21 AAC — Ombudsman

Chapter 10 Office Management

Article 1 Business Offices and Hours

21 AAC 10.010 Offices

The ombudsman will maintain business offices in Anchorage and Juneau.

History

Authority: AS 24.55.090
Eff. 9/16/84, Register 91; am 6/7/2015, Register 214

21 AAC 10.020 Hours

Repealed.

History

Eff. 9/16/84, Register 91; repealed 6/7/2015, Register 214

Article 2 Procurement

21 AAC 10.070 Adoption of legislative procurement procedures

(a) The Office of the Ombudsman adopts the Alaska Legislative Procurement Procedures, revised as of November 21, 2013, as amended from time to time, and adopted by reference, except as otherwise provided in this section.

(b) For purposes of this section, "procurement officer" means the appointed ombudsman or a person designated by the ombudsman to carry out a procurement.

(c) Competitive procurement procedures do not apply to a contract for an investigation under AS 24.55.100, including professional services of an investigator or expert hired for work on an ombudsman investigation. However, a copy of the contract for an investigation shall be included in the ombudsman's procurement files after the investigation is closed.

(d) Contracts must be authorized by the ombudsman, and shall be approved as to form by legislative legal counsel.

(e) For procurements made by the Office of the Ombudsman, documents required to be maintained under the Alaska Legislative Procurement Procedures will be maintained by the Office of the Ombudsman.

(f) The ombudsman will issue any written decision on a protest or contract controversy, regardless of whether the ombudsman or the ombudsman's designee was the procurement officer.

History

Authority: AS 24.55.275
Eff. 6/7/2015, Register 214

21 AAC 10.080 Use of legislative affairs agency

The procurement officer may request the Legislative Affairs Agency to carry out the solicitation responsibilities under this chapter.

History

Authority: AS 24.55.275
Eff. 6/7/2015, Register 214

21 AAC 10.095 Purpose

Repealed.

History

Eff. 11/10/88, Register 108, repealed 6/7/2015, Register 214

21 AAC 10.100 Application

Repealed.

History

Eff. 11/10/88, Register 108; repealed 6/7/2015, Register 214

21 AAC 10.110 Requests for proposals

Repealed 11/10/88.

21 AAC 10.115 Nondiscrimination in source selection

Repealed.

History

Eff. 11/10/88, Register 108; repealed 6/7/2015, Register 214

21 AAC 10.120 Aggrieved respondents

Repealed 11/10/88.

21 AAC 10.125 Authority to make small procurements

Repealed.

History

Eff. 11/10/88, Register 108; repealed 6/7/2015, Register 214

21 AAC 10.130 Contract award

Repealed 11/10/88.

21 AAC 10.135 Procedure for small procurements of supplies, services, or construction between $500 and $5,000

Repealed.

History

Eff. 11/10/88, Register 108; repealed 6/7/2015, Register 214

21 AAC 10.140 Evaluation

Repealed 11/10/88.

21 AAC 10.145 Procedure for procurement of professional services between $5,000 and $25,000

Repealed.

History

Eff. 11/10/88, Register 108; repealed 6/7/2015, Register 214

21 AAC 10.150 Filing

Repealed 11/10/88.

21 AAC 10.155 Conditions for use of sole source procurement

Repealed.

History

Eff. 11/10/88, Register 108; repealed 6/7/2015, Register 214

21 AAC 10.160 Definition

Repealed 11/10/88.

21 AAC 10.165 Contract award

Repealed.

History

Eff. 11/10/88, Register 108; repealed 6/7/2015, Register 214

21 AAC 10.170 Legal and contractual remedies

Repealed.

History

Eff. 11/10/88, Register 108; repealed 6/7/2015, Register 214

21 AAC 10.180 Evaluation

Repealed.

History

Eff. 11/10/88, Register 108; repealed 6/7/2015, Register 214

21 AAC 10.190 Procurement files

Repealed.

History

Eff. 11/10/88, Register 108; repealed 6/7/2015, Register 214

21 AAC 10.195 Definitions

Repealed.

History

Eff. 11/10/88, Register 108; repealed 6/7/2015, Register 214

Article 3 Records

21 AAC 10.200 Records of complaints and investigations

Repealed.

History

Eff. 9/16/84, Register 91; repealed 6/7/2015, Register 214

21 AAC 10.210 Complaint summaries

Repealed.

History

Eff. 9/16/84, Register 91; repealed 6/7/2015, Register 214

21 AAC 10.220 Employee records

The provisions of AS 39.25.080 apply to personnel records of the office. Personnel records of the office of the ombudsman that are required to be kept confidential under AS 39.25.080 are not open for examination or inspection by the public, a federal or state agency, or a political subdivision of the state.

