SB 72-OMBUDSMAN  1:39:14 PM CHAIR COGHILL announced the consideration of SB 72. BETH LEIBOWITZ, Assistant Ombudsman, Office of the Ombudsman, introduced herself and stated that Ombudsman Linda Lord-Jenkins was available on-line to answer questions. She asked the chair how he would like her to proceed. CHAIR COGHILL requested an overview of the bill. MS. LEIBOWITZ explained that it has been about 20 years since the ombudsman's office has had substantive revision to its enabling legislation. She related that changes need to be made to the confidentiality provisions. The first request is to amend the testimonial privilege to express that the ombudsman's office does not testify in court, produce documents, attend depositions, or go to administrative adjudications, except as necessary to enforce provisions of the Ombudsman Act. The second request is to have confidentiality extended to communications with the executive branch agencies that are investigated so that those communications can be taken out of the public records realm. The current statute requires the ombudsman's office to provide a confidential preliminary report to the agency under investigation. The agency cannot release that report to the public, but there is no similar prohibition for all the correspondence leading up to that confidential report. CHAIR COGHILL asked if that is found in Sections 4 and 5. MS. LEIBOWITZ said that would be Section 4. Section 5 deals with attorney/client privilege, and the ombudsman's office does not have access to attorney/client privileged documents. She restated that the ombudsman's office requests that if an agency offers material to explain its actions, that information be held confidential. MS. LEIBOWITZ said the ombudsman's office is also requesting a statutory provision that provides for an informal investigative report - something between a complaint that is closed as premature or declined, and a full, formal investigative report signed by the ombudsman. This request is found in Sections 6 through 9. She discussed the procurement statute, which is outdated and needs to be brought into alignment with the legislative procurement policies. MS. LEIBOWITZ described two personnel housekeeping provision requests. One is to unfreeze the ombudsman's salary, which is currently set by statute at Step A, Range 26. The ombudsman's office is the only legislative agency where the salary is set at a given range and frozen. The request is that the range is set at 26, with the ability to move through the steps. 1:45:24 PM The second personnel request is to clarify that the ombudsman's office can hire personal services contract employees just as the rest of the legislative branch can. Current statutory language is not clear regarding that issue. CHAIR COGHILL responded favorably to the salary issue recommendation. He inquired if the bill would take what is currently in place for the legislature and apply it to contract procedures and the procurement code for the ombudsman's office. MS. LEIBOWITZ agreed. 1:46:43 PM SENATOR OLSON asked why the confidentiality clause needs to be changed. He asked if there had been problems. MS. LEIBOWITZ replied that there have been very few problems, but a recent request brought to light that the confidentiality statute needed clarification. 1:47:54 PM SENATOR OLSON asked if the ombudsman's position has been difficult to fill due to the salary issue. MS. LEIBOWITZ said she did not think so, but because of term limits a new ombudsman would have to be appointed in a few years. CHAIR COGHILL asked why the range was exempted from step increases. MS. LEIBOWITZ said she was not sure. She explained the history of the ombudsman's salary since the Ombudsman Act in 1975. In 2001, the Office of Victim's Rights was created and the victim's advocate received exactly the same compensation as the ombudsman - Range 26, Step A. Last year, the victim's rights statute was amended to remove the "Step A" limiting language, and the ombudsman's office is asking for parity. 1:49:46 PM MS. LEIBOWITZ explained that the bill provides for two areas of jurisdictional determination from the legislature. The first is found in Section 1 and requests a determination whether or not the ombudsman's office is supposed to investigate complaints about the Alaska Bar Association (ABA). She explained that the matter has remained unresolved since 1980 when it first came up. She pointed out that the Alaska Ombudsman has jurisdiction over the administrative portions of the judicial branch. She related that she has done the analysis used by the Alaska Supreme Court to determine what is a state agency, and it is not clear if the ABA is or not. She could not predict what a court would rule about the ABA's status relative to the Ombudsman Act. She requested that the legislature make the call. SENATOR MCGUIRE spoke of concerns about changing statute so the ABA is under the auspices of the ombudsman's office. She asked what would be the nature of an ombudsman complaint where access to ABA records would be sought. MS. LEIBOWITZ replied that there were only about a dozen complaints against the ABA in the last decade. The majority were from people filing a grievance against their attorney, usually in a criminal defense matter. She explained for those cases, in order to do a full investigation, the ombudsman's office would have to access ABA records. This would appear to create a problem for the ombudsman's office because ABA rules appear to restrict access. SENATOR MCGUIRE asked what trade associations can be investigated by the ombudsman's office, such as the Alaska Medical Association, the Alaska Dental Association, and the Alaska Nurses Association. MS. LEIBOWITZ explained that their office does not have jurisdiction over the aforementioned agencies. She stated that they have jurisdiction over state licensing agencies, such as the Alaska Medical Board, the Alaska Nursing Board, and many occupational licensing boards within the Department of Commerce, Community and Economic Development. 1:54:38 PM CHAIR COGHILL gave an example of a person who has trouble with a medical provider, is not satisfied with the medical board's review, and takes their complaint to the Office of the Ombudsman, who will deal with the complaint at the board level. MS. LEIBOWITZ said often the ombudsman is not able to satisfy the complainant because he/she is not able to talk about confidential material. CHAIR COGHILL asked what the ombudsman would do if he/she found a board operated improperly. MS. LEIBOWITZ said the ombudsman would be able to make recommendations to the medical board at the division level and at the professional level. CHAIR COGHILL said that is similar to the ABA in that they police their own. MS. LEIBOWITZ agreed that they act as a licensing agency. CHAIR COGHILL asked what the next recourse was for someone who did not agree with an attorney and appealed to the ABA, but was not satisfied. MS. LEIBOWITZ explained that there are several layers of review within the ABA. After that the person can request the Alaska Supreme Court to review the matter. 