AN
ACT Relating to the exemption of the office of the family and children's
ombudsman from certain judicial and administrative proceedings; amending RCW
43.06A.010 and 43.06A.020; adding new sections to chapter 43.06A RCW; and
declaring an emergency.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW
SECTION. Sec. 1. A
new section is added to chapter 43.06A RCW to read as follows:
Neither
the ombudsman nor the ombudsman's staff may be compelled, in any judicial or
administrative proceeding, to testify or to produce evidence regarding the
exercise of the official duties of the ombudsman or of the ombudsman's staff.
All related memoranda, work product, notes, and case files of the ombudsman's
office are confidential, are not subject to discovery, judicial or
administrative subpoena, or other method of legal compulsion, and are not
admissible in evidence in a judicial or administrative proceeding. This
section shall not apply to the legislative oversight committee.
NEW
SECTION. Sec. 2. A
new section is added to chapter 43.06A RCW to read as follows:
Identifying
information about complainants or witnesses shall not be subject to any method
of legal compulsion, nor shall such information be revealed to the legislative
oversight committee or the governor except under the following circumstances:
(1) The complainant or witness waives confidentiality; (2) under a legislative
subpoena when there is a legislative investigation for neglect of duty or
misconduct by the ombudsman or ombudsman's office when the identifying
information is necessary to the investigation of the ombudsman's acts; or (3)
under an investigation or inquiry by the governor as to neglect of duty or
misconduct by the ombudsman or ombudsman's office when the identifying
information is necessary to the investigation of the ombudsman' acts.
For
the purposes of this section, "identifying information" includes the
complainant's or witness's name, location, telephone number, likeness, social
security number or other identification number, or identification of immediate
family members.
NEW
SECTION. Sec. 3. A
new section is added to chapter 43.06A RCW to read as follows:
The
privilege described in section 1 of this act does not apply when:
(1)
The ombudsman or ombudsman's staff member has direct knowledge of an alleged
crime, and the testimony, evidence, or discovery sought is relevant to that
allegation;
(2)
The ombudsman or a member of the ombudsman's staff has received a threat of, or
becomes aware of a risk of, imminent serious harm to any person, and the
testimony, evidence, or discovery sought is relevant to that threat or risk;
(3)
The ombudsman has been asked to provide general information regarding the
general operation of, or the general processes employed at, the ombudsman's
office; or
(4)
The ombudsman or ombudsman's staff member has direct knowledge of a failure by
any person specified in RCW 26.44.030, including the state family and children's
ombudsman or any volunteer in the ombudsman's office, to comply with RCW
26.44.030.
NEW
SECTION. Sec. 4. A
new section is added to chapter 43.06A RCW to read as follows:
When
the ombudsman or ombudsman's staff member has reasonable cause to believe that
any public official, employee, or other person has acted in a manner warranting
criminal or disciplinary proceedings, the ombudsman or ombudsman's staff member
shall report the matter, or cause a report to be made, to the appropriate
authorities.
NEW
SECTION. Sec. 5. A
new section is added to chapter 43.06A RCW to read as follows:
Nothing
in this chapter shall be construed to conflict with the duty to report
specified in RCW 26.44.030.
*Sec.
6.
RCW 43.06A.010 and 1996 c 131 s 2 are each amended to read as follows:
There
is hereby created an office of the family and children's ombudsman within the
office of the governor for the purpose of promoting public awareness and
understanding of family and children services, identifying system issues and
responses for the governor and the legislature to act upon, and monitoring and
ensuring compliance with administrative acts, relevant statutes, rules, and
policies pertaining to family and children's services and the placement,
supervision, and treatment of children in the state's care or in state-licensed
facilities or residences. The ombudsman shall report directly to the governor
and the legislative oversight committee and shall exercise his or her
powers and duties independently of the secretary.
*Sec. 6 was vetoed. See message at end of chapter.
Sec.
7. RCW
43.06A.020 and 1996 c 131 s 3 are each amended to read as follows:
(1)
Subject to confirmation by the senate, the governor shall appoint an
ombudsman who shall be a person of recognized judgment, independence,
objectivity, and integrity, and shall be qualified by training or experience,
or both, in family and children's services law and policy. Prior to the
appointment, the governor shall consult with, and may receive recommendations
from the committee, regarding the selection of the ombudsman.
(2)
The person appointed ombudsman shall hold office for a term of three years and
shall continue to hold office until reappointed or until his or her successor
is appointed. The governor may remove the ombudsman only for neglect of duty,
misconduct, or inability to perform duties. Any vacancy shall be filled by
similar appointment for the remainder of the unexpired term.
NEW
SECTION. Sec. 8. If
any provision of this act or its application to any person or circumstance is
held invalid, the remainder of the act or the application of the provision to
other persons or circumstances is not affected.
NEW
SECTION. Sec. 9. This
act is necessary for the immediate preservation of the public peace, health, or
safety, or support of the state government and its existing public
institutions, and takes effect immediately.
Note:
Governor's explanation of partial veto is as follows:
"I
am returning herewith, without my approval as to section 6, Engrossed House
Bill No. 3041, entitled:
"AN
ACT Relating to the exemption of the office of the family and children's
ombudsman from certain judicial and administrative proceedings;"
Engrossed House Bill No.
3041 provides the Office of the Family and Children's Ombudsman (OFCO) an
exemption from disclosure of certain information related to its inquiries. The
purpose of the exemption is to enable the OFCO to conduct and complete its
inquiries in a manner that elicits as much useful information as possible. The
possibility of premature disclosure, or the inability of the office to maintain
reasonable confidences, could compromise the work of the office. This bill
places limits on the exemption that assure that the OFCO is obligated to report
child abuse, or the threat of child abuse, as well as other criminal behavior.
The OFCO currently
reports directly to the Governor. Section 6 of EHB 3041 would have the OFCO
also reporting to the legislative oversight committee. I do not support such a
dilution of accountability. The work of the office is too important to subject
it to an ambiguous and untested administrative arrangement.
For this reason, I have
vetoed section 6 of Engrossed House Bill No. 3041.
With
the exception of section 6, Engrossed House Bill No. 3041 is approved."