History

Authority: AS 24.55.080; AS 39.25.080
Eff. 9/16/84, Register 91

Article 4 Grievances

21 AAC 10.300 Grievances

A complainant or an agency may file a grievance with the ombudsman. The grievance must be in writing and may include

(1) the grievant's objection to a decision to decline or discontinue investigation of a complaint;

(2) an allegation of undue delay in the investigation of a complaint;

(3) a specification of error or omission in the investigation of a complaint; or

(4) an allegation of discourteous behavior by a member of the staff of the office of the ombudsman during the course of investigation of a complaint.

History

Authority: AS 24.55.090
Eff. 9/16/84, Register 91

21 AAC 10.305 Time limit for filing

The ombudsman will not investigate the merits of a grievance if the action or inaction complained of took place more than one year before the filing of the grievance.

History

Authority: AS 24.55.090
Eff. 6/7/2015, Register 214

21 AAC 10.310 Response to grievance

The ombudsman will respond in writing to a grievance filed under 21 AAC 10.300 within 20 days after receipt of the grievance.

History

Authority: AS 24.55.090
Eff. 9/16/84, Register 91

21 AAC 10.320 Grievance file

(a) The ombudsman shall maintain a file of grievances against the ombudsman and ombudsman's staff, including the ombudsman's response to each grievance. The grievance file is confidential to the extent that it contains material that may not be disclosed under AS 24.55.160, including the identity of a complainant unless the complainant has consented to the disclosure. The ombudsman may make a redacted copy of a grievance and the response available to the legislature or the public upon request.

(b) The ombudsman shall prepare public summaries of the grievances filed under 21 AAC 10.300, and make the summaries available upon request. The public summaries may not contain information identifying a complainant and may not contain a confidential record obtained from an agency.

History

Authority: AS 24.55.090; AS 24.55.160
Eff. 9/16/84, Register 91; am 6/7/2015, Register 214

Chapter 20 Investigations

Article 1 Receiving and Processing Complaints

21 AAC 20.010 Subjects excluded from investigation

Repealed.

History

Eff. 9/16/84, Register 91; am 3/28/86, Register 97; repealed 6/7/2015, Register 214

21 AAC 20.020 Complaints

Repealed.

History

Eff. 9/16/84, Register 91; repealed 6/7/2015, Register 214

21 AAC 20.030 Anonymous complaints

Repealed.

History

Eff. 9/16/84, Register 91; am 3/28/86, Register 97; repealed 6/7/2015, Register 214

21 AAC 20.040 Declining a complaint

Repealed.

History

Eff. 9/16/84, Register 91; repealed 6/7/2015, Register 214

21 AAC 20.050 Resolution without investigation

Repealed.

History

Eff. 9/16/84, Register 91; repealed 6/7/2015, Register 214

Article 2 Conducting an Investigation

21 AAC 20.100 Priority for investigating complaints

Repealed.

History

Eff. 9/16/84, Register 91; am 3/28/86, Register 97; repealed 6/7/2015, Register 214

21 AAC 20.105 Preliminary examination of complaint

Repealed.

History

Eff. 3/28/86, Register 97; repealed 6/7/2015, Register 214

21 AAC 20.110 Notice of investigation

Repealed.

History

Eff. 9/16/84, Register 91; repealed 6/7/2015, Register 214

21 AAC 20.120 Hearing

Repealed.

History

Eff. 9/16/84, Register 91; repealed 6/7/2015, Register 214

21 AAC 20.130 Testimony under subpoena

Repealed.

History

Eff. 9/16/84, Register 91; am 3/28/86, Register 97; repealed 6/7/2015, Register 214

21 AAC 20.140 Production of information or records

Repealed.

History

Eff. 9/16/84, Register 91; am 3/28/86, Register 97: repealed 6/7/2015, Register 214

21 AAC 20.150 Status reports

Repealed.

History

Eff. 9/16/84, Register 91; repealed 6/7/2015, Register 214

21 AAC 20.160 Conflicts

Repealed.

History

Eff. 3/28/86, Register 97; repealed 6/7/2015, Register 214

Article 3 Concluding an Investigation

21 AAC 20.200 Discontinuing an investigation

Repealed.

History

Eff. 9/16/84, Register 91; am 3/28/86, Register 97; repealed 6/7/2015, Register 214

21 AAC 20.205 Report of investigation alleging misconduct by agency personnel

Repealed.

