Legislature(2013 - 2014)CAPITOL 106
03/12/2013 08:00 AM House STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| HB127 | |
| HJR8 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 127 | TELECONFERENCED | |
| *+ | HJR 8 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 127-OMBUDSMAN
8:07:39 AM
CHAIR LYNN announced that the first order of business was 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."
8:07:49 AM
BETH LEIBOWITZ, Assistant Ombudsman, Office of the Ombudsman,
Alaska State Legislature, in response to Chair Lynn, reviewed
the function of the Office of the Ombudsman is to address the
concerns of people who are unhappy with a state agency. The
Office of the Ombudsman determines whether a complaint is
justified and, if so, what can be done to remedy the situation.
She said if the office is overworked, there may be no remedy for
a valid complaint. She said most agencies want to correct
"mistakes of fact." Ms. Leibowitz said the Office of the
Ombudsman hears from: the Office of Children's Services (OCS),
which involves children in state custody; parents, relatives,
and family friends; people dealing with child support cases,
because that agency deals with a lot of money and with children;
the Department of Corrections, where the customer is usually in
jail and unhappy; and every executive branch agency at some
point or another. She stated that the Office of the Ombudsman
can make recommendations, investigate, obtain records, and
report, but cannot force change on anyone; it does not have
enforcement power.
8:10:30 AM
MS. LEIBOWITZ said it has been about 20 years since the Office
of the Ombudsman has had any major amendments to its "enabling
legislation." She related that at the request of the Ombudsman,
she worked with Legislative Legal and Research Services to
produce draft legislation to address the accumulated problems.
MS. LEIBOWITZ ventured that the most important provision in the
proposed legislation is that which would amend the testimonial
privilege of the Office of the Ombudsman. She explained that
currently the Office of the Ombudsman may not testify in court
except to enforce the provisions of its legislation. She said
that is a "perfectly good privilege statute," which has existed
since 1975; however, it does not address production of documents
or administrative hearings. The Office of the Ombudsman would
like to amend the statute to express on matters of quasi-
judicial forum. In response to Chair Lynn, Ms. Leibowitz
explained her plan had been to cover HB 127 by topic.
8:12:16 AM
CHAIR LYNN requested Ms. Leibowitz talk about the bill by
section, instead.
8:12:37 AM
MS. LEIBOWITZ directed attention to Section 1, which deals with
the Alaska Bar Association (ABA). She said the Office of the
Ombudsman would like a yes or no answer as to whether ABA is an
agency over which it should have jurisdiction. She said in
legal analysis, some of the factors used by the Alaska Supreme
Court appear to make the ABA look like an agency over which the
Office of the Ombudsman would have jurisdiction, while other
factors do not. Since the early 1980s, the Office of the
Ombudsman has maintained that the ABA should be in its
jurisdiction, while the ABA has held the opposite view.
CHAIR LYNN asked if both sides are looking for clarity.
MS. LEIBOWITZ said she thinks the ABA would "simply like to have
it be no and absolutely not." She clarified, "We do not have a
position about which way it goes, other than that we want it
settled."
8:14:23 AM
REPRESENTATIVE ISAACSON questioned what the value of having the
ABA under the jurisdiction of the Office of the Ombudsman would
be, since "the aspect of jurisdiction usually requires that you
have the ability to enforce."
8:14:43 AM
MS. LEIBOWITZ offered her understanding that it would be the
same value as for other licensing agencies. She said currently
the Office of the Ombudsman has jurisdiction over the Alaska
State Medical Board and all boards that are handled through
professional licensing. The primary effect of that jurisdiction
is that the Office of the Ombudsman can obtain records and talk
to staff to find out if there is a problem in how a complaint or
licensing is being handled. She said Representative Isaacson is
correct that statute gives the Office of the Ombudsman no
enforcement power; it gives the office access.
REPRESENTATIVE ISAACSON said he has directed people to the
Office of the Ombudsman, and he expressed appreciation for Ms.
Leibowitz' review of what the office does. He drew attention to
a letter from the ABA, [dated March 7, 2013, included in the
committee packet], which talks about the ABA's strict oversight
of its disciplinary responsibilities, as well as mentioning the
issue of confidentiality. He asked Ms. Leibowitz to describe
the difference between the ABA and OCS, in terms of how the
Office of the Ombudsman handles complaints.
