News Archive 2
Homeowner Objects to Rain of Steel
A Juneau couple complained that the Juneau Police Department unreasonably failed to cite hunters whose errant shots rained shotgun pellets on their home. In one incident, steel pellets fell on the husband, but did not injure him.
The couple was further angered by a report on the incidents issued by the City and Borough of Juneau’s Attorney’s Office. The couple argued that the report overlooked the potential danger of shotgun pellets and was designed to excuse continued bird hunting near residential areas bordering the Mendenhall Wetlands State Game Refuge.
The ombudsman found that the police responded to the incident in a reasonable and professional manner. However, the ombudsman took aim at the Attorney’s Office report, finding that it downplayed the potential danger from shotgun pellets fired even from distances of 150 yards or more. Since the issue of safety was central to the complainant’s concerns, the ombudsman found that the Attorney’s Office had based its report on improper grounds. The complaint prompted agencies involved in bird hunting on the refuge to redouble their efforts, through education and other means, to keep hunters from shooting toward residential areas.
A building owner complained that he was being iced out of the market when he attempted to rent his building to the state. The ombudsman found that the Division of General Services (DGS) had a reasonable explanation for its initial decision to rent another building. However, when the building owner was not notified during a second search for rental space, the ombudsman found serious problems with DGS operations.
DGS claimed that the complainant was not notified of the second request for proposals because the second rental was an emergency procurement. They claimed they did not have time to follow the rules that normally apply. State procurement codes allow agencies to take short-cuts in the process when an emergency exists.
The ombudsman found, however, that the emergency was created by DGS’s inaction. DGS knew for months that its lease was expiring on a building that had health and safety problems. The ombudsman recommended, among to other things, that DGS make use of internet technology to notify potential bidders, even for emergency procurements.
The licensing form used by the Division of Occupational Licensing did not delve deeply enough into professional conduct, and allowed a chiropractor to be licensed in Alaska within months of being disciplined in another state for sexual contact with a minor.
The chiropractor, who applied for an Alaska license two weeks before his suspension took effect in another state, was subsequently licensed in Alaska and practiced here for 20 years. The form was worded in such a way that the chiropractor answered all the questions truthfully, yet never revealed the disciplinary action that would have disqualified him from practice in Alaska.
The ombudsman recommended that the division rewrite the licensing renewal form to prevent this kind of occurrence. The division accepted the recommendation.
A woman who sought to lodge a complaint with the Medical Board against a physician balked at signing a release of information form that included personal, non-medical information. She said an investigator told her such information was necessary to determine whether she had a vendetta against the physician. Although the investigator told her she could cross out the elements to which she objected, the woman complained to the ombudsman. She said she lost faith in the agency’s ability to objectively investigate her complaint.
After checking with other medical board investigators in western states, the ombudsman found that Alaska’s release of information form was unreasonably broad. The ombudsman recommended that the agency develop a new form, send a copy to the complainant, and invite her to re-submit her complaint. The agency accepted the finding and agreed to revise the form.
Funding Delay Sinks Survey
An Alaska businesswoman complained to the ombudsman that a state solicitation for bathymetric surveys, for which her company was the apparent low bidder, had been cancelled after her company had obligated itself financially to reserve the surveying equipment. She said she believed the Department of Fish & Game (ADF&G) cancelled the solicitation because it preferred another bidder. She doubted ADF&G’s explanation that federal funding had not been approved in time to perform the survey.
Investigation showed that the project relied on a substantial amount of funding from the U.S. Geological Survey (USGS). ADF&G documents showed that USGS did not return the cooperative agreement until after the scheduled survey period in 2000. The Invitation to Bid warned prospective bidders that funding had not yet been secured for the project and cautioned them against incurring costs until they had received a signed contract from the state. The ombudsman found the businesswoman’s allegations not supported by the evidence.
