Bill Text: MI SB0493 | 2023-2024 | 102nd Legislature | Engrossed
Bill Title: Legislature: legislative agencies; office of legislative corrections ombudsman; expand powers and duties and rename to office of legislative corrections ombudsperson. Amends title & secs. 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 & 14 of 1975 PA 46 (MCL 4.351 et seq.).
Spectrum: Moderate Partisan Bill (Democrat 8-1)
Status: (Engrossed) 2024-12-04 - Referred To Second Reading [SB0493 Detail]
Download: Michigan-2023-SB0493-Engrossed.html
Substitute For
SENATE BILL NO. 493
A bill to amend 1975 PA 46, entitled
"An act to create the office of the legislative corrections ombudsman; to prescribe the powers and duties of the office, the ombudsman, the legislative council, and the department of corrections; and to provide remedies from administrative acts,"
by amending the title and sections 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14 (MCL 4.351, 4.352, 4.354, 4.355, 4.356, 4.357, 4.358, 4.359, 4.360, 4.361, 4.362, 4.363, and 4.364), sections 1, 6, 7, and 10 as amended by 1998 PA 318, sections 4, 5, 8, 9, and 13 as amended by 2018 PA 571, section 11 as amended by 1995 PA 197, and section 12 as amended by 1982 PA 170.
the people of the state of michigan enact:
An act to create the office of the legislative corrections ombudsman; ombudsperson; to prescribe the powers and duties of the office, the ombudsman, ombudsperson, the legislative council, and the department of corrections; and to provide remedies from administrative acts.
(a) "Administrative act" includes an action, omission, decision, recommendation, practice, or other procedure of the department.
(b) "Complainant" means a prisoner, or legislator, family member, or prisoner advocate who files a complaint under section 4.
(c) "Council" means the legislative council established under section 15 of article IV of the state constitution of 1963.
(d) "Department" means the department of corrections.
(e) "Family member" means a family member of a prisoner who advocates on behalf of that prisoner.
(f) (e) "Legislator" means a member of the senate or the house of representatives of this state.
(g) (f) "Office" means the office of the legislative corrections ombudsman ombudsperson created under this act.
(h) "Official" means an official or employee of the department.
(i) (g) "Ombudsman" "Ombudsperson" means the office of legislative corrections ombudsman.ombudsperson.
(j) (h) "Prisoner" means a person an individual committed to or under the jurisdiction of the department.
(i) "Official" means an official or employee of the department of corrections.
(k) "Prisoner advocate" means an individual or organization who advocates on behalf of a prisoner or prisoners.
(l) "Qualified expert" means a professional with substantial experience in a field, including, but not limited to, environmental, medical, or mental health professionals.
Sec. 2. (1) The office of the legislative corrections ombudsman ombudsperson is created within the legislative council.
(2) The principal executive officer of the office of the legislative corrections ombudsman ombudsperson is the legislative corrections ombudsman ombudsperson who shall be is appointed by and serve serves at the pleasure of the council.
Sec. 4. (1) The ombudsman ombudsperson may commence an investigation upon either any of the following:
(a) Receipt of a complaint from a prisoner, a legislator, complainant or on the ombudsman's ombudsperson's own initiative, concerning an administrative act that is alleged to be contrary to law or contrary to departmental policy.
(b) The ombudsman's ombudsperson's own initiative for significant prisoner health and safety issues, correctional facility security, and public safety, and other matters for which there is no effective administrative remedy.
(2) By not later than 120 business days after the effective date of the amendatory act that added this subsection, the ombudsperson shall create a standardized complaint form that a complainant may use, and make the standardized complaint form available in both of the following ways:
(a) Electronically on the ombudsperson's website.
(b) In hard copy in all correctional facility law libraries and other locations within correctional facilities as requested by the ombudsperson.
(3) On receiving a complaint from a complainant, the ombudsperson shall notify the complainant that the complaint was received.
(4) (2) Subject to approval of the council, the ombudsman ombudsperson shall establish procedures for receiving and processing complaints, conducting investigations, holding hearings, and reporting the findings resulting from the investigations.
Sec. 5. (1) Upon request and without the requirement of any release, the ombudsman ombudsperson shall be given access to and physical or electronic copies of all information, records, and documents in the possession of the department that the ombudsman ombudsperson considers necessary in an investigation, including, but not limited to, prisoner medical health records, prisoner mental health records, and prisoner mortality and morbidity records. Upon request, the ombudsman ombudsperson may interview any of the following individuals whom the ombudsman ombudsperson considers necessary in an investigation:
(a) An individual employed by or retained under contract by the department.
(b) An individual employed by or retained under contract by a private contractor that operates a facility or institution that houses prisoners under the jurisdiction of the department.