MS. LEIBOWITZ said she thinks the closest analogy would be the
Alaska State Medical Board. She said occasionally the Office of
the Ombudsman receives complaints about the process for
licensing discipline and it looks at what the investigator
pulled, whether the licensing was a timely process, and whether
access to speak to the board was granted if desired. If someone
filed a complaint about a doctor, the Office of the Ombudsman
would consider whether the board reviewed the medical files,
whether it did what it should do when reviewing such a case, and
whether the complaint was handled in a timely manner. She said
the ABA is different, because even with jurisdiction over the
ABA's administrative agency, it is likely that disciplinary
issues still would not be within the reach of the Office of the
Ombudsman, because it cannot view judicial decisions; it is not
an appeals court. She said disciplinary decisions, such as
suspending or disbarring an attorney, are reviewed and decided
by justices of the Alaska Supreme Court. She said that part is
a little bit like OCS, because there are decisions in OCS cases
that are decided by judges. The Office of Ombudsman must groom
through those cases and determine which decisions are
administrative and which are cases that have been ruled on by a
judge, thereby making them off limits.
8:18:53 AM
REPRESENTATIVE ISAACSON offered his understanding that Ms.
Leibowitz is saying that it would be no different to have the
ABA under the jurisdiction of the Office of the Ombudsman than
any other agency, because the primary focus of the office is to
ensure that a person's complaint is heard.
MS. LEIBOWITZ said she thinks that is the case; however, she
said she thinks if the legislature wants the Office of the
Ombudsman to deal with ABA matters, an additional section of
statute would be necessary to address Bar Rules 21 and 22.
REPRESENTATIVE ISAACSON asked Ms. Leibowitz if she is
recommending that the proposed legislation be held until that
specific language can be brought to the committee. He said he
does not want to pass a bill out of committee that is not well
thought out or complete.
MS. LEIBOWITZ said that depends on how the committee would
answer the basic jurisdictional question. She explained that if
the answer is no, then there is no need to hold the bill;
Section 1 could be amended. She stated, "I cannot offer you an
ultimate opinion about whether it's a great thing for us to have
jurisdiction, because, as I said, our office just needs to know,
as a policy call: Does the legislature want us to do this or
not?"
8:21:08 AM
CHAIR LYNN expressed his intent is not to move the bill today to
give time to address controversial topics within it. He said,
"I can see where ... if we don't get it straightened out on this
Section 1, we would need further information on it."
REPRESENTATIVE ISAACSON echoed the chair's remark.
8:22:03 AM
MS. LEIBOWITZ proffered that the aforementioned bar rules
provide for the confidentiality of complaint and disciplinary
proceeding within the bar. She said a subsection would need to
be added to indicate that the Office of the Ombudsman is one of
the entities that are allowed to access those records.
8:22:34 AM
LINDA LORD JENKINS, Ombudsman, Office of the Ombudsman, Alaska
State Legislature, confirmed Ms. Leibowitz' testimony that the
Office of the Ombudsman is looking for legislative guidance.
She said she thinks the documents and backup documents produced
are fairly evenhanded, and the office just wants the question
settled. She said she thinks it would be appropriate, if
necessary, to amend the proposed bill to address the questions
raised about amending the bar rules.
8:23:35 AM
REPRESENTATIVE KELLER concurred with the remarks of Chair Lynn
and Representative Isaacson, regarding the committee's need to
see the language of the bar rules in order to make an informed
decision.
MS. LEIBOWITZ said she would be happy to provide that language
via Legislative Legal and Research Services.
8:24:07 AM
STEVE VAN GOOR, Bar Council, Alaska Bar Association, stated that
in 1965, the legislature decided this issue when it created the
bar as an instrumentality of the state, not as an agency under
either the executive, legislative, or judicial branches. He
said there are two levels of review for any complaint. A person
dissatisfied with the decision by the Bar Council can go to a
board liaison and have the decision reviewed. The liaison has
the complete authority to direct the council to conduct further
investigations. Even after the liaison makes a decision on a
complaint, the complainant can take that decision up to the
Alaska Supreme Court. Mr. Van Goor said the ABA is regularly
reviewed by the Division of Legislative Budget and Audit. He
said that as pointed out by Ms. Leibowitz, by court rule the ABA
could not afford access to the Office of the Ombudsman, unless
the attorney waived confidentiality, unless an exception applied
in Bar Rule 21, or the [Alaska] Supreme Court ordered
disclosure. He said there would have to be litigation, because
the bar is essentially "in the middle." He explained that the
bar is ordered by court rule to enforce confidentiality of the
process up to the point of formal charges or public discipline,
and it does not have the authority to uniformly waive
confidentiality.