A woman arrested on a misdemeanor warrant complained that personnel at the Sixth Avenue Correctional Center failed to credit her with more than $600 she brought with her when arrested. A videotape of the centers property inventory on the night in question was damaged or erased and was not available as evidence in this investigation. The ombudsman found no evidence supporting the complainants claim that she had hundreds of dollars with her or that corrections staff mishandled or stole her money. The ombudsman criticized the agency, however, for failing to safeguard the videotape of the property inventory.
A licensed professional complained that a state licensing board and the Division of Occupational Licensing (Licensing) failed to honor legitimate continuing education credits and denied his application for license renewal. He further alleged that the president of the licensing board had a personal grudge against him and was using his position on the board to harass him and his business.
Investigation showed that Licensing had never denied the complainants license but only requested more information about the continuing education courses before approving his application. The complainant suffered no lapse in licensure. Although the board president and the complainant had a personal dispute, evidence did not support allegations that the president used his position to harass the complainant. All allegations against Licensing, the board, and the board president were found not supported as a result of the investigation.
DFYS does not retain records of substantiated cases of child abuse long enough to adequately administer its regulations, which prohibit anyone alleged to be a child abuser from working or living at a childcare facility.
This was revealed through investigation of a complaint from a man who was kept from working at a licensed childcare facility because DFYS said its records showed he abused his child nine years ago. This the man denied. DFYS destroys its records of such incidents after four years, even though its regulations ban alleged child abusers from childcare facilities for life. Consequently, the agency could not produce more than a computer entry in its case management system to support its decision. That entry included the child’s name, indicated the report of abuse was substantiated, but failed to name an alleged perpetrator.
The Ombudsman found that DFYS erred in using that incomplete and contested record to keep the man from working with children. The Ombudsman pointed out that any concerns DFYS had about the man’s fitness could be addressed through other regulations. The agency accepted the Ombudsman’s recommendations to revise its records retention schedule and to develop appropriate procedures for reviewing employees at state licensed childcare facilities.
A Fairbanks man applied to purchase a three-acre parcel in a 1984 offering of remote state land. Over the next ten years he paid a small annual lease fee and paid $1,900 to have the land surveyed as required under the program. However, when it came time to complete the sale, the Alaska Division of Lands and Water Management (ADL) could not contact him. From late 1995 until early 1997, ADL sent the complainant three certified letters and several first class letters to remind him that he still owed $75. The letters were returned unclaimed. Unable to contact the complainant, ADL terminated the purchase agreement in February 1997 and forfeit the monies he had already paid.
Nearly two-and-a-half years later, the purchaser learned he had lost his rights to the property when he attempted to pay his borough property tax. He appealed to ADL but was told the purchase agreement was terminated long ago and nothing could be done about it now.
The Ombudsman found that ADL had done more than regulations required in attempting to contact the complainant. However, the Ombudsman recognized that the complainant fully intended to complete the purchase, in which he had already invested about $2,500. In light of this, ADL proposed reinstating the purchase agreement if the purchaser would pay the remaining $75 and provide title information. This agreement was accepted by the man, who appeared with the money almost immediately.
When Mitchell Majtyka registered the business name Explore Alaska with Division of Banking, Securities and Corporations (DBSC), he believed that he was gaining exclusive rights to the name as defined in Alaska Statute 10.35.40. Later, after another Wasilla businessman registered the name Explore Alaska Tour Company, Mr. Majtyka asked DBSC to deny his business rival the right to use the name because it was deceptively similar to his business name. Deceptively similar is a legal principle used in Alaska statutes that determines name availability for businesses.
The Department of Commerce and Economic Development (DCED), rejected Majtykas request saying that the words Tour Company in Explore Alaska Tour Company were by DBSC regulations key words, and this made the two business names distinguishable, not deceptively similar.
In response to this complaint and a pending lawsuit on a similar business name dispute, the division changed its stance on what was deceptively similar and promised not to renew the rival business name when it expires. Therefore, the Ombudsman finds this allegation justified and rectified. DBSC accepted the finding.
Partly because of the lawsuit and Majtykas complaint, DBSC recognized that the laws governing name registration were untenable. In a 1999 report to the legislature, DBSC recommended that the legislature eliminate deceptively similar from state statutes and replacing it with distinguishable on the record. The 21st Legislature subsequently passed legislation making these recommended changes.
