Legislature(2013 - 2014)FAHRENKAMP 203
04/15/2014 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB250 | |
| HB127 | |
| HB140 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 140 | TELECONFERENCED | |
| += | HB 127 | TELECONFERENCED | |
| += | HB 250 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 127-OMBUDSMAN
1:57:15 PM
CHAIR COGHILL reconvened the meeting and 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." He noted that this was the second hearing. [CSHB
127(JUD) was before the committee.]
He asked Senator Wielechowski if his questions were answered.
1:57:47 PM
SENATOR WIELECHOWSKI moved Amendment 1, labeled 28-LS0088\B.2
CHAIR COGHILL objected.
AMENDMENT 1
OFFERED IN THE SENATE BY SENATOR WIELECHOWSKI
TO: CSSB 127(JUD)
Page 2, line 19, following "subsection":
Insert "unless the communication is evidence of
illegal activity"
SENATOR WIELECHOWSKI explained that his concern was that illegal
activity that an ombudsman finds in the course of an
investigation should not be shielded.
CHAIR COGHILL asked Ms. Lord-Jenkins to clarify how the proposed
amendment to Subsection 4 would affect the ombudsman's
investigative procedures under AS 24.55.160.
2:00:19 PM
LINDA LORD-JENKINS, Ombudsman, Office of the Ombudsman, Alaska
State Legislature, Anchorage, Alaska, read the statutes
governing the ombudsman's duty to publish recommendations under
AS 24.55.200 and the procedure under AS 24.55.220 if the
ombudsman believes there is misconduct by agency personnel.
CHAIR COGHILL asked how the new subsection (c) for AS 24.55.160
differs from the ombudsman's current responsibility.
2:03:25 PM
BETH LEIBOWITZ, Assistant Ombudsman, Office of the Ombudsman,
Alaska State Legislature, Juneau, Alaska, explained that, under
AS 24.55.220, the ombudsman is required to refer a finding of
misconduct or blatant illegality to the appropriate entity.
However, that does not give the ombudsman the ability to
disclose a record that is otherwise confidential. The proposed
amendment to Section 4 says that if the ombudsman receives a
privileged communication from an agency, the ombudsman would
hand that over as part of the referral. Without the amendment,
the ombudsman would continue to be able to refer the matter to
the appropriate authority, but would not be able to deliver a
copy of a privileged communication that the ombudsman may have
received.
SENATOR DYSON said he assumes that much of what the person who
requests an investigation says is privileged.
MS. LEIBOWITZ replied the ombudsman has an obligation of
confidentiality to the person who comes forward with a
complaint. There is also testimonial privilege which says the
ombudsman may only disclosure as necessary to carry out the
duties of the Ombudsman Act.
SENATOR DYSON observed that the discussion is that the ombudsman
can refer a client's disclosure of illegal activities to the
appropriate agency.
MS. LEIBOWITZ replied the statute doesn't talk about what the
ombudsman is to do if a complainant discloses criminal activity,
whereas AS 24.55.160 gives the clear duty to refer the
misconduct to the head of the agency, law enforcement, or both.
SENATOR DYSON asked if the ombudsman can under present law
disclose information from one person alleging illegal activity
by another person or group.
MS. LEIBOWITZ said she believes so.
SENATOR DYSON asked if it's correct to infer that the amendment
would restrict the ombudsman in a way that it is not presently
restricted.
MS. LEIBOWITZ clarified that it would undermine the specific
provision that would allow an agency to share attorney-client
privileged material with the ombudsman who would respect the
privilege. Responding to a further question from Senator Dyson,
she explained that Section 4 deals specifically with attorney-
client privileged material that is given to the ombudsman in the
course of an investigation.
2:09:12 PM
SENATOR WIELECHOWSKI provided an example. During the course of
an agency investigation the ombudsman uncovers attorney-client
privileged documents in which an executive admits to having
broken the law. The statute requires the ombudsman to report the
admission, but Section 4 makes it clear that the accompanying
document may not be provided. He maintained that creating that
shield does not benefit the public and was a bad policy.
SENATOR MCGUIRE discussed the balance between getting agencies
to cooperate in an investigation versus the public's right to
get reconciliation and understand what's going on. She said she
was torn.
MS. LEIBOWITZ said she believes that if an agency director
admits to illegal conduct in a privileged communication with the
Department of Law, it probably will lead to plenty of non-
privileged evidence that can be disclosed.
SENATOR MCGUIRE said she could support that.
MS. LORD-JENKINS again pointed out that under AS 24.55.200 the
ombudsman not only reports the activity to the agency but also
has the option of presenting it to "the governor, the
legislature, a grand jury, the public or any of these." The
ombudsman could tell a complainant their allegations are
substantiated, but the complainant could not be told why because
it's based on confidential information that the complainant is
not otherwise entitled to have.