MR. VAN GOOR said there is a comment in the report given to the
committee that states there have been six matters since December
of 1999, where there was a jurisdictional dispute regarding
whether or not the Office of the Ombudsman could investigate the
ABA. He pointed out that since January of 2000, the ABA has
processed nearly 3,079 complaints. Of those, the six matters
referenced in the report are two-tenths of one percent of the
matters reviewed by the ABA. Mr. Van Goor stated that the ABA
is mindful of its responsibilities to Alaska citizens. He said
it cooperates thoroughly with the legislature in periodic audits
conducted by Legislative Audit, with the executive branch in the
governor's appointment of the three public members of its board
of governors, and with the Alaska Supreme Court, as it
supervises the admission and disciplinary process. Mr. Van Goor
opined that Section 1 of HB 127 is not necessary.
8:27:06 AM
CHAIR LYNN asked Mr. Van Goor if he thinks there is clarity as
to "who can do what" without the proposed legislation.
MR. VAN GOOR said in order to make a jurisdictional decision,
the first decision to be made would have to be whether or not
the ABA is an agency, and since 1965, the ABA has not been
classified as an agency, but rather as an instrumentality of the
state, much the same as the University of Alaska is an
instrumentality of the state. He said, "Quite frankly, we
believe the legislature has decided this issue already ...."
8:28:12 AM
REPRESENTATIVE KELLER said Mr. Van Goor had mentioned
litigation, and he questioned whether making appropriate changes
in Bar Rules 21 and 22 would take away the threat of a law suit.
MR. VAN GOOR responded that Representative Keller is right: The
ABA is bound to follow the rules of procedure adopted by the
Alaska Supreme Court regarding confidentiality of the grievance
process. If those rules are changed, of course the ABA would be
obligated to follow the dictates of those rule changes.
REPRESENTATIVE KELLER asked if, in his previous remarks, Mr. Van
Goor was saying he thinks the University of Alaska and the ABA
are above the basic fact checking conducted by the Office of the
Ombudsman. He asked, "Instrumentality of the state ... is not
above the law, right?"
MR. VAN GOOR answered that Representative Keller is correct. He
clarified the point he was trying to make in his concluding
remarks is that ABA is responsible to all three branches of
government. He posited that the input of the three public
members on the ABA Board of Governors has been extremely
affective in terms of disciplinary and admission matters. He
said the Alaska Supreme Court has the ultimate responsibility
not only in deciding who is and is not admitted to practice law,
but also who remains in practice. He emphasized, "So, by no
means, in calling the Alaska Bar Association an instrumentality,
am I saying that we're above the law and not subject to the
three branches of government." He said the intent of
classifying the ABA as an instrumentality in 1955 was to
underline that the ABA is an important function of state
government, which though not directly under the three branches
of government, is directly accountable to all three branches.
8:32:07 AM
REPRESENTATIVE KELLER said the Office of the Ombudsman answers
to the legislative branch. He stated his belief that the intent
behind the creation of the Office of the Ombudsman was to have
an entity that stands between potential excesses by agencies or
instrumentalities and the people of Alaska, because "there is
nothing else there." He said it is important for the committee
to determine whether there may be excesses by the ABA that
should be brought to light. He then asked Mr. Van Goor to
clarify his previous statistical information regarding
complaints.
MR. VAN GOOR directed attention to a paragraph in the middle of
page 7 of a handout in the committee packet entitled,
"Introduction to Proposed Amendments to the Ombudsman Act (HB
127)," which read as follows:
Out of the seven complaints declined due to lack of
clarity over our jurisdiction, six complaints alleged
that the Bar Association had failed to adequately
investigate a complaint about attorney competence -
these were generally complaints by criminal defendants
regarding their court-appointed counsel. The seventh
complaint involved a client's effort to collect on a
fee arbitration award ordered by the Bar Association.
