Legislature(2013 - 2014)CAPITOL 106
03/26/2013 08:00 AM House STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| HB127 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 127 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 127-OMBUDSMAN
8:09:10 AM
CHAIR LYNN announced that the only 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."
8:10:00 AM
BETH LEIBOWITZ, Assistant Ombudsman, Office of the Ombudsman,
Alaska State Legislature, reviewed the intent of HB 127 [as she
had previously presented it to the committee during the 3/12/13
hearing]. She said the proposed bill would add three sections
to address confidentiality: to modernize testimonial privilege;
to remove some communication with executive branch agencies from
the public record, so that the trail of confidential
investigative reports is not "hanging out there"; and to add an
anti-waiver provision to protect agencies that want to share
attorney/client privilege material with the ombudsman.
Regarding the latter, she said the Office of the Ombudsman
cannot compel that information, but there are some executive
branch agencies that want to explain their actions to the
ombudsman. Ms. Leibowitz said the proposed bill also asks for a
change in the ombudsman's procurement statute to bring it into
accord with the Legislative Council's procurement policies.
Further, it asks for a mechanism to provide an informal
investigative report in order to have a clear, statutory process
to "deal with things that do not require a full, 20-year, 50-
page investigative report, but do require some level of
investigative attention." Under HB 127, the ombudsman's salary
would be unfrozen from step A, range 26. Further, jurisdiction
would be extended over certain types of contractors and to
certain types of grantees, because it is clear that including
contractors but ignoring grantees "will not actually accomplish
the goals very effectively." She offered her understanding that
the committee may have some alternate language to that effect.
8:12:57 AM
CHAIR LYNN asked Ms. Leibowitz to address Sections 12 and 13,
which he had asked her not to cover when she offered the
sectional analysis at the last hearing, [because he had said he
thought Sections 12 and 13 would need more time allotted for
discussion].
MS. LEIBOWITZ stated that Section 12 would amend the definition
of "agency" to include those that are not state government
agencies, but are acting on behalf of state agencies, such as
contractors providing custodial services for the Department of
Corrections (DOC). She said one such contractor is Hudson
Correctional Center in Colorado, which is being phased out, but
still holds almost 800 inmates [from Alaska] as of last week.
She also mentioned "quite a few" halfway houses across Alaska
run by either for-profit or nonprofit private entities. She
said people in halfway houses are still inmates, but are being
housed "off-campus," and the Office of the Ombudsman would still
like to have jurisdiction over those facilities.
8:14:18 AM
CHAIR LYNN offered his understanding that when the Office of the
Ombudsman receives a complaint from an inmate, it must do the
investigation through the Department of Corrections, rather than
going to the campus outside the state.
MS. LEIBOWITZ answered that is correct. She said that means the
Office of the Ombudsman would refer the complainant to DOC and
then inquire of DOC what it did with the issue; however, the
Office of the Ombudsman cannot "get directly to the problem."
CHAIR LYNN asked, "Would you intend to notify the Department of
Corrections before you go to the off-site campus?"
MS. LEIBOWITZ answered, "Not necessarily." She explained that
the Office of the Ombudsman expects quite a few of the
complaints will not be of great note and may be resolved with a
"three-minute phone call." She said the office intends to
create regulations to address the change in procedures that
would be brought about if allowed to have jurisdiction over
contractors. She said she expects the Office of the Ombudsman
will be providing DOC with an update every couple of months or
at least every year, outlining the type and amount of complaints
it received and which contractors were involved. For anything
of a more serious nature, the Office of the Ombudsman would give
DOC a confidential copy of [its findings] before they are
published.
CHAIR LYNN suggested that telling DOC about circumstances after
the fact might take the department "out of the loop."
MS. LEIBOWITZ deferred to DOC for its response. Notwithstanding
that, she said the Office of the Ombudsman's primary mechanism
for dealing with complaints for DOC is to refer inmates into
DOC's grievance process, and the office does not expect that to
be much different for those in halfway houses. She said the
Office of the Ombudsman expects the vast majority of complaints
to be "premature," which is when the complainant has not tried
to work the issue out with the system, and she said, "We expect
to still be referring them to that system."
8:16:58 AM
REPRESENTATIVE KELLER asked how often problems have resulted as
a result of the Office of the Ombudsman not having this
provision in place.
