HB 58-OPA: PUBLIC ADVOCATE APPOINTMENT  3:18:38 PM CHAIR CARRICK announced that the first order of business would be HOUSE BILL NO. 58, "An Act relating to the office of public advocacy; and relating to the public advocate." 3:19:11 PM REPRESENTATIVE ZACH FIELDS, Alaska State Legislature, as prime sponsor, presented HB 58. He said that he introduced the proposed bill when a constituent who had worked in the Office of Public Advocacy (OPA) explained that the selection of the head of OPA is very different from the selection process of the Alaska Public Defender Agency (PDA), despite having similar functions and work and many of the same types of legal cases. He opined that work associated with OPA was even more complex. He said the bill objective is to make the selection process of the director of OPA analogous to the selection process of the public defender in PDA. He commented that this probably should have been done 40 years ago. He clarified that the bill is not intended to criticize the current director of OPA but was intended to create a structural fix to the selection process. REPRESENTATIVE FIELDS explained that OPA was established in 1984 by a bill that was put forward by the governor at the time. This office was established to provide legal advocacy and guardianship to vulnerable Alaskans. He said that often PDA and OPA are required to hire outside counsel in cases that involve a conflict of interest. He remarked that OPA provides crucial services for children, vulnerable individuals, and represents clients in a variety of civil and criminal matters. This includes advocacy for abused and neglected children, as well as protective proceedings regarding guardianship for incapacitated adults. He reaffirmed that OPA plays a role in these types of cases when a public defender can have a conflict of interest. REPRESENTATIVE FIELDS reiterated that OPA was established in 1984 whereas PDA was formed in 1969. He explained that PDA provides constitutionally mandated legal representation to vulnerable clients, including legal representation in criminal cases. When looking at the work of both OPA and PDA, the scope of OPA's work is broader, but both agencies are essential for providing constitutionally required legal representation. REPRESENTATIVE FIELDS explained that both agencies are similar in that they are both government agencies that provide legal services under the Department of Administration (DOA). They both serve vulnerable Alaskans and, in some cases, represent clients in the same case. He noted that OPA provides these services to youth and elderly individuals. However, despite these similarities, the process for selecting each office's director differs substantially. REPRESENTATIVE FIELDS explained that the public defender is appointed by the governor from a list of two or more candidates nominated by the Judicial Council. The prospective appointee is subject to confirmation by members of the Alaska State Legislature and serves a term of four years before reappointment. He noted that the governor may remove the public defender at any time. In contrast, the OPA director, though also appointed by the governor, is not subject to confirmation or term limits. However, like the public defender, the OPA director may be removed at the governor's discretion. REPRESENTATIVE FIELDS, in conclusion, said that the selection processes for the two agencies differ, despite overlapping services provided by OPA and PDA. He reiterated that the OPA arguably has an even broader scope of practice. CHAIR CARRICK announced the committee would hear invited testimony. 3:23:41 PM BRANT MCGEE, Independent Law Practice Professional, began invited testimony in support of HB 58. He said he was the first public advocate, appointed in 1984, and served at OPA until 2003. He stated that the proposed legislation corrects a mistake dating back to the agency's creation in 1984. He added that adopting the same selection process as that of PDA is appropriate and expressed uncertainty about why it was never aligned. MR. MCGEE explained that there were three reasons to accommodate the proposed changes to the appointment process in OPA. First, it would address potential conflicts of interest. Second, OPA can serve as the entity responsible for accountability. Third, the position does not involve policymaking or policy implementation. He noted that OPA's responsibilities are established by statute in the U.S. and Alaska Constitutions. He urged the committee to take these three reasons into consideration when evaluating the proposed legislation. 3:28:33 PM SUSANNE DIPIETRO, Executive Director, Alaska Judicial Council, Alaska Court System, began invited testimony on HB 58 by explaining that the council was established in Article 4 of the Alaska State Constitution and its members include both lawyers and non-lawyers who are appointed without regard to political affiliation since the council is a nonpartisan body. MS. DIPIETRO explained that the Alaska Judicial Council has several constitutional and statutory duties. She explained that one important duty would be the council's statutory duty to screen and nominate applicants to the position of public defender. She said that as Representative Fields had mentioned, the intent of the bill is to use the same nomination procedures for OPA as currently conducted with PDA. MS. DIPIETRO discussed the process of nominating a public defender. First is the announcement of a vacancy, followed by solicitations from applicants. She said this is widely publicized; a letter is sent out to every lawyer in the state; press releases are put out; and information is posted on the Alaska Judicial Council's website. She said that this is a 5- week application process and included a 27-page application that asked for previous employers, education, legal experience, trial-practice experience, and any references that were previously affiliated with their work. They are also required to provide waivers