1:57:18 PM CHAIR COGHILL said he understood that dues-paying entities have oversight by the Alaska Supreme Court. He inquired how the ABA could be considered a state agency when it does not receive state funding. MS. LEIBOWITZ said it was a call the legislature would have to make. She agreed that the ABA does not receive state funding, but it does conduct state licensing. The lack of public funding is one of the factors in favor of the ABA not being considered a state agency. CHAIR COGHILL said it creates an interesting conundrum because lawyers who become judges are members of the ABA. MS. LEIBOWITZ highlighted that the ABA is not a voluntary association. CHAIR COGHILL compared it to legislators sitting on the Select Committee on Legislative Ethics. MS. LEIBOWITZ offered her understanding that three members of the Board of Governors of the Alaska Bar Association are public members appointed by the governor. CHAIR COGHILL asked if there is an avenue other than the ombudsman to deal with ABA issues; if the ABA is not serving with integrity, there should be another authority. MS. LEIBOWITZ emphasized that it is a matter of clarifying that the Office of the Ombudsman has the authority to investigate the ABA. She offered to provide the committee with the analysis of the history of the issue and the potential pitfalls regarding ABA rules versus the Ombudsman Act. CHAIR COGHILL said he would like the information. He requested Mr. Van Goor's opinion. STEVE VAN GOOR, Bar Counsel, Alaska Bar Association (ABA), agreed with Ms. Leibowitz's analysis of the ABA's oversight abilities. For example, if someone makes a complaint against a lawyer, that person can have the ABA's decision reviewed by a member of the Board of Governors. If a complainant still disagrees, he/she can appeal to the Alaska Supreme Court. He added that the bar rules outline a specific path for the investigation of complaints and the prosecution of unethical conduct. 2:02:49 PM MR. VAN GOOR spoke of legislative performance audits of the ABA since 1980, all of which have resulted in a recommendation of continuation of the ABA as the agency responsible for the admission and discipline of lawyers. He stated that the ABA is responsible to all three branches of state government. He said of the 3,079 complaints that have come before the ABA, only a dozen or so made it to the ombudsman's office. He spoke of the adverse public policy effect if confidential investigations are made public. Lawyers would be less candid if they knew their clients' complaints could be made public. He explained a concern of the Public Defender Agency. He emphasized that due to privacy concerns, the ABA would have to take this issue to the Alaska Supreme Court if the provision were to be adopted. He concluded that the ABA should not be subject to the Office of the Ombudsman. 2:07:20 PM CHAIR COGHILL stressed the importance of the individual's ability to make a complaint and the difficulty for a person to have to go to the Alaska Supreme Court. He asked for an example of how an individual could have a complaint resolved by means of due process. MR. VAN GOOR explained the steps to address complaints. He said the two most common complaints are neglect and failure to communicate, or "poor customer service." The first step is to ensure that the complaint meets the minimum requirements. Then the complaint is sent to the lawyer for a response. The lawyer may respond and typically does. The ABA must prove that there is clear and convincing evidence that there are grounds for the complaint. He noted that lawyers often don't realize that neglect and failure to communicate cause most of the problems. He related that the next step is that the response from the lawyer is given to the complainant. Then, the ABA must decide if an investigation is warranted. He pointed out that the ABA does more than most jurisdictions and will provide an explanation to the client. Some clients will not be satisfied and will then have their files reviewed by the board liaison who will decide whether an investigation is warranted. Those who are not satisfied can appeal to the Alaska Supreme Court. He confirmed that appealing to the Alaska Supreme Court is not easy for the client to do. 2:12:26 PM MR. VAN GOOR related that since the Anderson decision, which gave people the authority to appeal to the Alaska Supreme Court, only about a dozen have done so. After the court accepts the matter for an original review, the ABA sends the entire file to the court and responds to the allegations. CHAIR COGHILL asked for a definition of "original review" and an explanation of what type of issue ends up under an original review. MR. VAN GOOR explained that it is an original application found under the appellate rules that is a request for review by the court that does not conveniently fall into other categories in the appellate rules. It is not a direct appeal, a petition for review, or a petition for a hearing. It is an original matter subject to the court's authority, in which a person asks the court to review the actions. CHAIR COGHILL asked what types of issues would end up under that type of review. MR. VAN GOOR said issues such as when a lawyer fails to communicate with a client or neglects a client matter. CHAIR COGHILL observed that these would not involve ethical questions, rules of procedure, or criminal behavior. MR. VAN GOOR clarified that most complaints come from domestic relations cases or from prisoners who complain about ineffective representation. Under the rules of court, these individuals have the ability to ask for post-conviction relief, a process in which representation is reviewed and action can be taken to address attorney shortcomings. The individuals often fail to realize that filing a complaint usually ends in no relief. The ABA can take licensing action against a defense lawyer, but cannot affect the outcome of a judgment. He explained two things lawyers do that are unique to the profession. He discussed ethics issues and rule violations. He referred to cases in the newspapers that involve conduct that is clearly wrong. He stressed that if a liaison indicates that an investigation should be opened, it is opened. He noted that the court has never reversed a decision made by the ABA. 2:19:13 PM CHAIR COGHILL observed that the ABA is the single place for credentialing to practice law and yet the state seems to have a hand in it without having full authority. 2:19:56 PM SENATOR WIELECHOWSKI disclosed that he is a member of the Alaska Bar Association. CHAIR COGHILL commented that he has served on the Senate Judiciary Committee with many members of the ABA. He noted the importance of ABA membership to Alaskans. LINDA LORD-JENKINS, State Ombudsman, Office of the Ombudsman, commented that her office is looking for legislative guidance on SB 72. [CHAIR COGHILL held SB 72 in committee.]