MR. VAN GOOR explained he was not saying that only two-tenths of
one percent of 3,000 complaints resulted in discipline, but was
saying that the six complaints the Office of the Ombudsman
looked at and determined were a jurisdictional issue has to be
compared to the 3,079 complaints that "we" looked at. He said
if there was an issue about the ABA not doing a proper job with
complaints, it would be reflected in a couple places: First,
there would be a finding by the ombudsman in those six
complaints that there was a problem, but there was not. Second,
there would have been a finding by the Legislative Audit
Division that the ABA had failed in its disciplinary and
investigative function, but there has been no such finding in
any of the audit reports that have been submitted to the
legislature since the early 1980s. Mr. Van Goor said the ABA's
annual report shows that the association is in a serious
disciplinary business and reports annually the number of lawyers
that have been disciplined, suspended, or disbarred. Unlike
other investigatory and licensing agencies, he said, the ABA
publishes notice of discipline, including the type of
discipline, in the four major newspapers in the state. He said
he does not think there is any other entity that does that, and
it is done at significant expense to the association. He said
those records are public, and the ABA is currently working to
get them on line.
REPRESENTATIVE KELLER asked Mr. Van Goor if it could be the case
regarding the six complaints that there were no findings because
there was no access to the records at the time.
MR. VAN GOOR answered Representative Keller is correct; however,
he said the number of complaints that come to the Office of the
Ombudsman pale in comparison with the number of complaints the
ABA processes. He surmised that those who are incarcerated
"probably complain about their lawyers as they complain about
other state agencies, including the Department of Corrections."
He said the ABA has a specific way of investigating and
responding to concerns expressed by inmates who complain that
their representation is ineffective; the Alaska Court System has
a method by which it investigates ineffective assistance of
counsel; and if an inmate disagrees with the ABA's decision not
to investigate or dismiss, that decision can be reviewed by the
board liaison and further go to the Alaska Supreme Court. He
said he would compare the supervision and responsibility the ABA
has for the proper handling of these complaints to any licensing
agency in the state. He said the ABA is strictly regulated and
takes its job seriously.
8:38:55 AM
REPRESENTATIVE HUGHES asked Mr. Van Goor to define agency and
instrumentality, and to explain why he thinks it is appropriate
for the Alaska State Medical Board to be an agency, but not for
the ABA to be an agency.
MR. VAN GOOR pointed out that [the Alaska State Medical Board]
was created in statute as an agency while the ABA was created
"by an instrumentality." He emphasized that the Division of
Professional Licensing comes to the legislature on an annual
basis to receive legislative funds in order to do its job. The
ABA is not funded by public money. He said there was a time the
ABA sought reimbursement for the expenses incurred by public
members on the Board of Governors, but that occurred 20-30 years
ago. Mr. Van Goor said he understands Ms. Leibowitz' argument
that under the Sullivan case that "you ought to look at the
factors that determine whether or not an agency exists." He
said other occupational licensing entities were created as
agencies, and he reiterated that the ABA was not.
REPRESENTATIVE HUGHES asked for further explanation regarding
the difference between an agency and an instrumentality.
MR. VAN GOOR answered that agencies must adhere to requirements
under the Administrative Procedures Act, the Procurement Act,
and other state requirements. The ABA has been specifically
excluded from the Administrative Procedures Act, he said,
primarily because its rule-making function is to suggest rules
to be adopted by the Alaska Supreme Court. The ABA is
responsible for open records and open meetings, but differs from
other state agencies in that it needs the independence to
investigate complaints and make rational, thoughtful decisions
by its disciplinary board that it submits to the Alaska Supreme
Court. He said it is possible that function could be adversely
impacted if there were outside pressures brought to bear on the
association in making its decision. He said the ABA is
represented statewide by members elected from the membership in
the various judicial districts. He reiterated that the ABA has
the important contribution of governor-appointed public members
on the board. He concluded, "So, I think when you look at the
requirements that are imposed at other agencies and the
oversight imposed on those other agencies, the [Alaska] Bar
Association isn't an agency for the purpose of this ...
legislation."
8:44:05 AM
CHAIR LYNN remarked that any legislature can change what
previous legislatures have done.
8:44:32 AM
REPRESENTATIVE HUGHES asked why it is important for the ABA to
remain an independent entity and not for the State Board of
Medicine to do so.