History

Eff. 3/28/86, Register 97; repealed 6/7/2015, Register 214

21 AAC 20.210 Completed investigations: preliminary report to agency

Repealed.

History

Eff. 9/16/84, Register 91; am 3/28/86, Register 97; repealed 6/7/2015, Register 214

21 AAC 20.220 Modification of finding or opinion

Repealed.

History

Eff. 9/16/84, Register 91; am 3/28/86, Register 97; repealed 6/7/2015, Register 214

21 AAC 20.230 Agency response

Repealed.

History

Eff. 9/16/84, Register 91; repealed 6/7/2015, Register 214

21 AAC 20.240 Investigation, conclusion, and final report

Repealed.

History

Eff. 9/16/84, Register 91; am 3/28/86, Register 97; repealed 6/7/2015, Register 214

21 AAC 20.250 Complainant to be informed

Repealed.

History

Eff. 9/16/84, Register 91; repealed 6/7/2015, Register 214

Article 4 Confidential Information

21 AAC 20.300 Disclosure of confidential information

Repealed.

History

Eff. 9/16/84, Register 91; repealed 6/7/2015, Register 214

21 AAC 20.310 Disclosure with written consent

Repealed.

History

Eff. 9/16/84, Register 91; repealed 6/7/2015, Register 214

21 AAC 20.320 Disclosure of information from public sources

Repealed.

History

Eff. 9/16/84, Register 91; repealed 6/7/2015, Register 214

21 AAC 20.330 Disclosure as statistical information

Repealed.

History

Eff. 9/16/84, Register 91; repealed 6/7/2015, Register 214

21 AAC 20.340 Disclosure to agency

Repealed.

History

Eff. 9/16/84, Register 91; repealed 6/7/2015, Register 214

21 AAC 20.350 Assertion of privacy interest by agency

Repealed.

History

Eff. 9/16/84, Register 91; repealed 6/7/2015, Register 214

21 AAC 20.360 Disclosure to the complainant

Repealed.

History

Eff. 9/16/84, Register 91; repealed 6/7/2015, Register 214

21 AAC 20.370 Disclosure to governor, legislature, or grand jury

Repealed.

History

Eff. 9/16/84, Register 91; repealed 6/7/2015, Register 214

21 AAC 20.380 Public disclosure

Repealed.

History

Eff. 9/16/84, Register 91; repealed 6/7/2015, Register 214

21 AAC 20.390 Definitions

Repealed.

History

Eff. 9/16/84, Register 91; repealed 6/7/2015, Register 214

Chapter 25 Complaint Intake and Ombudsman Investigations

Article 1 Receiving and Evaluating Complaints

21 AAC 25.010 Form of Complaint

(a) Unless requested by the ombudsman, a complaint need not be in writing, except that a complaint alleging misconduct by an agency employee or official must be in writing and signed by the complainant.

(b) The ombudsman may request that the complainant provide a written complaint if

(1) the ombudsman's resources are insufficient to allow the ombudsman to receive all complaints by telephone or in person; or.

(2) the ombudsman believes that reducing the complaint to writing will assist the ombudsman in effective evaluation of the complaint.

(d) The ombudsman may request that the complainant provide copies of correspondence or other records in the complainant's possession to assist the ombudsman in evaluation of the complaint.

(e) The ombudsman may assist the complainant in reducing a complaint to writing. However, the complainant must review and sign the complaint. The complainant may review the written complaint by reading it or having it read aloud, or by any other means that enables the complainant to understand the written complaint.

(f) If the complainant has difficulty communicating the complaint due to a disability or a language barrier, the ombudsman shall make reasonable accommodations to facilitate communication with the complainant, including the use of a professional interpreter.

(g) For purposes of this section, "misconduct" means conduct that could be prosecuted as a crime; that violates the Executive Branch Ethics Act, AS 39.52, or an equivalent ethics code applicable to the officer or employee; or that constitutes willful disregard for the officer's or employee's responsibilities;

History

Authority: AS 24.55.090
Eff. 6/7/2015, Register 214

21 AAC 25.020 Confidentiality of complaint and disclosures necessary for investigation

Prior to investigation, the ombudsman shall ask the complainant for consent to disclose the complainant's identity and relevant information to the agency or agencies that are the subject of the complaint. Consent may be verbal, but must be documented by the ombudsman. The ombudsman has the discretion to request that the complainant provide written, signed consent to the disclosures.