The Department of Public Safety has agreed to ask the Attorney General to review the sort of information that DPS can post in Alaska Public Safety Information Network (APSIN) as a result of an ombudsman investigation into a citizen’s complaint. The complainant alleged that APSIN contained and disseminated incorrect information that the complainant had the HIV/AIDS virus.
The complainant said that Anchorage police served a bench warrant on the complainant and after placing the complainant in the police cruiser, asked the complainant’s spouse if the complainant had AIDS. The officer stated that his computerized information stated the complainant had the lethal virus.
The complainant told the Ombudsman that several medical tests over the past five years proved that the complainant did not have the virus. The Ombudsman confirmed with APSIN that the AIDS information was contained on the complainant’s record. After the Ombudsman contacted DPS Commissioner Ron Otte, the agency removed the medical information field from all APSIN entries.
The ombudsman found the allegation supported by the facts and recommended that DPS seek an attorney general opinion on the types of medical information that could be considered to serve a legitimate law enforcement purpose if included on APSIN. Examples of such information include mental illnesses and dysfunction such as schizophrenia and autism, and contagious medical illness such as tuberculosis.
The ombudsman also recommended that DPS issue notices to instruct all law enforcement agencies with APSIN access on their statutory responsibilities to keep confidential APSIN information. Further, the Ombudsman recommended that DPS request Anchorage Police Department to conduct an internal review of the release of the AIDS information. DPS accepted both of the recommendations.
A client of the Division of Senior Services (DSS) complained to the Ombudsman that pleas for assistance were being ignored and that the agency refused to provide the complainant with a new care coordinator to replace one who had quit. Investigation found that DSS lacked a complaint system for clients whose complaints did not qualify for the Medicaid fair hearing process. Agency actions regarding the care coordinator, however, were found to be reasonable. This investigative report has not been made public or fully summarized due to concerns for confidentiality and privacy. DSS agreed with the findings and began developing a written complaint system.
The Division of Agriculture did not treat a South-Central Alaska resident unfairly by the manner in which it issued public notice of an impending sale of three agricultural land parcels in December of 1998. The resident complained to the Ombudsman that the December 8 public outcry auction was inadequately publicized, depriving the complainant and other members of the public an opportunity to prepare for the sale.
Investigation showed that the Division exceeded the notice required for such sales by statute and regulation and, in fact complied with more stringent land disposal notice requirements. Therefore the allegation was found to be unsupported.
However, investigation also noted that the Division has begun making use of its Internet by posting notice of the impeding auctions on the Divisions Home page as well as other pages on the Department of Natural Resources pages. Additionally, Governor Tony Knowles on June 4 signed an executive order directing that public notices for all executive agencies be posted in one Internet site created for such notices.
The Ombudsman did not propose formal recommendations but did suggest that the Division consider placing legal advertising in the real estate sections of the newspaper in addition to the legal sections. Because the suggestion was non-binding, the agency was not required to respond.
A woman who received in court a judgment against a juvenile delinquent reported problems in executing the judgment and receiving her money. On the advice of juvenile probation officers, the woman tried to file a writ of execution against the juveniles permanent fund dividend, but the court clerks told her she could not file against a minor. They told her to go back to court to extend the judgment against the juveniles parents or wait until the juvenile emancipates before seeking restitution. The woman contacted the Office of the Ombudsman in frustration.
The ombudsman investigator found that state law allows victims of juvenile delinquents to execute judgments against their PFDs. The investigator provided the citations to the court clerk, who checked this information with the courts attorney. The attorney agreed that the woman has the right to execute the judgment. The clerk immediately invited the woman to file the writ of execution at her convenience.
The Ombudsman made two recommendations aimed at preventing a similar misunderstanding from occurring again. The court clerk and the area court administrator accepted the recommendations and began implementing them immediately.