MS. LEIBOWITZ answered that the office has encountered some
problems, but added, "There are cases that we probably didn't
run smack into the problem because we declined the issue as non-
jurisdictional at the time." She said the Office of the
Ombudsman has a handful of cases from the Hudson facility
relating to allegations of a lack of medical care. She said the
allegations ultimately proved to be unsupported, but it took the
Office of the Ombudsman a long time to find that out, because
rather than going directly to Hudson to ask the facility for its
medical records, the office was going through DOC. She said the
"shuffle" took a lot longer than it probably should have.
8:18:25 AM
REPRESENTATIVE KREISS-TOMKINS asked for a comparison of the
total number of complaints the Office of the Ombudsman has had
to decline because of not having jurisdiction in the following:
residential treatment programs with the Department of Health &
Social Services (DHSS), residential services in halfway houses,
and residential services in prisons under contract with DOC.
MS. LEIBOWITZ answered that over the last decade, the Office of
the Ombudsman has had 88 complaints involving either the Red
Rock facility in Arizona or the aforementioned Hudson facility;
and 147 complaints involving halfway houses. She said, "This is
a small percentage ... relative to the total number of
complaints we get from Department of Corrections." She said the
Office of the Ombudsman expects these complaints will continue
to be received. She said some of them were opened and
investigated to the best of the ability of the Office of the
Ombudsman, within present constraints. Many of the complaints
were declined as non-jurisdictional, she said, especially the
halfway house complaints. She said she does not have a
breakdown of "how many were at each," but said most of them
would have been declined with a referral to contact DOC.
8:20:04 AM
REPRESENTATIVE GATTIS asked what kind of complaints the Office
of the Ombudsman typically turns away.
MS. LEIBOWITZ clarified that the Office of the Ombudsman did its
best to address medical complaints that sounded urgent. The
complaints from inmates at the Hudson facility are similar to
the ones received from the instate facilities, and they range
from inmates complaining that their grievances are not being
addressed to inmates complaining that "this is not a nice place
to be." To the latter complaint, Ms. Leibowitz stated, "We
can't really fix that part, you know; we probably shouldn't."
She said the halfway house complaints tend to be similar. She
said she has a couple examples. In response to Representative
Gattis, she offered more examples of complaints received, which
relate to: food; the lack of diet appropriate to medical
condition; and the disciplinary process, which already has a set
appeal route. She deferred to the ombudsman for further
comment.
8:22:11 AM
LINDA LORD-JENKINS, Ombudsman, Office of the Ombudsman, in
response to Representative Gattis' question, offered further
examples of types of complaints: DOC's ban on certain
visitation; unfair disciplinary actions; classification issues;
and any number of issues that inmates want to complain about.
She echoed Ms. Leibowitz' remarks about getting more involved in
serious medical issues, where referring someone to a grievance
or appeal process would not be appropriate. She offered
examples. She said there is a liability to the state if the
inmate is not treated properly by the contract facility.
8:25:03 AM
REPRESENTATIVE KELLER opined that because contractors with the
state are acting on behalf of the state, with state dollars
authorized by the legislature, the legislature has a
responsibility there. He asked Ms. Lord-Jenkins if she has
found agencies have a clear description of what the violations
are.
8:26:34 AM
MS. LORD-JENKINS responded that the Office of the Ombudsman has
reviewed the facilities' contracts; however, because it has no
statutory jurisdiction to look at allegation, it has no way of
knowing how the contracts are being implemented. She said there
have been medical complaints, which raised concern, and about
which the Office of the Ombudsman alerted DOC, but the office
has not done a contract audit in those instances.
REPRESENTATIVE KELLER, using an example of inmates who need to
have certain medication to survive, expressed confidence that
DOC has strict guidelines in place regarding drugs and
prescriptions. He asked Ms. Lord-Jenkins if she is saying she
wants the Office of the Ombudsman to have the authority to "go
in and look at Hudson and Red Rock to see exactly what's
happening," in order to evaluate whether or not DOC's standards
are being fulfilled.
MS. LORD-JENKINS responded yes.
CHAIR LYNN asked, "Would the Department of Corrections know
about this before you went in?"