History

Authority: AS 24.55.090; AS 24.55.160
Eff. 6/7/2015, Register 214

21 AAC 25.030 Anonymous complaints

The ombudsman will decline to investigate an anonymous complaint, unless it is accompanied by specific, credible information that the ombudsman reasonably believes can be corroborated and that would justify investigation upon the ombudsman's own motion. The ombudsman may refer an anonymous complaint accompanied by specific, credible information to the chief executive officer of the affected agency, the district attorney, or law enforcement.

History

Authority: AS 24.55.090; AS 24.55.110
Eff. 6/7/2015, Register 214

21 AAC 25.040 Third party complaints

The ombudsman will not accept a complaint made on behalf of another person, unless the complainant is authorized by law to act on behalf of that person in regard to the ombudsman complaint, or unless the ombudsman reasonably believes that the person is incapable of personally filing the complaint and that the complainant has a legitimate interest in acting on the person's behalf.

History

Authority: AS 24.55.090; AS 24.55.110
Eff. 6/7/2015, Register 214

21 AAC 25.050 Initial evaluation of complaint

(a) Within 30 days of receipt of a complaint, unless the time is extended to obtain additional information from the complainant, the ombudsman will determine whether to accept the complaint for further investigation or decline the complaint. If the ombudsman declines investigation of the complaint, the ombudsman will notify the complainant of the reasons.

(b) The ombudsman may extend the 30 days for a reasonable time in order to request additional information from the complainant as provided in 21 AAC 25.010(d).

History

Authority: AS 24.55.090; AS 24.55.130
Eff. 6/7/2015, Register 214

21 AAC 25.060 Declining a complaint

(a) The ombudsman will decline to investigate a complaint for any of the following reasons:

(1) the complaint does not involve an administrative act, as defined in AS 24.55, by an agency within the jurisdiction of the ombudsman;

(2) the merits of the complaint are the subject of a judicial proceeding pending at the time the ombudsman receives the complaint;

(3) investigation of the complaint would require the ombudsman to make findings on a matter already decided by a court;

(4) the complainant is an employee who is represented by a union, and the collective bargaining agreement provides the sole dispute resolution process to decide the merits of the complaint, regardless of whether the union chooses to pursue all steps of a grievance on behalf of the complainant;

(5) the ombudsman reasonably believes that the complaint cannot be investigated or resolved without disclosing the complainant's identity, or other information provided by the complainant, and the complainant refuses to consent to the disclosure.

(b) The ombudsman may decline to investigate a complaint for any of the following reasons:

(1) the ombudsman believes the complainant has not given the agency a reasonable opportunity to remedy the complaint;

(2) the substance of the complaint is the subject of a pending administrative appeal or administrative hearing at the time the ombudsman receives the complaint, or the ombudsman determines that the merits of the complaint may be more appropriately resolved by an administrative hearing or administrative appeal for which the complainant may make timely application;

(3) the ombudsman determines that applicable law or administrative procedures provided a remedy for the complainant that appeared adequate under the circumstances, and the complainant neither made use of that remedy nor provided a reasonable explanation for the failure to do so;

(4) the complaint is filed by or on behalf of a municipality that employs a municipal attorney or that retains the services of an attorney for general legal counsel;

(5) the complainant does not demonstrate a personal interest in the complaint distinguishable from the interest of any membcr of the general public;

(6) the ombudsman requests that the complainant provide information or records to assist the ombudsman in evaluating the complaint, as provided in 21 AAC 25.010(d), but the complainant fails to provide the information or records within a reasonable time specified by the ombudsman;

(7) the ombudsman determines that investigation of the complaint will require specialized expertise that the ombudsman does not have and cannot readily obtain, taking into account the funds available to the ombudsman;

(8) the complainant's requested remedy for the complaint is impractical, unreasonable, or the complainant does not request a remedy, and the ombudsman concludes that investigation of the complaint is unlikely to yield a remedy that will assist either the complainant or the general public.

(d) Under AS 24.55.110(3), the ombudsman will consider "an unreasonable length of time" to be any time over a year, unless the ombudsman concludes that severe injustice to the complainant would result from enforcing the one year time limit.

History

Authority: AS 24.55.090; AS 24.55.100; AS 24.55.110
Eff. 6/7/2015, Register 214

21 AAC 25.070 Priorities for investigation

When the ombudsman's resources are insufficient for adequate investigation due to the number of pending complaints, the ombudsman will consider the following priorities for selecting complaints for investigation:

(1) complaints alleging an emergency in which delay would subject the complainant to a substantial risk of serious and irreparable harm;

(2) complaints alleging prejudice, harm, or disadvantage for which the ombudsman believes that the possibility of an effective remedy requires investigation with minimal delay;

(3) complaints alleging recurring prejudice, harm, or disadvantage to multiple persons due to an administrative act;

(4) complaints alleging a single or isolated instance of prejudice, harm, or disadvantage that has already occurred and thus cannot be prevented by an ombudsman's investigation.