MS. LORD-JENKINS said that in the name of transparency she
agrees that citizens have the right to know, but under the law
there are certain things that citizens are not entitled to know.
2:15:37 PM
SENATOR WIELECHOWSKI maintained that it's good state policy to
require departments in Alaska to cooperate with the ombudsmen.
That means turning over privileged documents and if they show
illegal activity it will be reported.
MS. LORD-JENKINS, responding to a question from Senator Dyson,
explained that when the ombudsman office was created in 1976, it
had access to privileged attorney-client information. The
legislature amended the statute in the early 1990s at the
request of the Public Defender Agency and the Office of Public
Advocacy defense section. The unintended consequence was that
the ombudsman lost access to attorney-client privileged
material. An agency can waive the attorney-client privilege, but
based on case law if an agency and the DOL waives privilege as
to one entity then all other entities have that access. The
provision in Section 4 would allow an agency to waive privilege
without having it be public information for everybody.
SENATOR DYSON asked if Senator Wielechowski's amendment would
give the ombudsman's office the same access to privileged
attorney-client information that it had in 1976.
MS. LEIBOWITZ said the amendment may approach the original
access, but it may create problems if agencies realize that the
waiver allows other entities to have access to the privileged
material.
SENATOR WIELECHOWSKI addressed Senator Dyson's question. The
bill says that the ombudsman may not disclose a privileged
communication under subsection (c). The amendment adds that this
doesn't apply if the information pertains to illegal activity.
CHAIR COGHILL asked if the agencies are shielded without this
amendment.
MS. LEIBOWITZ stated that under current law they are completely
shielded.
CHAIR COGHILL offered his understanding that under current law
the ombudsman's ability to receive any privileged information is
negotiated.
MS. LEIBOWITZ responded that agencies have an active
disincentive to waive privilege to the ombudsman because case
law indicates that it would evaporate the privilege for all
parties.
SENATOR WIELECHOWSKI said he wants a strong ombudsman and
doesn't believe that agencies should be coddled. In light of
this discussion, he suggested adding a provision requiring
agencies to disclose attorney-client privileged or attorney work
product to the ombudsman upon request.
SENATOR DYSON said he supports the ombudsman and he technically
agrees with the amendment, but he did not want to jeopardize the
bill.
2:27:40 PM
SENATOR MCGUIRE asked if the ombudsman had the power to compel
attorney-client privileged documents before the legislature
changed the statute in the 1990s. She also asked if they would
object to reinserting that language.
MS. LEIBOWITZ clarified that the original statute gave the
ombudsman broad power but it was not express. The 1990
amendments were designed to make the ombudsman's authority to
access agency records absolutely express, and one of the
compromises to get that amendment through was to exclude
attorney-client privileged material and attorney work product.
CHAIR COGHILL offered his understanding that [Section 4] is the
first attempt to get back to attorney-client privileged
information.
MS. LEIBOWITZ said that's correct.
SENATOR MCGUIRE said her concern is that the net effect will be
that an agency will disclose attorney-client privileged
information that supports their position, but not if the
information supports the other side or reveals some misconduct.
2:30:24 PM
MS. LORD-JENKINS agreed there is always that concern and it
might be a good idea to think about this in small steps. She
suggested that her office could track their requests to agencies
to waiver attorney-client privilege and the rate of cooperation.
She opined that it would be a very telling fact if an agency
agreed to waive the privilege as long as they didn't have to
worry about the waiver going to all parties.
2:32:41 PM
CHAIR COGHILL maintained his objection to Amendment 1.
SENATOR WIELECHOWSKI responded that he believes in the attorney-
client privilege for private parties, but it's a little
different with government. Taxpayers pay the salaries of
government employees and would essentially be paying an attorney
to potentially cover up some illegal activity. He said that's
fundamentally wrong and he continues to believe that there
should be another provision that requires agencies to disclose
attorney-client privileged information. He offered to continue
to work on the amendment between now and when the bill reaches
the floor if there wasn't support for it in the committee.
SENATOR MCGUIRE suggested the amendment say that the waiver does
not apply to any other person and that illegal activity can be
disclosed. She said she would vote for the amendment because
it's right and she had no compelling reason not to.
CHAIR COGHILL asked Senator Wielechowski to withdraw the
amendment, do more homework, and address it tomorrow.
2:35:55 PM
SENATOR WIELECHOWSKI withdrew Amendment 1.
SENATOR DYSON requested the bill sponsor be included in the
discussion.
CHAIR COGHILL agreed.
MS. LEIBOWITZ said she believes the ombudsman is unlikely to
obtain privileged information that would fit the amendment.
SENATOR MCGUIRE restated her proposal to compel agencies to
provide the information in all cases.
SENATOR WIELECHOWSKI stated his intention to work cooperatively
with the interested parties.
SENATOR WIELECHOWSKI distributed another amendment for the
committee to review.
2:39:49 PM
CHAIR COGHILL held HB 127 for further consideration.
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