MS. LORD-JENKINS answered that traditionally when the Office of
the Ombudsman makes contact with any agency, based on a
complaint, part of its investigative methodology is to contact
"the agency employee who is closest to the subject of the
complaint and take it up the line from there." She said the
Office of the Ombudsman has found that if it goes to central
office right away, it often will hear "a sanitized version of
what should happen, but not always what did happen." She said
the reason for the conflict often is a mistaken understanding of
policy or a communications breakdown between "the citizen" and
"the employee." She echoed Ms. Leibowitz' remark that many of
the complaints do not merit disturbing a director or
commissioner until a problem is found, at which point the Office
of the Ombudsman would bring it to his/her attention.
REPRESENTATIVE KELLER said he is considering how he would feel
if he was a private contractor with the state and someone came
in to investigate, and he surmised that some contractors would
respond negatively. Conversely, he surmised that some
contractors might appreciate having a third party looking at a
contract; they might consider it a real asset. He asked Ms.
Lord-Jenkins what she thinks the reaction would be.
MS. LORD-JENKINS said in her years of experiencing the reactions
of agencies the office contacts, she has seen agencies become
defensive or wary, but that comes with the territory. She
emphasized that the staff in the Office of the Ombudsman are
trained to be professional, and the goal of the office is to
ensure government employees are acting appropriately. She said
the office is a neutral party, and when it delves into
complaints and finds out what happened, often the complainant
takes the word of the office on the matter; the impartiality of
the office fosters faith in its work. She said a contractor
housing prisoners is acting as a surrogate for the State of
Alaska, and thus has contractual obligations to act as a state
employee would act. The Office of the Ombudsman is part of that
process. She added that the staff is not paid more or less as a
result of any of its findings.
8:34:48 AM
REPRESENTATIVE HUGHES asked if HB 127 would be retroactive.
MS. LEIBOWITZ answered no. She said HB 127 would apply to
contracts made with the state after January 2015.
REPRESENTATIVE HUGHES stated her assumption that Hudson, for
example, uses an internal grievance process, which does not
"reflect anything in the State of Alaska's process."
8:37:35 AM
MS. LEIBOWITZ offered her understanding that the Hudson
grievance processes are supposed to be the same as those used in
DOC. She said she thinks there is some degree of monitoring,
for Hudson and the halfway houses, but said the Office of the
Ombudsman does not have enough data at this point to determine
how active [the monitoring] is. In response to Representative
Hughes, she speculated that the office has received far fewer
complaints related to juvenile justice facilities, probably
because there is more active monitoring by way of more frequent
court hearings. She said she thinks that because the [juvenile]
residential facilities are more "therapeutic," they are more
tightly regulated; therefore, the Office of the Ombudsman has
less information indicating problems there. She suggested that
the Division of Behavioral Health could speak to the grievance
procedures the juvenile residential facilities have in place.
REPRESENTATIVE HUGHES asked if the Office of the Ombudsman is
ever concerned that the internal grievance process itself may be
flawed and, if so, whether it would recommend improvements.
MS. LEIBOWITZ responded that [inspecting grievance processes] is
one of the primary functions of the Office of the Ombudsman.
She said the office cannot handle every complaint in every
agency; therefore, it encourages agencies to have complaint
resolution systems that function sufficiently and impartially.
If someone keeps returning to the Office of the Ombudsman
because the internal conflict resolving process in his/her
agency is not working, then that will most likely lead to "a
large, systemic investigation."
8:40:39 AM
REPRESENTATIVE ISAACSON stated that he sees great value in the
Office of the Ombudsman. He expressed concerned over the former
exchange between Representative Keller and Ms. Lord-Jenkins,
regarding contractors reacting negatively to queries from the
Office of the Ombudsman. He noted that Section 12 refers to
contractors out of state. He asked how the office deals with
retaliatory behavior, if it exists.
MS. LEIBOWITZ deferred to Ms. Lord-Jenkins.
8:42:04 AM
MS. LORD-JENKINS said there have been cases where complainants
alleged that they were being retaliated against or expressed
concern that there may be retaliation, which she said DOC knows
is not acceptable. She related that since her start in the
Office of the Ombudsman, she cannot think of cases where there
have been "any indication that that has happened." She said
when the office communicates its findings to an agency, it
advises the agency that the complainants, witnesses, and anyone
assisting the ombudsman in an investigation are protected under
"the whistle blower" statute, and citizens have the absolute
right to complain about their government. She added, "We
usually have a lot of buy-in with that." She stated her intent
that if HB 127 passes, the Office of the Ombudsman would prepare
material and do on-sight training for the contractors, so that
they understand the history and role of the office in working
with agencies and contract facilities.