History

Authority: AS 24.55.090; AS 24.55.110
Eff. 6/7/2015, Register 214

Article 2 Investigation of Complaints

21 AAC 25.100 Notice to agency

When the ombudsman's accepts a complaint for investigation, the ombudsman will notify the agency that is the subject of the complaint of the investigation unless notice is delayed under AS 24.55.140. The ombudsman will provide notice to the agency staff that the ombudsman identifies as best able to address the issues raised in the complaint.

History

Authority: AS 24.55.090; AS 24.55.140
Eff. 6/7/2015, Register 214

21 AAC 25.110 Resolution of complaint during investigation

(a) During an investigation, the ombudsman may request the cooperation of the agency that is the subject of the complaint, in order to provide a remedy for the complaint by persuading the agency to act or to reconsider action already taken; or, if no remedy is warranted under the circumstance, by providing the complainant with an explanation of the administrative act.

(b) If the agency's cooperation facilitates resolution of the complaint, the ombudsman may close the complaint without completing an investigative report. However, the ombudsman may proceed with an investigative report if the complaint presents systemic issues not resolved by a remedy for the individual complainant.

History

Authority: AS 24.55.090; AS 24.55.150
Eff. 6/7/2015, Register 214

21 AAC 25.120 Notice of status of complaint

(a) No later than 90 days after acceptance of a complaint for investigation, the ombudsman will notify both the complainant and the agency that is the subject of the complaint of the status of the complaint, unless

(1) the ombudsman reasonably believes that grounds exist for withholding notice to the agency under AS 24.55.140; or

(2) the ombudsman is unable to contact the complainant, despite reasonable efforts to do so.

(b) The ombudsman will provide additional status updates when requested by the complainant or the agency, and will inform the complainant and the agency when the complaint is closed.

History

Authority: AS 24.55.090; AS 24.55.130; AS 24.55.140
Eff. 6/7/2015, Register 214

21 AAC 25.130 Grounds for discontinuing investigation of a complaint

(a) The ombudsman will close a complaint without further investigation for any of the following reasons:

(1) the complainant becomes a party to a judicial proceeding that may address all of the allegations that are being investigated by the ombudsman;

(2) the merits of the complaint have become the subject of a court decision, such that further investigation by the ombudsman would require the ombudsman to make findings on an issue ruled upon by the court;

(3) the complainant withdraws permission for the ombudsman to contact agency staff; refuses to grant the ombudsman permission to discuss the complaint with other individuals who the ombudsman believes may have information relevant to the investigation, or otherwise prevents adequate investigation of the complaint.

(b) The ombudsman may close a complaint without further review or investigation for any of the following reasons:

(1) the complainant or the agency becomes a party to an administrative hearing or appeal that may provide a remedy for the complaint;

(2) the ombudsman determines that there is insufficient evidence to support the allegations in the complaint, and that further investigation is unlikely to yield additional relevant evidence;

(3) the ombudsman determines that efforts to resolve the complaint during the investigation have failed, and further investigation is unlikely to result in recommendations that will provide a remedy for the complainant or improve public administration;

(4) the ombudsman determines that investigation of the complaint will require specialized expertise that the ombudsman does not have and cannot readily obtain, taking into account the funds available to the ombudsman;

(5) the complaint alleges misconduct by an officer or employee of an agency, and the ombudsman has referred the complaint to the chief executive officer of the agency, the district attorney, or to law enforcement for further investigation;

(6) the complainant withdraws the complaint, or fails to maintain current contact information with the ombudsman and cannot be contacted through reasonable efforts;

(7) the ombudsman determines that the complaint no longer meets the ombudsman's priorities for investigation under 21 AAC 25.070;

(8) The ombudsman determines that investigation of the complaint should have been declined for a reason stated in AS 24.55.110 or 21 AAC 25.060.

History

Authority: AS 24.55.090; AS 24.55.110; AS 24.55.220
Eff. 6/7/2015, Register 214

21 AAC 25.140 Conflicts of interest

(a) If the ombudsman determines that evaluation or investigation of a complaint by a member of the ombudsman's staff involves a conflict of interest or the appearance of a conflict of interest, then the ombudsman will assign the complaint to another staff member, and the conflicted staff member may not have any further involvement with the complaint. If, prior to the reassignment, the conflicted staff member made any decision regarding disposition of the complaint, that decision is void.

