Legislature(2013 - 2014)CAPITOL 120

03/19/2014 01:00 PM House JUDICIARY


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01:11:17 PM Start
01:11:27 PM Overview: Federal Overreach in Alaska. Citizens' Advisory Commission on Federal Areas
02:22:35 PM HB366
02:26:30 PM HB127
02:53:58 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Presentation: "2013 Federal Overreach Summit TELECONFERENCED
Recommendations" by Citizens Advisory Commission
on Federal Areas
*+ HB 373 24/7 TESTING; IGNITION INTERLOCKS TELECONFERENCED
<Bill Hearing Canceled>
+= HB 127 OMBUDSMAN TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
+= HB 366 INVOLUNTARY COMMITMENT TELECONFERENCED
Heard & Held
                        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.                                                                            

Document Name Date/Time Subjects
CACFA Federal Overreach Presentation.pdf HJUD 3/19/2014 1:00:00 PM
CACFA Federal Overreach Support Document~Dept. Law Endanger Species Act 1 yr Summary.pdf HJUD 3/19/2014 1:00:00 PM
CACFA Federal Overreach Support Document~Hijacked Endangered Species.pdf HJUD 3/19/2014 1:00:00 PM
HB 373 Sponsor Statement.pdf HJUD 3/19/2014 1:00:00 PM
HB 373
HB 373 Sectional Analysis.pdf HJUD 3/19/2014 1:00:00 PM
HB 373
HB 373 ver. A.pdf HJUD 3/19/2014 1:00:00 PM
HB 373
HB 373 Fiscal Note~Court System.pdf HJUD 3/19/2014 1:00:00 PM
HB 373
HB 373 Fiscal Note~DHSS.pdf HJUD 3/19/2014 1:00:00 PM
HB 373
HB 373 Fiscal Note~DOA (DMV).pdf HJUD 3/19/2014 1:00:00 PM
HB 373
HB 373 Fiscal Note~DOC.pdf HJUD 3/19/2014 1:00:00 PM
HB 373
HB 373 Fiscal Note~DOL.pdf HJUD 3/19/2014 1:00:00 PM
HB 373
HB 373 Fiscal Note~PDA.pdf HJUD 3/19/2014 1:00:00 PM
HB 373
HB 373 Support Document~24x7 Participant Form.pdf HJUD 3/19/2014 1:00:00 PM
HB 373
HB 373 Support Document~24x7 Sobriety Overview.pdf HJUD 3/19/2014 1:00:00 PM
HB 373
HB 373 Support Document~American Journal of Public Health South Dakota 24x7 Study.pdf HJUD 3/19/2014 1:00:00 PM
HB 373
HB 373 Support Document~South Dakota 24-7 Sobriety Program Statistics.pdf HJUD 3/19/2014 1:00:00 PM
HB 373
CSHB 127 (JUD) ver. D.pdf HJUD 3/19/2014 1:00:00 PM
HB 127