This investigation concerns two allegations that the Department of Health and Social Services, Division of Family and Youth Services (DFYS) failed to identify the fathers of children in state care, and a separate allegation that DFYS violated the civil rights of a mentally incapacitated parent.
In the first case, DFYS failed to establish paternity for 16 months after the child, Oliver Gold, was taken into state custody. From the beginning, DFYS knew the possible fathers name but took no action to confirm it. Later, Olivers paternal grandmother complained that DFYS would not place the boy in foster care with her. State law at the time required placement of a child in state custody with a blood relative absent a showing the child would be harmed by the placement. Instead, Oliver lived with a non-relative foster parent. By the time DFYS determined paternity, Oliver was psychologically bonded with his foster family, and a doctor recommended against moving him to his biological family. Olivers foster parent later adopted him.
The second case involved Annie Pine, a schizophrenic jailed for prostitution and transferred to the Alaska Psychiatric Institute (API). While in custody, she gave birth to Andrew and identified a jailed man, Sam Oak, as the father. The man acknowledged paternity and asked that the child be placed with his mother, Susan Oak, until his release from prison. He agreed to a two-day voluntary placement with DFYS until Ms. Oak could come to Anchorage to get the newborn. Neither Andrews mother nor her sister and guardian, Cheryl Ash, were told of this arrangement or permitted a voice in the decision, even though they told DFYS Sam Oak could not be the father. Months later, after more questions were raised about the childs paternity, DFYS arranged genetic testing. The results showed the child was not related to Mr. Oak. DFYS removed the child from Ms. Oaks home. Ms. Oak, originally thought to be Andrews grandmother, complained that DFYS refused to reimburse her for the foster care she provided while she had the child.
The ombudsman found the allegations justified. Oliver Gold remained in foster care more than a year longer than he might otherwise have because the agency did not test the man originally thought to be his father then acted slowly on his grandmothers request for custody of him. The social worker gave Andrew Pine to the wrong family over protests of other family members that Sam Oak could not be the father. DFYS discovered the mistake four months later. The agency took Andrew from his mentally incapacitated mother without notice and refused to give the mothers guardian information about his whereabouts.
DFYS agreed to establish policies on paternity establishment and the process for handling a relatives request for custody.
Several of the ombudsmans recommendations impact the foster care system as a whole. The ombudsman urged DFYS to work with other CINA agencies to create a system that ensures the prompt identification of fathers in child in need of aid cases. Key to this was the recommended creation of a pilot court-based paternity testing project.
DFYS agreed with the findings and substantially adopted all of the recommendations.
A former Department of Corrections (DOC) Correctional Officer (CO) was not exempted from taking a psychological examination required of all new hires at DOC. The former CO complained that DOC refused to rehire him after he recuperated from career-ending injuries suffered earlier this decade. DOC had started the rehire process as called for under the Injured Workers Rehire Act but rescinded its job offer after the CO failed a psychological examination. The CO complained that DOC did not tell him why he was not being rehired and that he improperly was required to take the examination.
The Ombudsman found that DOC informed the CO that he was not hired because he failed a DOC-funded employment psychological screening and examination. He had signed a waiver stating that he would not be given the specific results of the examination but objected when he failed.
The Ombudsman review also found that all DOC correctional officers, parole and probation officers are required to pass certain qualifications under the Police Standards Council Act of 1991. The legislative intent language of that act did exempt, or grant grandfather rights to current DOC employees but stated that if a current employee terminated from employment for any reason and then sought rehire, the employee must qualify under the PSC Act.
The Ombudsman found this allegation to be unsupported.
In August 1998, a young man complained to the Ombudsman that the University of Alaska Anchorage charged excessive cancellation fees when he gave notice that he would not occupy a room he had reserved in student housing.
According to the complaint, UAAs Housing, Dining and Conference Services Office unfairly charged a cancellation fee of $250 plus the forfeiture of a $100 security deposit when the man gave notice in January 1998 that he would not be occupying a dorm room he had reserved for the 1998 Spring semester.