(b) If the ombudsman's own investigation of a complaint would involve a conflict of interest or the appearance of a conflict of interest, the ombudsman will delegate the investigation to a member of the ombudsman's staff and will not comment on or participate in the investigation until the delegated staff member has proposed findings and recommendations for a report under AS 24.55.190 or has discontinued the investigation. If the ombudsman then issues an investigative report under the ombudsman's signature, the report must include disclosure of the ombudsman's conflict of interest or appearance thereof.

(c) For the purposes of AS 24.55, it is not a conflict of interest for a member of the ombudsman's staff to investigate complaints in which the complainants make opposite or contradictory allegations regarding an administrative act.

History

Authority: AS 24.55.090
Eff. 6/7/2015, Register 214

21 AAC 25.150 Subpoenas

(a) A subpoena issued under AS 24.55.170 may be served by any member of the ombudsman's staff or by any person authorized under Alaska Rule of Civil Procedure 45 to serve a subpoena. Service of a subpoena upon a person named in it shall be made by delivering a copy of the subpoena to the person. Proof of service shall be established by affidavit of the person who served the subpoena at or about the time service is made. A subpoena may also be served by registered or certified mail. In such case the ombudsman shall mail the subpoena for delivery only to the person subpoenaed, and the returned delivery receipt shall be addressed so that it is returned to the ombudsman and shall constitute proof of service.

(b) The ombudsman will pay witness fees and expenses as set forth by the Alaska Rules of Court Administrative Rules. However, the ombudsman will not pay a witness fee or reimburse expenses for an employee of an agency who complies with a subpoena in the employee's official capacity, unless the employee is required to travel more than 50 miles from the employee's place of business in order to comply with the subpoena.

History

Authority: AS 24.55.090; AS 24.55.170
Eff. 6/7/2015, Register 214

21 AAC 25.160 Ombudsman access to agency records

(a) When the ombudsman requires that an agency provide records pursuant to AS 24.55.160(a)(4), the ombudsman will determine a reasonable time for production of the records. If the agency requests additional time for production of records, the ombudsman may allow additional time. However, the ombudsman will not grant additional time longer than 15 days unless the ombudsman concludes that the agency has demonstrated unusual circumstances justifying the delay.

(b) The ombudsman will not pay costs of copying or personnel time when an agency is complying with AS 24.55.160. The ombudsman may assign a member of the ombudsman's staff to search for and copy agency records, if the ombudsman anticipates that the scope of the request will place extraordinary demands upon the agency personnel.

History

Authority: AS 24.55.090; AS 24.55.160
Eff. 6/7/2015, Register 214

Article 3 Consultation and Investigative Reports

21 AAC 25.200 Consultation with agency and preliminary recommendations

(a) After investigation, the ombudsman shall consult with agency personnel if the ombudsman proposes a criticism of the agency's conduct or proposes that the agency take further action regarding the complaint. The ombudsman shall convey the basis for the ombudsman's preliminary conclusions, as well as any proposed recommendations. The consultation will include the agency employees or officers who the ombudsman believes have authority to implement the ombudsman's proposed recommendations.

(b) The ombudsman may provide the basis for the ombudsman's preliminary conclusions in writing to the agency. Such correspondence shall be labeled as "confidential pursuant to AS 24.55.180," and may not be released to the public by the ombudsman or the agency.

(c) If, after investigation, the ombudsman believes that the conduct of a specific agency employee is, more likely than not, grounds for disciplinary action against that employee, the ombudsman shall provide access to the ombudsman's preliminary conclusions and the evidence for them to that employee no less than ten days before providing the preliminary conclusions to the agency, and request a response from the employee.

(d) The ombudsman will request that the agency respond to the preliminary conclusions and suggested remedy, and set a deadline for the agency's response. The ombudsman shall allow no less than 30 days for the agency's response, unless there is convincing evidence that delay will render a remedy futile or cause serious harm to the complainant or other members of the public.

History

Authority: AS 24.55.090; AS 24.55.180
Eff. 6/7/2015, Register 214

21 AAC 25.210 Agency response to consultation

(a) If the agency's response substantially resolves the complaint and provides an appropriate remedy, then the ombudsman may discontinue further investigation and close the complaint as resolved.

(b) If the ombudsman does not close the complaint as resolved, then the ombudsman shall report the ombudsman's findings and recommendations to the agency under AS 24.55.190. The report shall be labeled as "confidential pursuant to AS 24.55.190," and may not be released to the public by the ombudsman or the agency.

