HB 92 - JURISDICTION OF OMBUDSMAN: VICTIMS RTS  9:32:57 AM CHAIR MCGUIRE announced consideration of HB 92. BEN MULLIGAN, Staff, to Representative Stoltze, bill co-sponsor, introduced the bill to the committee. The bill would remove the Office of Victims Rights (OVR) from the Ombudsman's jurisdiction. When the OVR was created it was meant to act as a sister agency to the Ombudsman. The reason for this bill is to remove a potential conflict between the two offices. For example, the Ombudsman could be representing an incarcerated individual and ask the OVR for information about that individual's victim. 9:34:37 AM LINDA LORD-JENKINS, Ombudsman, Anchorage, testified that she is opposed to the bill. She recognizes the importance of the work done by the OVR and referrals are routinely made to them if it appears they are better suited to handle a complainant's issues. This legislation is a result of a complainant's dissatisfaction with OVR action. MS. LORD-JENKINS stated that OVR has taken the position that their office is a special Ombudsman for crime victims. This position is contrary to every public statement of mission previously made by OVR. Arguments that Ombudsman oversight would add an unnecessary layer of investigation or reverse an OVR decision reflects a misunderstanding of her office's function. Investigation of OVR actions and whether they comply with their own statutes and regulations is what is considered. OVR functions do not require exemption from Ombudsman jurisdiction. MS. LORD-JENKINS also said Ombudsman oversight does not present a huge burden of labor for OVR. In the years since OVR was created, The Ombudsman has received only two complaints against the agency. Additionally an agency cannot be forced to take an action. If an investigation "reveals arbitrary and capricious exercises of discretion based on improper or irrelevant grounds" then the Ombudsman is authorized to recommend alternate courses of action. MS. LORD-JENKINS' concern is if the Ombudsman doesn't have jurisdiction to investigate complaints against OVR who does. OVR has asserted that complainants can protest to the Alaska Bar Association. However, the bar investigates ethical complaints not allegations about the completeness of an investigation. Ombudsman review of the statutes indicates OVR's assertion that the legislature has authority to investigate complaints against OVR is not entirely correct. Alaska statute 24.65.110(d) requires that no confidential information be released to any person. Before the legislature determines that OVR should be removed from Ombudsman jurisdiction, a legal opinion should be requested. MS. LORD-JENKINS said the question has been raised that the Ombudsman has a conflict of interest when investigating OVR complaints because the Ombudsman accepts complaints from inmates against the Department of Corrections. The number of complaints filed by inmates is large but the Ombudsman does not advocate for inmates. The Ombudsman's role is to determine if a state agency action is fair and reasonable. Additionally, mechanisms are in place to prevent a conflict between an OVR represented victim and a person accused of the crime. Ms. Lord-Jenkins strongly encourages rejecting the bill. 9:44:49 AM SENATOR BUNDE asked if this bill originates from a single case. MS. LORD-JENKINS answered yes. SENATOR FRENCH commented that AS 24.55.100 authorizes the Ombudsman to investigate the administrative acts of agencies. Investigation of the governor, lieutenant governor, a member of the legislature, and justices of the Supreme Court are excluded. He asked if this bill would add the Office of Victims Rights to that list of excluded offices. MS. LORD-JENKINS answered yes. SENATOR FRENCH asked if individuals with complaints against defense or prosecuting attorneys had the right to be heard by the Ombudsman. MS. LORD-JENKINS answered yes, the Ombudsman has jurisdiction over the Department of Law. 9:46:48 AM SENATOR FRENCH referred to the sponsor statement that says, "The OVR is staffed by attorneys with specialized knowledge; the Ombudsman is not. This raises the question of 'institutional competency' when the Ombudsman lacks that special legal knowledge necessary to investigate." He noted that the Ombudsman is already overseeing legal decisions and asked how many years this has been the case. MS. LORD-JENKINS answered since the office was formed in 1975. SENATOR FRENCH asked who would handle a complaint against OVR actions if this bill passed. MS. LORD-JENKINS answered she did not know. 9:49:46 AM KATE BERKHARDT, Assistant Ombudsman, Juneau, said if this bill passed OVR would be immune from all oversight. An individual could complain about OVR to their legislator but statutes ensuring confidentiality would prevent OVR from providing information to the legislator investigating the complaint. KATHY HANSEN, Victims Advocate Attorney, Office of Victims Rights, Anchorage, said Ms. Lord-Jenkins is mistaken about the statutory role and obligations of the OVR. Alaska statute 24.65 assigned advocacy and ombudsman duties to the Office of Victims Rights. The Court of Appeals held that the OVR is the special Ombudsman for crime victims in Alaska. If HB 92 does not pass an Ombudsman will have the authority to investigate an Ombudsman. OVR's position is that would be an unnecessary layer of oversight and waste of resources. If there is a question about OVR's statutory authority the place to address it is in AS 24.65. MS. HANSEN said she is concerned that if HB 92 does not pass victims might go to the Ombudsman or the OVR for help and they might obtain different findings. Ombudsman findings might not be based on a complete understanding of the criminal justice system. She said legislative intent in AS 24.65 was to give the OVR director final discretionary decision on cases that come before them. Even superior court judges cannot review the discretionary decisions of the OVR. All the court can do is hear complaints that OVR is not following its own statutory requirements. MS. HANSEN said provisions in AS 24.65.200 exempt OVR from subpoena or discovery of privileged information. Even the Ombudsman is prohibited from access to privileged information held by the OVR. The simple fix is to pass HB 92. If the legislature decides it wants the Ombudsman to have oversight over OVR, AS 24.55 will need to be substantially restructured. 9:58:27 AM CHAIR MCGUIRE said her concern is for an individual to retain access to the complaint process. The senator feels if this bill passes, an individual's rights may get quashed. MS. HANSON responded that protecting those rights is an important concern. ORV already has greater protections in place for crime victims than the Ombudsman. Because the OVR is staffed by bar certified attorneys they operate under Alaska Bar Association ethical standards. If a client is dissatisfied with the way a case is investigated they can go to the bar association or to their legislator for assistance. 10:00:58 AM CHAIR MCGUIRE announced HB 92 would be set aside for further discussion.