The Ombudsman found the allegation not supported. The university is allowed by Alaska Statute to set the terms and conditions for renting residence hall space. The complainant was of legal age when he signed the Residence Hall Agreement, in which the penalties for cancellation were stated clearly. The complainant initialed sections in the contract that specifically stated the penalties for cancelling the contract.
According to university officials, the purpose of the cancellation fee is to discourage students from doing exactly what the complainant did, which was to cancel a reservation at the last possible moment. Late cancellations make a room unavailable to other students from out-of-town who might have enrolled had they the assurance of a reserved room. The cancellation fee is not rent, but a penalty with a reasonable intent.
State Delayed Pursuit
of Withheld Withholdings
An Anchorage woman called the Ombudsman in October 1996 to complain that the Child Support Enforcement Division (CSED) was collecting much more in monthly support payments than she could afford. She told the investigator that she was being forced to pay $365 per month to CSED despite the fact that she had already paid the support and that she had custody of her child.
The woman said that support had been withheld from her paychecks for more than four years but her employer, an Anchorage cleaning service, wasnt sending the money to CSED as ordered. Further, she alleged she had informed CSED of this fact four years before her call to the ombudsman and the agency did not do anything to rectify the situation. She wanted the Ombudsman to make CSED either collect a lower amount of monthly support or to stop collecting altogether. She contended that she already had paid her debt.
Investigators contacted the agency immediately and learned that CSED had referred the womans case to the Department of Law three-and-one-half years prior to the call but Law had not acted on the case or returned it to CSED. Further, CSED staff said, two other cases had been referred to Law at the same time alleging that the same employer was withholding support their paychecks and not sending the money to CSED.
Investigation showed that the obligor mothers case had been send to Law in 1993 and lost until 1995 when an assistant attorney general inquired about the case from CSED. After that inquiry the AAG took no action until late 1997 and early 1998 when the Ombudsman was actively pursuing the case.
Investigation also showed that despite numerous inquiries from the obligor, her ex-husband and even a new employer, CSED staff for three years never inquired of Law about the status of their work on the obligors case.
The assistant attorney general in charge of the case told the investigator that she was researching the status of a bankruptcy action involving the non-compliant employer. She said that when she determined if the obligor, her husband or CSED had filed a claim for the withheld support in bankruptcy court, she would proceed. That research lasted more than two years but review revealed very little actual action by the attorney. Additionally, lack of review of this question stalled action in the cases of the two other employees whose cases were referred to Law and whose cases were handled by other attorneys. No action had occurred in the three cases because they were awaiting information on the bankruptcy filings.
The investigator also determined that CSED had nine other cases involving employees of the non-compliant obligor who had either alleged their withheld wages werent forwarded to CSED or cases in which the employer didnt respond to the withholding order at all.
The Ombudsman found that CSED was inefficient in not more actively pursuing the case and reminding Law that it was pending, and unreasonable in not reducing the amount of support the obligor was being asked to pay because it was based on an incorrect initial monthly support estimate. The Ombudsman found Law was inefficient in not pursuing the case with more speed. Neither agency contested the findings.
The Ombudsman also recommended that CSED and Law expedite work on the cases of the cleaning service employees and work on the cases of some 40 other obligors whose cases had been referred to Law for employer non-compliance. Law has complied and radically reduced the number of pending employer non-compliance cases.
The obligor who initially complained to the Ombudsman has now had her case closed because her child emancipated and the recalculation of her debt showed that she had paid the debt off. Law filed suit against the non-compliant obligor. That case is pending.
The complaints were closed as justified and partially rectified.
The mother of a Section 8 rental subsidy recipient contacted the Ombudsman after the recipient was told that the Alaska Housing Finance Corporation (AHFC) Public Housing Division (PHD) would not allow her to rent from her mother. The daughter had been renting a house her mother owned but wanted to move from her rural but road-connected area to a more urban setting. She said that jobs were more available in the urban area.
The mother complained that the PHD caseworker told her daughter that she could rent from her mother then changed his mind after the mother purchased a house specifically for the daughter to rent. The daughter later complained that the caseworker should have told her immediately that she couldnt rent from a relative. Both women expressed doubts that the PHD was following policy in the action.