History

Authority: AS 24.55.040; AS 24.55.090; AS 24.55.190 AS 24.55.070; AS 24.55.150
Eff. 6/7/2015, Register 214

Article 4 Confidential Records

21 AAC 25.300 Ombudsman complaint files

(a) The ombudsman may not provide access to or copies of working notes, files, or records received from complainants or others, except for

(1) disclosures deemed necessary to obtain additional information during an investigation or otherwise carry out the ombudsman's duties under AS 24.55, as limited by AS 24.55.160(b);

(2) access otherwise required by law, including compliance with a request by the Legislative Audit Division under AS 24.20.

(b) The ombudsman may return a record or copy of a record to the sender, and may provide a copy of correspondence previously sent to the recipient.

(c) If the ombudsman receives a request for a record provided to the ombudsman by an agency, the ombudsman shall refer the request to the agency that provided the record, unless the disclosure is consistent with (a) of this section.

History

Authority: AS 24.55.090; AS 24.55.160; AS 24.55.260
Eff. 6/7/2015, Register 214

21 AAC 25.310 Disclosure to warn of imminent danger

(a) If the ombudsman receives information that the ombudsman reasonably believes provides specific and credible evidence of imminent danger of serious physical harm to a complainant or others, then the ombudsman may disclose the information to law enforcement personnel, other emergency service providers, or the endangered individual.

(b) If a record that the ombudsman received from an agency contains information that the ombudsman reasonably believes demonstrates imminent danger of serious physical harm to a complainant or others, but the ombudsman cannot disclose the record without violating AS 24.55.160(b), then the ombudsman will contact the agency that provided the record and advise the agency to contact law enforcement or take other action to prevent the threatened harm.

History

Authority: AS 24.55.090; AS 24.55.160
Eff. 6/7/2015, Register 214

21 AAC 25.320 Confidential record received from an agency

(a) The ombudsman shall maintain a confidential record received from an agency subject to the same restrictions on disclosure that apply while the record is in the custody of the agency.

(b) If another agency would have access to a confidential record during the normal course of business, then the ombudsman may disclose the record to that agency to the same extent that it could be disclosed by originating agency.

(c) If the agency providing a confidential record informs the ombudsman that access to the record is restricted to specific employees within the agency, the ombudsman may request a written explanation of the limits on disclosure and the applicable law.

History

Authority: AS 24.55.090; AS 24.55.160
Eff. 6/7/2015, Register 214

21 AAC 25.330 Attorney-client privileged communications and attorney work product provided by an agency

(a) If an agency provides the ombudsman with attorney-client privileged communications or attorney work product, then the ombudsman shall label the records as "attorney-client privileged" or "attorney work product" and shall maintain the privileged material separately from other records received from the agency.

(b) If the ombudsman includes privileged material in correspondence to an agency, including an investigative report to that agency, the ombudsman shall

(1) label the correspondence as containing privileged material; and

(2) provide the correspondence only to agency employees entitled to receive the privileged information.

History

Authority: AS 24.55.090; AS 24.55.160
Eff. 6/7/2015, Register 214

21 AAC 25.340 Health care records

Health care records received by the ombudsman during evaluation or investigation of a complaint will be returned to the sender or destroyed within one year of the closure of the complaint, except that a health care record cited in an investigative report issued under AS 24.55.190 may be retained in the ombudsman's file.

History

Authority: AS 24.55.090; AS 24.55.160
Eff. 6/7/2015, Register 214

21 AAC 25.350 Dispute over confidentiality of agency record

(a) If an agency asserts that a record is confidential, including an assertion that a specific disclosure proposed by the ombudsman would not be permitted by law, the ombudsman may request that the agency state, in writing, the state or federal law relied upon by the agency.

(b) If the ombudsman believes that the agency's interpretation of the law is incorrect, the ombudsman will attempt to resolve the dispute. This may include requesting that the agency obtain an opinion from the Department of Law regarding the confidentiality of the disputed record. While attempting to resolve the dispute, the ombudsman shall restrict disclosure of the record in accordance with the agency's interpretation.

(c) If, after attempting to resolve the dispute, the ombudsman and the agency still disagree regarding the confidentiality of the record, the ombudsman may

(1) recommend to the agency, in a confidential investigative report, that the agency disclose the disputed record to the governor, the legislature, a grand jury, or the public, as applicable;

(2) seek a declaratory judgment in superior court to rule on the ombudsman's proposed disclosure of the record; or

(3) provide written notice to the head of the agency and to the Department of Law that the ombudsman intends to disclose the disputed record in 15 days, absent an injunction or other court order prohibiting the disclosure. The written notice will state the extent of the proposed disclosure, including whether the ombudsman proposes to include the disputed record in a public report, and the reasons that the ombudsman believes that disclosure of the record complies with AS 24.55.160(b). The ombudsman will also provide written notice to a person to whom the record pertains, at that person's last known address, to the extent that the ombudsman is reasonably able to determine the relevant persons from review of the disputed record.

