Legislature(2013 - 2014)BELTZ 105 (TSBldg)
04/14/2014 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB366 | |
| HB140 | |
| HB127 | |
| HB250 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 366 | TELECONFERENCED | |
| *+ | HB 140 | TELECONFERENCED | |
| + | HB 127 | TELECONFERENCED | |
| + | HB 250 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 127-OMBUDSMAN
2:28:02 PM
CHAIR COGHILL announced the consideration of HB 127. "An Act
relating to compensation of the ombudsman and to employment of
staff by the ombudsman under personal service contracts;
relating to disclosure by an agency to the ombudsman of
communications subject to attorney-client and attorney work-
product privileges; 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; and
amending Rules 501 and 503, Alaska Rules of Evidence." [This was
the first hearing and CSHB 127(JUD) was before the committee.]
2:28:32 PM
LINDA LORD-JENKINS, Ombudsman, Alaska Office of the Ombudsman,
Alaska State Legislature, Anchorage, Alaska, introduced HB 127
speaking to the following sponsor statement and sectional
description:
The Ombudsman Act (AS 24.55) has not changed much
since enactment in 1975, which speaks well for its
basic structure. The ombudsman requested and obtained
some modifications of the Ombudsman Act in 1990. It
has become apparent that the Ombudsman Act would
benefit from updates to address several issues that
have arisen since 1990.
The following is a brief sectional description of the
bill:
· Section 1 of CSHB 127(JUD) provides that the
ombudsman may receive a step increase in salary,
rather than remaining Step A of Range 26 for the
ombudsman's entire term or terms.
· Section 2 clarifies the ombudsman's authority to
hire additional staff using a personal services
contract pursuant to AS 24.55.060(f).
· Section 3 amends a section on the ombudsman's
investigatory authority to refer simply to
"agency" instead of "state agency." This brings
the section into conformance with the rest of the
Ombudsman Act (AS 24.55), which consistently
refers to the ombudsman's authority to
investigate an administrative "agency."
· Section 4 prevents a general waiver of attorney-
client privilege by an agency if it shares its
attorney's advice with the Office of the
Ombudsman in order to explain the agency's
actions.
· Section 5 improves the wording of the ombudsman's
existing privilege not to testify or produce
records regarding matters brought to the
ombudsman's attention in the course of her
duties.
· Section 6 modernizes the ombudsman's procurement
authority.
· Sections 7 and 8 state that sections 4 and 5 are
indirect court rule amendments because they
modify evidentiary rules, and that therefore
sections 4 and 5 only take effect if the
legislation is approved by a two-thirds majority
vote of each house, as required by Art. IV,
Section 15 of the Constitution of the State of
Alaska.
2:33:50 PM
SENATOR WIELECHOWSKI summarized an account of a constituent's
false arrest. He noted that she filed a complaint and it
languished for a year or so. He inquired if there are timelines
for completing an investigation and releasing the ombudsman's
report.
MS. LORD-JENKINS replied there are timelines, but they're
impractical given the workload and the fact that the office has
just one executive and one administrative secretary. She
acknowledged that she was the bottleneck because she was the
only one who could vet a case.
SENATOR WIELECHOWSKI asked how many complaints or investigations
are requested each year.
MR. LORD-JENKINS said 1,200 complaints came in last year and the
number is up 34 percent this year.
SENATOR WIELECHOWSKI asked if she had suggestions on how to
speed the process because the concern about timelines wasn't
unique to that one constituent.
MS. LORD-JENKINS responded that the solution was additional
money and staff. She explained that she doesn't request money
for additional staffing unless there is a sizeable jump in
caseload. She anticipates that she'll ask for more staff next
year.
2:38:46 PM
CHAIR COGHILL expressed a desire to send the matter to finance.
MS. LORD-JENKINS clarified that there was no finance referral.
CHAIR COGHILL commented that the authority to contract offers
some flexibility.
MS. LORD-JENKINS provided an example to show how she had used
the contracting authority in the past. In 2008 she hired two
Tier I retirees; one had worked in the office in the 1990s and
the other had broad, general governmental experience. Because
the contract workers were Tier I there wasn't a requirement to
pay into the PERS system or for health insurance. This amounted
to getting two employees for the price of one.
2:40:54 PM
SENATOR WIELECHOWSKI noted that the original version referenced
the Alaska Bar Association.