MR. VAN GOOR answered that the practice of law is different from
other occupations licensed by the state, primarily because
lawyers are administered the bar [exam], take the oath of office
to the ABA as officers of the court, and are responsible for the
faithful performance of their duties as lawyers representing
clients, as government lawyers representing agencies, and as
lawyers appearing ultimately to the Alaska Supreme Court. He
said the practice of law is important in maintaining the
independence of citizens, so that decisions are merit-based. He
said it is important to have an independent, functioning
practice of law in any state and that the Alaska Supreme Court
has the ability to properly supervise and regulate.
MR. VAN GOOR clarified that he is not by any means saying that
the ABA is not subject to the three branches of government. He
reiterated his remarks regarding the communication system
between the ABA and the three branches. He ventured that the
role the Office of the Ombudsman would like is to make
suggestions regarding the conduct of a complaint; however, he
suggested that that function is already done on a regular basis
by the disciplinary board in reviewing the operations of the ABA
office and by the supreme court in reviewing how well the ABA is
complying with the rules set up for investigations.
8:47:45 AM
REPRESENTATIVE KELLER remarked that the Office of the Ombudsman
has been very clear that it wants clarity, not expansion.
MR. VAN GOOR responded that it did seem that the Office of the
Ombudsman was "a bit ambivalent about whether this was necessary
or not." He opined that it is not a necessary change. He
stated, "Clearly, if the ombudsman wants a yes or no answer,
respectfully, the position of the bar is that the answer should
be no."
8:49:03 AM
MS. LEIBOWITZ stated that the strongest argument against
ombudsman jurisdiction is the level of [Alaska] Supreme Court
review that is involved with the ABA's decisions, and that is
because the Office of the Ombudsman does not review judicial
decisions. She said that issue is discussed in the appendix of
the sectional analysis included in the committee packet. In
response to the chair, she said the strongest argument for
[ombudsman jurisdiction] is that "at the end of the day, they
still look like a licensing entity." She explained that even
though the ABA is an instrumentality rather than an agency, it
appears to be carrying out the functions of a state regulatory
body.
8:50:35 AM
REPRESENTATIVE KELLER said he thinks there are a number of
issues between "what the [Alaska] Supreme Court may or may not
decide and the issues that may arise," judging by the work done
by the Office of the Ombudsman, which is important to the
people.
MS. LEIBOWITZ responded, "If we didn't think there were some
[issues], we might not think it necessary to raise this
question; though frankly, given the long history of ambiguity on
this point, I think it's about time to give it a yes or no,
regardless." She said she thinks the ABA has more intense
judicial involvement; the Alaska Supreme Court's level of
involvement in ABA decisions is higher than for any other type
of licensing body in the state. Ms. Leibowitz said, "That would
be argument for saying, 'Let the judiciary handle them.'" She
added, "But I don't think that covers absolutely everything they
do."
8:52:43 AM
REPRESENTATIVE ISAACSON asked where the Office of the Ombudsman
comes into play if someone has a complaint against a doctor
versus an attorney.
MS. LEIBOWITZ answered that the Office of the Ombudsman does not
attempt to make a substantive call regarding a doctor's standard
of care; it gets involved with matters of due process. For
example, the office may consider whether the licensee was
"heard" when "coming up for discipline" and about to lose
his/her license or consider whether the board and its staff of
investigators responded in a timely manner and as candidly as
the law allows.
REPRESENTATIVE ISAACSON asked Ms. Leibowitz to further her
explanation by describing how the Office of the Ombudsman's
involvement would differ between legal and medical for "this
type of complaint."
MS. LEIBOWITZ offered her understanding that if the ABA
determines no disciplinary action is necessary after considering
a complaint against an attorney, the complainant has the option
of filing a petition asking the Alaska Supreme Court to review
that case. She said, "In other words, it can go directly to a
judicial decision; not just a deferential one, but one looking
right into the Bar Association decision." She relayed that a
complainant in a medical case could file an Alaska Superior
Court appeal of the decision to decline the complaint; however,
she offered her understanding that the court's review would be
"a good deal more deferential toward the administrative agency."
She added, "It's usually less court involvement."