History

Authority: AS 24.55.090; AS 24.55.160
Eff. 6/7/2015, Register 214

21 AAC 25.360 Information contained in both confidential agency record and public source

If the ombudsman obtains information from both a confidential agency record and a non-confidential source, the ombudsman may disclose the information in reliance upon the non-confidential source.

History

Authority: AS 24.55.090; AS 24.55.160
Eff. 6/7/2015, Register 214

Article 5 Publication by the Ombudsman

21 AAC 25.400 Public documents

In order to carry out the ombudsman's duties under AS 24.55, the following are public records:

(1) the ombudsman's reports and recommendations published under AS 24.55.200;

(2) the ombudsman's annual reports published under AS 24.55.230;

(3) public summaries and statistical information prepared under 21 AAC 25.410;

(4) records of grievances against the ombudsman, to the extent that release of grievance records is provided for under 21 AAC 10.320.

History

Authority: AS 24.55.090; AS 24.55.200 AS 24.55.160; AS 24.55.230
Eff. 6/7/2015, Register 214

21 AAC 25.410 Public summaries and statistical information

(a) The ombudsman may maintain and release summaries of closed complaints in order to assist in the management of the state government programs, respond to inquiries about the performance of state government programs, and to inform the public and the legislature about the performance of the ombudsman. The summaries may not contain information identifying a complainant, and may not contain a confidential record obtained from an agency.

(b) Release of the summary of a closed complaint must be approved by the appointed ombudsman or by an acting ombudsman empowered to carry out the ombudsman's duties specified in AS 24.55.190 and AS 24.55.200.

(c) The ombudsman may disclose information about complaints as a statistical compilation, provided that the compilation does not identify a complainant or reveal a confidential record obtained from an agency.

History

Authority: AS 24.55.090; AS 24.55.200 AS 24.55.160; AS 24.55.230
Eff. 6/7/2015, Register 214

21 AAC 25.420 Information for complainant

After the ombudsman has provided the agency with the final investigative report, the ombudsman may provide a copy of the final investigative report to the complainant, provided that the ombudsman redacts confidential information to which the complainant is not entitled. If the ombudsman concludes that the report cannot be effectively redacted, then the ombudsman may provide the complainant with a summary of the report, including the substance of any findings and recommendations, and whether the agency accepted the recommendations.

History

Authority: AS 24.55.090; AS 24.55.160; AS 24.55.210
Eff. 6/7/2015, Register 214

21 AAC 25.430 Public investigative reports

(a) The ombudsman may publish a copy of a final investigative report from which confidential information has been redacted. If the ombudsman concludes that the report cannot be effectively redacted, then the ombudsman may publish a summary of the report, including the ombudsman's findings and recommendations, and whether the agency accepted the recommendations.

(b) The ombudsman will make public reports available to the legislature, the governor, and members of the public upon request, and may also place the public reports on the ombudsman's Internet website.

History

Authority: AS 24.55.090; AS 24.55.200
Eff. 6/7/2015, Register 214

Article 6 General Provisions

21 AAC 25.510 Definitions

In this chapter, unless context requires otherwise,

(1) "ombudsman" means both the appointed ombudsman and the ombudsman's staff, except for functions specifically reserved to the appointed Ombudsman or the Acting Ombudsman under AS 24.55.070, the determination of a conflict of interest under 21 AAC 25.150, issuance of a written determination of a contract controversy or protest under 21 AAC 10, or the response to a grievance filed under 21 AAC 10.300;

(2) "person" has the same meaning as in AS 01.10.060.

History

Authority: AS 24.55.090
Eff. 6/7/2015, Register 214

21 AAC 25.520 Computation of time

For purposes of this chapter, time periods will be computed according to AS 01.10.080.

History

Authority: AS 24.55.090
Eff. 6/7/2015, Register 214

21 AAC 25.530 Notice

For purposes of this chapter, notification or notice includes either verbal or written communication, unless a regulation or statute expressly requires written notice. Written notice may be provided by letter, facsimile transmission, or electronic mail.

History

Authority: AS 24.55.090
Eff. 6/7/2015, Register 214