CHAIR COGHILL said several things were removed as the bill went
through the process in the other body, including looking at the
Alaska Bar Association as an agency. He offered his perspective
that a lot was expected of the ombudsman and the legislature had
been reluctant to loosen the reins.
SENATOR MCGUIRE thanked Ms. Lord-Jenkins for her work.
SENATOR WIELECHOWSKI requested more detail on sections 4 and 5.
2:43:16 PM
BETH LEIBOWITZ, Assistant Ombudsman, Alaska Office of the
Ombudsman, Alaska State Legislature, Juneau, Alaska, addressed
Section 4. She explained that the Office of the Ombudsman has
mandatory access to most state agency records, but it
specifically excludes attorney-client privileged communications
and attorney work product. However, there have been instances
where executive branch agencies have given the Office of the
Ombudsman communications from their assistant attorney general.
She noted that this is often helpful because it may help explain
the conduct.
MS. LEIBOWITZ advised that, on closer review, she realized that
case law in other states and federal cases indicates that this
could inadvertently create a general waiver of privilege for
those agencies. That's not a desirable consequence. The Office
of the Ombudsman would therefore like to preserve an agency's
ability to cooperate with an investigation without potentially
creating an unfortunate consequence in some unrelated
litigation.
She told the committee that the Office of the Ombudsman cannot
disclose that attorney-client material once it is received. It
is confidential under statute and the enhanced testimonial
privilege in this bill is designed specifically to ensure that
the information doesn't leave the office once it comes in.
SENATOR WIELECHOWSKI said that last part piqued his interest. He
inquired what the Office of the Ombudsman does if it finds that
an agency has broken the law and there are privileged
conversations about that. "Isn't that something you would want
to disclose to the public or you would want people to know
about?" he asked.
MS. LEIBOWITZ explained that the ombudsman can tell the agency
it is breaking the law and the ombudsman can tell the
legislature and the public that the agency is acting contrary to
law, but the Office of the Ombudsman cannot publicize material
that would otherwise not be public.
CHAIR COGHILL added that the ombudsman can't disclose
confidential information about children or people who are
incarcerated, but the ombudsman can tell if medical information
isn't handled correctly or people aren't being well served.
SENATOR WIELECHOWSKI pointed out that the ombudsman may be privy
to communications between an attorney and an agency director
admitting he/she broke the law. He asked if the legislature
could disclose that if the ombudsman disclosed it to the
legislature.
MS. LEIBOWITZ said her understanding of the statute is that the
ombudsman cannot disclose the information once the office is let
into that bubble of privilege. Conclusions can be reported to
the public and the legislature, but the confidence has to be
respected. She acknowledged there is a potential problem, but
she believes that it's highly unlikely that an agency would
share a communication about breaking the law.
MS. LORD-JENKINS said there have been cases where agencies have
inadvertently provided attorney-client privileged information
and the agency hasn't followed that attorney general's advice.
In those instances her office has notified the agency, the
department commissioner, and the attorney general. That
generally takes care of the problem, she said. The complainant
is told that the confidential information can't be divulged, but
that the particular allegation is justified.
SENATOR WIELECHOWSKI pointed out that Section 5 creates a
further provision that the ombudsman can't be subpoenaed,
deposed or testify on anything they found in the course of the
investigation.
MS. LEIBOWITZ argued that the basic nature of the section on
testimonial privilege hasn't changed since the Ombudsman Act was
enacted in 1975. This amendment rewrites the section to make it
absolutely clear that the ombudsman doesn't appear in court to
testify in litigation unless necessary to enforce the
ombudsman's duties under the Act. The privilege is designed to
keep the ombudsman from being an inadvertent discovery source
for other litigants.
SENATOR WIELECHOWSKI read Sec. 24.55.260 and pointed out that
the new language broadens the privilege not to testify, which
profoundly limits what the ombudsman can release. He questioned
whether it was the best policy call to say that the ombudsman
can't release any information it finds in the course of an
investigation.
MS. LORD-JENKINS stated that the purpose of the ombudsman is to
resolve complaints against state government, but the ombudsman
has never been envisioned as an entity that is an adjunct to
private litigants against the state. The job would become much
more difficult if the ombudsman had to provide free discovery
for any entity.
CHAIR COGHILL stated that he would hold HB 127 for further
consideration.