8:56:06 AM
REPRESENTATIVE ISAACSON said he can appreciate Mr. Van Goor's
testimony "to a certain level," but concurred with Ms. Leibowitz
that there is a question about the licensing aspect that makes
all the entities appear to be on equal footing and therefore
under the jurisdiction of [the Office of the Ombudsman]. He
said he guesses that is why further clarification is needed
regarding Bar Rules 21 and 22.
8:56:50 AM
CHAIR LYNN stated that this may be one of the more controversial
parts of the bill, so he does not mind spending more time on it.
8:57:19 AM
REPRESENTATIVE KREISS-TOMKINS asked if there are other states in
which the state bar association falls under the purview of the
ombudsman's office.
MS. LEIBOWITZ answered there don't seem to be other states,
partly because most of the state ombudsman's offices take the
entire judicial branch out of their jurisdiction. She said
Alaska is unusual in that the Office of the Ombudsman has been
given jurisdiction over administrative agencies, even within the
judicial branch. For example, it has looked at complaints about
the Clerk of Courts Office. She said she thinks at least one of
the states that has a general jurisdiction ombudsman has a
voluntary bar association, which she said looks even less like a
state regulatory agency.
8:58:30 AM
REPRESENTATIVE KELLER asked Ms. Leibowitz how the Office of the
Ombudsman responds to complaints regarding the legislative
branch.
MS. LEIBOWITZ answered that the office does not have
jurisdiction over elected officials. In theory, the office has
jurisdiction over legislative branch agencies, such as
Legislative Affairs; however, in practice the office does not
"see much of that" and is not "terribly enthusiastic about
investigating a sister agency." She deferred to Ms. Lord-
Jenkins for further comment.
8:59:33 AM
MS. LORD-JENKINS said the Office of the Ombudsman has, on
occasion, received complaints about legislative aides, which it
forwards to the employer of the aide. The office has received
complaints about legislative agencies and has made inquiries
about the complaints as appropriate; however, she offered her
understanding that in the time she has been with the Office of
the Ombudsman, since 1989, the office has not issued a formal
report or even gone beyond a few inquiry calls.
REPRESENTATIVE KELLER said that really illustrates the value of
the Office of the Ombudsman.
9:00:53 AM
REPRESENTATIVE HUGHES asked how having oversight of the ABA
would impact the workload of the Office of the Ombudsman.
9:01:12 AM
MS. LEIBOWITZ surmised that the number of ABA cases seen by the
Office of the Ombudsman would increase, but not by much, in part
because the ABA would be "running" its process, and some of its
decisions would be reviewed by the supreme court rather than by
the Office of the Ombudsman. In response to a follow-up
question, she estimated that over the last decade, the Office of
the Ombudsman has seen no more than an average of one or two ABA
cases a year. She said there have been cases the office was
unable to go forward with, and thus was unable to resolve one
way or the other. She said if the legislature appointed the
Office of the Ombudsman as overseer of ABA cases, she does not
know the ultimate impact, because that would be a new area of
focus. Notwithstanding that, she estimated the office initially
would see approximately five or six cases a year, at most, and
she said she does not know how much that case load would
increase after that.
9:03:30 AM
REPRESENTATIVE KREISS-TOMKINS ventured that the argument against
placing the ABA within the jurisdiction of the Office of the
Ombudsman would be that it would be redundant; the judicial
branch already supervises the ABA. He asked in what cases
complaints against the ABA would not be adequately reviewed by
the court system.
MS. LEIBOWITZ answered, "I think it's some of the same problems
that ... we see with other state agencies, where it's timeliness
of response; it's how clear the response was. ... Those tend to
be the big ones we see with all state agencies of complaints
that aren't really susceptible to judicial review. It's, 'How
is this being handled while it's getting to the end point?'"
REPRESENTATIVE KREISS-TOMKINS asked Ms. Leibowitz to explain
what she means by "timeliness of response." He asked if she
means that the Supreme Court has a lengthy review process for
complaints against the ABA.
MS. LEIBOWITZ responded as follows:
Actually, the first part of that is that before it
ever would go to the court, the Bar Association is
reviewing it, and I think most agencies at some point,
whether it's justified or not, we get a complaint
saying, "I ... asked the agency for such and such and
it fell into a black hole." You know, ... sometimes
those are really not justified and sometimes they are;
it's basically a responsiveness issue. The other part
of that, ... especially for a complaint that the Bar
Association turns down: the [Alaska] Supreme Court is
only going to review that if the complainant then
files a request for the court to review it.
