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.