The ombudsman investigator interviewed the daughter as part of the investigation into her mothers complaint. During the interview the daughter admitted that when she spoke to the caseworker about moving to the urban area she only asked if her Section 8 eligibility could transfer to another area. She said she did not mention that her mother would be buying a house for her. When she returned a month later she told the caseworker that her mother was buying a house. The worker then told her that PHD had adopted and was enforcing a new Housing and Urban Development policy prohibiting Section 8 participants from renting from close relatives such as parents, grandparents, and siblings.
HUD adopted the policy four months before the daughter had decided to move. AHFC PHD adopted the policy two months before she decided to move. Because the daughter did not inform the worker that she intended to rent from a parent prior to receiving permission to move, and because PHF was enforcing a HUD regulation, the Ombudsman found the allegation to be unsupported.
However, the ombudsman suggested that PHD instruct workers to track any instances of Section 8 participants being denied housing because of this regulation and, if the rule resulted in housing shortages, consider seeking a waiver from HUD for the affected area.
A first-time Anchorage landlord called the Ombudsman after her tenant trashed her rental unit and the Alaska Housing Finance Corporation Public Housing Division (AHFC PHD) refused to compensate the landlord for the damage. The landlord reasoned that because PHD had provided rental assistance under its federally backed Section 8 rental assistance program, PHD should tell landlords if their potential tenants are destructive.
The landlord stated that the tenant caused more than $5000 in damage to her rental unit. Even though the landlord obtained a judgment for damages in small claims court, she argued that AHFC bore responsibility because PHD staff didnt tell her that the tenant had a history of destructive behavior in rental units.
The Ombudsmans investigation showed that only one prior rental unit had sustained damaged by the tenant and her family. The landlord rented her unit to the tenant before the tenant notified the prior landlord or AHFC that she was moving out and before the landlords rental was approved for the Section 8 program. It was nearly a full month from the date that the destructive tenant occupied the complaining landlords unit before AHFC learned of the damage at the prior rental.
Further, the landlord signed several documents stating that AHFC was not responsible for researching potential tenants to see if they were suitable for rental. Additionally, AHFC operates under US Department of Housing and Urban Development regulations that do not allow for such compensation.
Because of these factors the Ombudsman found the allegation to be unsupported by the facts.
A citizen complained that a contract between the Department of Commerce, Division of Trade & Development, and the American Business Center (ABC) of Seattle to represent Alaskan interests on Sakhalin Island in Russia was entered into without competitive solicitation and had cost overruns in excess of $50,000. The citizen also complained that the ABC was under contract with the federal government to provide states the same services for which Alaska paid.
Investigation showed that Congress created the ABCs to facilitate the entry of small and medium-sized U.S. businesses into the commercial markets of newly independent nations. Congress specifically required the ABCs to collect user fees from state economic development offices and other eligible clients.
Investigation also showed that contracts to be performed outside the U.S. are generally exempt from normal state procurement rules requiring competitive solicitation and limits on contract amendments. The allegation was found not supported by the evidence.
Two unrelated complaints against the Department of Health and Social Services (DH&SS) within two months drew attention to the departments responsibilities under the Executive Branch Ethics Act. In each case, a department employee alleged that the department inadequately investigated complaints under the ethics law.
Initially, the Ombudsman was concerned mainly with the apparent inconsistency in the two cases: one person was notified of the disposition of her complaint while the other was not. As the investigation progressed, other concerns emerged: the lack of a written policy at the department for handling ethics complaints, the inadequacy under the ethics act of the departments unwritten policies, the lack of training for designated ethics supervisors, and the Department of Laws change in interpretation of the ethics act regarding notification to persons who report potential ethics violations.
The Ombudsman recommendations targeted these concerns. The Ombudsman also made suggestions to the Department of Law concerning its interpretation of the ethics law. The Ombudsman concluded, however, that DH&SS' ethics investigations were adequate.