9:05:41 AM
MS. LEIBOWITZ, in response to Representative Hughes, emphasized
that the Office of the Ombudsman is not a replacement for the
ABA's process. She explained that if a person calls the Office
of the Ombudsman with a complaint about an attorney, the office
first would advise him/her to get a complaint packet from the
ABA, and from there the Office of the Ombudsman can determine
whether the ABA is managing its process well.
REPRESENTATIVE HUGHES explained she is trying to determine how
the decision the committee makes regarding HB 127 will affect
the public.
MS. LEIBOWITZ said she does not think it is possible to know the
answer to that concern yet, because the Office of the Ombudsman
has never actually completed an investigation of the ABA
process. She said to some extent it will not be a complete
resolution, because in a disciplinary decision against an
attorney, "the justice's jurisdiction over that would tend to
indicate that we would not be there." She concluded, "So, to
some extent we're not going to be able to address some of the
issues that we might address with other state agencies."
9:08:21 AM
CHAIR LYNN requested that Ms. Leibowitz continue with the
sectional analysis, for the time being skipping Sections 12 and
13, which he described as needing more time for discussion.
9:09:11 AM
MS. LEIBOWITZ directed attention to Section 2. She said
currently the ombudsman's salary is set at a Step A, Range 26,
and under Section 2 of HB 127, the Step A would be removed, thus
allowing the ombudsman to occasionally receive a step increase
within a Range 26.
CHAIR LYNN asked how much of an increase that would provide.
MS. LEIBOWITZ answered, "In a year where the ombudsman received
a step increase, budget permitting, it would be about $3,000-
$4,000 as a salary increase." In response to a follow-up
question, she said she would find out how much the ombudsman
currently makes and let the committee know later. She related
that in 2012, the legislature revised compensation for the
salary of the Victims' Rights Advocate from a Step A, Range 26,
to allow that position to receive step increases.
MS. LEIBOWITZ said the legislature has a provision that allows
the hiring of individuals under a personal services contract,
which is done primarily to allow legislative offices to hire
retirees to work on contract. The provision states that it is
applicable to the entire legislative branch; however, the
ombudsman's statute, which predates the personal services
contract provision, states that employment policies under [AS]
24.10 do not apply to the Office of the Ombudsman. Ms.
Leibowitz explained that Section 3 would clarify that the
personal services contract provision applies to the ombudsman.
9:12:13 AM
MS. LEIBOWITZ relayed that under current statute, the opinions
and recommendations provided to an agency by the Office of the
Ombudsman are confidential; however, correspondence between the
Office of the Ombudsman and the state agency personnel prior to
making those opinions and recommendations is not guaranteed
confidentiality. Ms. Leibowitz said Section 4 would ensure the
confidentiality of that correspondence.
REPRESENTATIVE ISAACSON asked Ms. Leibowitz to confirm that the
Office of the Ombudsman is not requesting to conceal
information, but rather to have transparency after the opinion
or recommendation is made.
MS. LEIBOWITZ responded, "Currently the only part of the
ombudsman's report that is releasable is when the ombudsman
publishes after investigation, and the ombudsman can choose to
make the investigation report public. ... These communications
would remain nonpublic even afterwards," for example, if the
ombudsman discovered a complaint had no merit and did not
publish on it.
REPRESENTATIVE ISAACSON said that disturbs him, "because we want
to be able to know that all issues that are settled are settled
properly." He mentioned the Freedom of Information Act (FOIA),
and asked if there is a current problem where people are asking
for the e-mails to be made public before the Office of the
Ombudsman is able to release a report or if [requesting Section
4] is a preventative measure.
MS. LEIBOWITZ responded there was one case last year when an
individual asked the Office of the Ombudsman for a copy of a
letter to an agency and the office refused; however, she said it
is not clear whether the agency would have to give the
information to the person if asked to do so. Ms. Leibowitz
commented on the irony of information being kept confidential by
the Office of the Ombudsman while perhaps being shared by the
agency involved.
9:15:45 AM
MS. LEIBOWITZ said Section 5 also addresses the issue of
confidentiality. She explained that under current statute, the
Office of the Ombudsman does not have access to attorney/client
privilege material or attorney work product, and it is not
contesting that fact. However, executive branch personnel
sometimes provides the ombudsman with opinions given by the
Office of the Attorney General, and Section 5 would offer an
anti-waiver provision to "protect their attorney/client
privilege from ... being considered waived if they offered the
information to our office to explain what they're doing."
