes the
Division of Motor Vehicles (DMV), OPA, PDA, and the core
administrative entities. Within this, he said, DOA has the
Division of Administrative Services, which provides services
including contract oversight to a number of its divisions. In
this particular context, DOA's Division of Administrative
Services was not providing contract management oversight, and
the recommendation of the Division of Legislative Audit is that
it do so. He related that DOA has begun to provide more
oversight, but it is a large task to do so for every division.
He stated that DOA believes it is important to effectively
monitor and manage contracts "across the departments," but it
will have to observe the oversight to determine its
effectiveness.
8:19:04 AM
MR. BARNHILL, with respect to procurement, stated his belief
that OPA and PDA did not interpret the procurement code in the
same way that the Division of Legislative Audit did. He
explained that [OPA and PDA] took the position that the AG could
not control how they procured legal counsel or how they would
procure expert witnesses. He said, "I mean, as a matter of
professional responsibility, as the sponsor indicated, if you're
adverse to a party, you would never dream of going to the
adverse side to ask for permission to retain counsel." Further,
he stated that retaining an expert witness who is not the best
for a particular case could have implications with respect to
"your duty of zealous advocacy." He said, "I think it just
simply didn't occur to them that the procurement code wouldn't
apply in this way." He concluded, "So, what we're doing is
we're changing the law so we have a common understanding of how
the procurement code applies with respect to outside counsel,
with respect to conflict counsel, with respect to expert
witnesses."
8:20:31 AM
REPRESENTATIVE KELLER said it makes sense, because DOA handles
the defense and the prosecutors are in DOL; [the state] must do
everything it can to avoid a conflict of interest. He indicated
that legislators realize that "we end up paying for the defense
and the prosecution," as well as the judge and court room. He
emphasized the importance of not making changes without
following to proper process.
MR. BARNHILL noted that Rick Allen, the director of OPA, had
instituted an initiative to help control costs better within the
office, particularly when it comes to retention of outside
counsel; he has had regulations drafted that provide case caps
by type of case, with legitimate escape clauses. He said he
thinks it is an excellent approach.
8:22:31 AM
REPRESENTATIVE HUGHES asked if Mr. Allen might have anything to
add to the subject of cost control.
8:23:18 AM
RICK ALLEN, Director, Anchorage Office, Office of Public
Advocacy (OPA), stated that the implementation of the
aforementioned regulations has been a "game changer" for OPA.
He said when he became director of OPA he found there were no
controls in place on how much contractors were being paid on
cases, which posed a series of problems, one of the major ones
being that without parameters on contractors, it is impossible
for anyone serving as director of OPA to maintain budgetary
predictability. He said the caps have been in place for about a
year now, which has been a big change for the contractors;
however, he said he thinks everyone has "settled in" and
realizes "this is the way we're going to do business now," and
it has made a big difference for OPA's bottom line. In response
to a follow-up question from Representative Hughes, he said he
thinks the quality of the expert witnesses and legal counsel is
adequate with the caps in place. He echoed Mr. Barnhill's
notation that there is always a release valve on the caps, which
makes it possible to adjust the money spent on a case. He
offered an explanation of the adjustment process.
8:25:38 AM
MR. ALLEN, in response to Chair Lynn, said when the state pays
for a person's services, then that person does not get to choose
who his/her expert witness or lawyer is, although OPA will take
the input of its clients into consideration. Most of the
decisions about how the criminal case proceeds are made by the
attorney.
CHAIR LYNN surmised that a poor person "is not going to get the
dream team."
MR. ALLEN responded that he has practiced in other parts of the
United States before coming back home to Alaska, and he
emphasized he is "very, very comfortable with the standard we
are able to provide." He expressed pride in the work that OPA's
staff and contractors do. He ventured that Mr. Steiner from the
Public Defender Agency would say the same. He stated that some
of the finest criminal defense attorneys and appellate writers
work for OPA or PDA; therefore, an indigent person will be
assigned a quality attorney and the resources needed to properly
defend the case.
8:28:13 AM
QUINLAN STEINER, Director, Central Office, Public Defender
Agency (PDA), opined that Deputy Commissioner Barnhill had
articulated the concerns address through the proposed HB 262.
8:28:51 AM
CHAIR LYNN, after ascertaining that there was no one else who
wished to testify, closed public testimony on HB 262.
8:29:04 AM
REPRESENTATIVE GATTIS said HB 262 seems like a simple bill that
would clean-up "what we already do." She said experts in their
field representing those who cannot afford representation seems
to make sense, and "it directs it." She stated her support of
HB 262.
8:29:35 AM
REPRESENTATIVE KELLER pointed out that the House State Affairs
Standing Committee is the only committee of referral for HB 262,
which he opined is appropriate, because this is an issue about
contract management and administration.
8:30:17 AM
REPRESENTATIVE KELLER moved to report HB 262 out of committee
with individual recommendations and the attached zero fiscal
note. There being no objection, HB 262 was reported out of the
House State Affairs Standing Committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| 01 HB 262 v.A.pdf |
HSTA 2/20/2014 8:00:00 AM |
HB 262 |
| 02 HB 262 Sponsor Statement.pdf |
HSTA 2/20/2014 8:00:00 AM |
HB 262 |
| 03 HB 262 Sectional Analysis.pdf |
HSTA 2/20/2014 8:00:00 AM |
HB 262 |
| 04HB 262 OPA Audit.pdf |
HSTA 2/20/2014 8:00:00 AM |
HB 262 |
| 05 HB262 Fiscal Note DOA.pdf |
HSTA 2/20/2014 8:00:00 AM |
HB 262 |
| 01 HB0217A.pdf |
HSTA 2/20/2014 8:00:00 AM |
HB 217 |
| 02 HB 217 Sponsor Statement.pdf |
HSTA 2/20/2014 8:00:00 AM |
HB 217 |
| 03 HB 217 Sectional Summary.pdf |
HSTA 2/20/2014 8:00:00 AM |
HB 217 |
| 04 HB 217 Fiscal Note DOA.pdf |
HSTA 2/20/2014 8:00:00 AM |
HB 217 |