8:43:46 AM
REPRESENTATIVE HUGHES said she heard that Alaska has a high
number of nonprofit organizations per capita, and she asked,
"What ... are the total number of these facilities that [under
HB 127] you would now be covering, and how would that impact
your work load?"
MS. LEIBOWITZ answered that the number of nonprofits and grants
for which the state provides various services is the reason
Section 12 has been written and is proposed to be rewritten.
She said the Office of the Ombudsman is aware that it is not in
the position to be able to "pick up that entire area." She
relayed that the office would focus on about 8 halfway houses
and try to reach only those nonprofit organizations that are
"making a threshold determination of 'yes or no, you get to
enter this program.'"
REPRESENTATIVE HUGHES asked Ms. Leibowitz to offer an example of
what kind of eligibility the Office of the Ombudsman would
determine.
MS. LEIBOWITZ responded one example would be Alaska Housing
Finance Corporation's low-income weatherization program. The
determination of whether a person qualifies for the program is
done by a regional grantee organization.
REPRESENTATIVE HUGHES asked, "Would it also include all those
that determine whether someone is eligible for any sort of
public assistance or Medicaid? It seems like that might be
quite a few entities."
MS. LEIBOWITZ answered that upon meeting with the director of
the Division of Public Assistance, it appears that the division
has retained quite a bit of control over the determination of
who will qualify to enter a program. The division has a lot of
grantees performing many services, but holds the reigns more
tightly than Ms. Leibowitz said she might have expected. For
example, she said the Child Care Program Office does grants to
administer the program, and someone who is trying to get
childcare assistance would go to the grantee rather than to the
Division of Public Assistance. In terms of temporary
assistance, the main cash assistance program, Ms. Leibowitz said
there are a lot of grantees working in the area, but she offered
her understanding that the Division of Public Assistance has
retained control of the determination process.
8:49:10 AM
CHAIR LYNN related having served on the team of the inspector
general in the U.S. Air Force, which he said functioned
similarly to a state ombudsman. He stressed the importance of
the Alaska Office of the Ombudsman, and indicated that the
considerations under HB 127 are "more than meets the eye." He
referred to the balance of power between the three branches of
government, and he opined that [HB 127] is too important to rush
through the standing committee process.
8:50:31 AM
CHAIR LYNN assigned the following members to form a subcommittee
to address the issues in HB 127 and report back to the committee
with recommendations: Representative Keller as chair, and
Representatives Gattis and Kreiss-Tomkins as members.
8:51:34 AM
REPRESENTATIVE KELLER said he accepts his designation as chair
of the subcommittee, and he emphasized the importance of the
issue.
| Document Name | Date/Time | Subjects |
|---|---|---|
| 07 Amendment R.1 HB 127.PDF |
HSTA 3/26/2013 8:00:00 AM |
HB 127 |
| 08 Letter Ombudsman 3-15-2013 Alaska Bar Assn HB 127.PDF |
HSTA 3/26/2013 8:00:00 AM |
HB 127 |
| 09 Legal Memo HB 127 AK Bar Assn Agency Gardner 3-21-2013.PDF |
HSTA 3/26/2013 8:00:00 AM |
HB 127 |
| 10 Letter Ombudsman 3-19-2013 HB 127.PDF |
HSTA 3/26/2013 8:00:00 AM |
HB 127 |
| 11 Legislative Research Ombudsman Salary Freeze HB 127 3-20-2013.PDF |
HSTA 3/26/2013 8:00:00 AM |
HB 127 |
| 12 email Ombudsman answering Isaacson questions HB 127 3-19-2013.PDF |
HSTA 3/26/2013 8:00:00 AM |
HB 127 |
| 13 Letter Opposing HB 127 North Star 3-19-2013.PDF |
HSTA 3/26/2013 8:00:00 AM |
HB 127 |
| 14 HB127-DOA-OPA-3-15-13.pdf |
HSTA 3/26/2013 8:00:00 AM |
HB 127 |
| 15 HB127-DOC-OC-03-15-13.pdf |
HSTA 3/26/2013 8:00:00 AM |
HB 127 |
| 16 2012-2013 Alaska Bar Rules Rule 21 and Rule 22.pdf |
HSTA 3/26/2013 8:00:00 AM |
HB 127 |
| 17 HB 127.ACLU Review.2013-03-11.pdf |
HSTA 3/26/2013 8:00:00 AM |
HB 127 |