to allow the council access to their confidential personnel files and their confidential bar- discipline records. At the close of this application process, the Alaska Judicial Council publicizes the names of people who have applied, and an electronic survey is sent to every member of the bar who may have had direct experience with the applicants to rate applicant qualifications. She said applicants are rated on several qualities that the council has found to be critical to these types of positions. These include legal ability, temperament, impartiality, fairness, integrity, and overall performance. The results of the survey are posted on the council's website for everyone to see. MS. DIPIETRO said that during the application process, council staff are investigating all the information that the applicants provided. Contact is made to each legal employer that the person has worked for and requests feedback about their performance. The council also contacts references and other people who have been involved in litigation with the applicant; this could involve co-counsel, opposing council, or even as a judge in the case. These affiliates are asked to answer a questionnaire providing detailed feedback about the applicant's performance. MS. DIPIETRO said that the Alaska Judicial Council also conducts criminal-records checks, credit-history checks, and looks through those personnel files and bar-discipline files, and does other investigations as needed. Importantly, the council members listen to public comments throughout the process. MS. DIPIETRO said that the council holds a public hearing on the applicants and a 45-minute interview is held for each applicant. Following the interviews, the council nominates the most qualified individuals in the group. She said the criteria used to determine "most qualified" include professional competence, diligence and administrative skills, integrity, fairness, temperament, judgement, common sense, legal and life experience, commitment, demonstrated commitment to the public and community service and a demonstrated commitment to equal justice and the legal needs of all communities in Alaska. MS. DIPIETRO noted that at least two individuals are nominated for later confirmation processes and only the most qualified among the applicants were candidates following application procedures. 3:34:30 PM REPRESENTATIVE HOLLAND said he recalled a lot of these details from previous discussions in the House Community and Regional Affairs Standing Committee. He asked whether there were any changes to the proposed legislation since those previous discussions. 3:35:05 PM REPRESENTATIVE FIELDS responded that there had been no changes to the bill. 3:35:20 PM COURTNEY OWEN, Staff, Representative Zack Fields, Alaska State Legislature, on behalf of Representative Fields, prime sponsor, gave the sectional analysis for HB 58 [included in the committee file], which read as follows [original punctuation provided]: Section 1: Amends AS 13.26.750(a), changing the title from "COMMISSIONER OF ADMINISTRATION" to "public advocate." Section 2: Amends AS 36.30.305(a), changing the title from "DIRECTOR OF THE OFFICE OF PUBLIC ADVOCACY" to "public advocate." Section 3: Amends AS 36.30.850(b)(31), changing the title from "DIRECTOR OF THE OFFICE OF PUBLIC ADVOCACY" to "public advocate." Section 4: Amends AS 44.21.400 to read: (with reference to the "public advocacy office") "The office is administered by the public advocate." Section 5: Amends AS 44.21 by adding a new section that reads: "Sec.44.21.405. Appointment, removal, and vacancy." Subsection (a) directs the governor to appoint the public advocate for a term of four years, from persons nominated by the judicial council and subject to majority confirmation by the joint legislature. Retention of the public advocate requiring only similar legislative approval. Subsection (b) lays out the removal process for the public advocate, a power held by the governor, who need only submit a report stating the reasons and notify the legislature of the report within 10 days after the convening of the regular session. Subsection (c) required eligibility entails acquiring admittance to practice law in the State of Alaska. NOTE: This mirrors the existing Sec. 44.21.430 (requiring employees of the public advocacy office to be licensed to practice law in the State of Alaska. Subsection (d) during vacancy, the governor has discretionary authority to appoint an "acting public advocate" and the joint duty (with judicial council) to fill the vacancy as soon as possible. Section 6: Amends AS 44.21.410(a)(7), changing the title from "COMMISSIONER OF ADMINISTRATION" to "public advocate." Section 7: Amends AS 44.21.410(b), changing the title from "COMMISSIONER OF ADMINISTRATON" to "public advocate" (and under (b)(1): "COMMISSIONER" to "public advocate"). Section 8: Amends AS 44.21.415(c), changing the title from "COMMISSIONER" to "public advocate." Section 9: Amends AS 44.21.415(e), changing the title from "COMMISSIONER OF ADMINISTRATION" to "public advocate." Section 10: Amends AS 44.21.420, changing the title from "COMMISSIONER OF ADMINISTRATON" in subsection (a) and "COMMISSIONER" in subsections (b), & (c), to "public advocate." Section 11: The uncodified law of the State of Alaska is amended by adding a new section, titled: "TRANSITION" and to read: Subsection (a): Provides for the continuity of all orders, regulations, contracts, rights, liabilities and obligations issued, created, or adopted by the predecessor to the envisioned public advocate (the commissioner of administration) and by the pre- existing law changed by this bill. Subsection (b): Provides for the continuity of governance by allowing the individual employed as the director of the office of public advocacy on the day before the effective date of this Act to serve as the public advocate until the governor appoints a new public advocate. 3:38:34 PM CHAIR CARRICK announced that HB 58 was held over.