MS. LEIBOWITZ stated that Sections 6-9 would provide a statutory
mechanism for the Office of the Ombudsman to issue an informal
report. She explained that under original statute, the
ombudsman personally "shall report," and she said that report
made by the ombudsman is formalized and cumbersome; the office
issues approximately one dozen of them a year. Last year, she
relayed, the Office of the Ombudsman received 1,000 complaints,
many of which were unsupported or declined as "premature," but
about 200-300 of which received a substantial amount of
investigative work. She said some of those complaints were
discontinued, while some resulted in the office suggesting to
the agency involved that there was something that needed to be
fixed; it did not go to a formal report. She stated, "We would
like it to be clear in statute that we have a mechanism for ...
investigating and resolving a complaint short of that formal
report at the end."
9:18:48 AM
MS. LEIBOWITZ said Section 10 relates to testimonial privilege.
She explained that the Office of the Ombudsman currently has the
privilege to not testify in court except as necessary to
"enforce the provision of this chapter." She said that dates
from the establishment of the Office of the Ombudsman in 1975
and is designed to keep the ombudsman out of collateral
litigation. She said, "We would like that testimonial privilege
made more express to make it clear that it applies to
administrative hearings as well as to court [proceedings], and
to make it very clear that we do not produce records any more
than we go and testify verbally."
9:19:42 AM
REPRESENTATIVE ISAACSON asked if this has been a problem.
MS. LEIBOWITZ answered not to date. She explained that the
Office of Victims' Rights statute, which was modeled, in part,
on the Ombudsman Act, has a lot of identical language, except
that the testimonial privilege section enacted for the Office of
Victims' Rights in 2001 is more express and much clearer. She
opined that it is time to upgrade the language for the Office of
the Ombudsman.
9:20:20 AM
MS. LEIBOWITZ said AS 24.55.275 is the procurement statute, and
it has a couple problems: first, it refers only to contracts
for services, and second, it basically states that the office
shall have regulations consistent with AS 36.30, which refers
procurement for legislative branch agencies back to Legislative
Counsel and the procurement policies made by the legislature.
She said, "We'd like that amended to make it clear that our
procurement applies to all types of procurement, not simply
contracts to services, and we would like it tied to the
legislative procurement policies."
9:21:37 AM
CHAIR LYNN reminded the committee of his intent to bypass
Sections 12 and 13, and he asked committee members to review
those sections carefully before the next bill hearing.
9:21:51 AM
MS. LEIBOWITZ explained that Sections 5 and 10 are indirect
amendments of the court rules; Sections 14 and 16 state that the
changes to the court rules would not be effective without a two-
thirds majority [vote of each house of the legislature].
MS. LEIBOWITZ noted that Section 15 relates to Section 12 and
13.
CHAIR LYNN asked the committee to also consider Section 13
before the next bill hearing.
9:23:12 AM
GEORGE MEYER stated that he finds it interesting that the
previous testifier for the ABA "classifies himself as an
instrument of the state." He questioned if that means school
teachers, union halls, and preachers fall into the same
category.
CHAIR LYNN asked if anyone had a response to that query.
9:24:00 AM
MS. LEIBOWITZ proffered that a union is a private entity, and
she said the Office of the Ombudsman does not deal with churches
or have jurisdiction over school districts, unless the school
district has signed up to work with the Office of the Ombudsman.
In response to Mr. Meyer, she said, "If I had a clear answer for
what 'instrumentality of the state' meant, then I think that we
might not be here today."
9:24:51 AM
REPRESENTATIVE KELLER said he looked up "instrumentality" in the
dictionary and found that one of the synonyms for the word is
"agency." He indicated that the committee is considering the
term as it relates to the bill.
9:25:23 AM
MR. MEYER emphasized the importance of the legislature
conducting the state's business with integrity and doing things
in "the proper way."
9:25:58 AM
MS. LEIBOWITZ thanked the committee for the opportunity to speak
on HB 127.
9:26:12 AM
CHAIR LYNN [announced that HB 127 was held over].
9:26:41 AM
The committee took a brief at-ease at 9:26 a.m.