(2) The ombudsperson may consult or contract with qualified experts for assistance with investigations, inspections, hearings, or other work of the ombudsperson. Subject to this subsection, the qualified expert must be permitted to enter facilities with the ombudsperson and bring any necessary testing equipment into correctional facilities. The ombudsperson or qualified expert may bring photographic equipment into correctional facilities to take pictures that the ombudsperson or qualified expert determines to be necessary, if taking those pictures does not compromise correctional facility security. The ombudsperson shall give the department 72 hours advance notice when the ombudsperson considers it necessary to take an expert into a correctional facility. The ombudsperson shall provide the department with the name of the expert, a completed law enforcement information network form concerning that expert to allow the department to conduct a background check on that expert, the expert's credentials, including any licensing information in the expert's area of expertise if applicable, and a description of any testing equipment the expert may need. The department may search any testing equipment for contraband that is brought into a correctional facility by an expert or ombudsperson. An expert must adhere to state or national standards developed for the expert's area of expertise. The department may ask the ombudsperson to reconsider taking testing equipment into a correctional facility if the department determines that the testing equipment may interfere with the operations of the correctional facility. The department shall provide the ombudsperson with a written statement explaining the specific impact testing equipment will have on the operations of the correctional facility for the ombudsperson to consider. The department shall notify the ombudsperson if a requested testing procedure is under litigation, and the ombudsperson must delay that testing until the litigation has been completed.
(3) (2) Upon request and without notice, the ombudsman ombudsperson must be granted entrance to inspect at any time any premises under the control of the department. One ombudsman ombudsperson staff person member must also be granted entry into a correctional facility or the department's "think tank" or "command center" during emergency situations including, but not limited to, correctional facility disturbances, riots, and hostage incidents, and must be provided with updates regarding the status of the emergent situation as well as the department's efforts to address the situation. The ombudsman ombudsperson staff person member granted entry for an emergency situation under this subsection is present for observation and to report on the emergency situation.
(4) (3) The ombudsman ombudsperson may hold informal hearings and may request that any person appear before the ombudsman, ombudsperson, or at a hearing, and give testimony or produce documentary or other evidence that the ombudsman ombudsperson considers relevant to a matter under investigation.
(5) (4) The ombudsman ombudsperson shall arrange an interview under subsection (1) in cooperation with the department at a time and location that does not interfere with the operation of a correctional facility.
Sec. 6. (1) The ombudsman ombudsperson shall advise a complainant to pursue all administrative remedies open to the complainant. The ombudsman ombudsperson may request and shall receive from the department a progress report concerning the administrative processing of a complaint. After administrative action on a complaint, the ombudsman ombudsperson may conduct further investigation on the request of a complainant or on his or her the ombudsperson's own initiative.
(2) The ombudsman ombudsperson need not conduct an investigation on a complaint brought before the ombudsman. ombudsperson. A person is not entitled as a right to be heard by the ombudsman.ombudsperson.
Sec. 7. Upon receiving a complaint from a legislator or a prisoner complainant under section 4 and deciding to investigate the complaint, the ombudsman ombudsperson shall notify the complainant, the prisoner or prisoners affected, and the department. If the ombudsman ombudsperson declines to investigate, the ombudsman ombudsperson shall notify the complainant, in writing, and inform the prisoner or prisoners affected of the reasons for the ombudsman's ombudsperson's decision.
Sec. 8. Upon request of the ombudsman, ombudsperson, the council may hold a hearing. The council may administer oaths, subpoena witnesses, and examine the books and records of the department or of a person, partnership, or corporation involved, in accordance with section 104 of the legislative council act, 1986 PA 268, MCL 4.1104, in a matter that is or was a proper subject of investigation by the ombudsman ombudsperson under this act.
Sec. 9. (1) Correspondence between the ombudsman ombudsperson and a prisoner is confidential and must be processed as privileged correspondence in the same manner as letters between prisoners and courts, attorneys, or public officials.
(2) The ombudsman ombudsperson shall maintain secrecy with respect to all matters and the identities of the complainants or persons from whom information is acquired, except so far as disclosures may be necessary to enable the ombudsman ombudsperson to perform the duties of the office and to support any recommendations resulting from an investigation. A record of or information obtained or created by the ombudsman ombudsperson is confidential, is considered privileged, must only be used for purposes set forth in this act, is not subject to court subpoena, and is not discoverable in a legal proceeding. A record of or information obtained by the ombudsman ombudsperson that is otherwise available from other sources is not exempt from court subpoena or discovery from other sources solely because it was presented to or reviewed by the ombudsman.ombudsperson.
(3) All of the following are exempt from disclosure under the freedom of information act, 1976 PA 442, MCL 15.231 to 15.246:
(a) A record of the ombudsman.ombudsperson.
(b) A report or recommendations made by the ombudsman ombudsperson and submitted to the council under section 10.
(c) Information obtained or created by the ombudsman.ombudsperson.
Sec. 10. (1) The ombudsman ombudsperson shall prepare and submit a report of the findings of an investigation and make recommendations to the council within 30 days after completing the investigation if the ombudsman ombudsperson finds any of the following:
(a) A matter that should be considered by the department.
(b) An administrative act that should be modified or canceled.
(c) A statute or rule that should be altered.
(d) Administrative acts for which justification is necessary.
(e) Significant prisoner health and safety issues as determined by the council.
(f) Any other significant concerns as determined by the council.
(2) Subject to section 11, the council may forward the report prepared and submitted under this section to the department, the prisoner or prisoners affected, or the complainant who requested the report.
Sec. 11. Before announcing a conclusion or recommendation that expressly or by implication criticizes a person or the department, the ombudsman ombudsperson shall consult with that person or the department. When publishing an opinion adverse to the department, or any person, the ombudsman ombudsperson shall include in that publication a statement of reasonable length made to him or her the ombudsperson by the department or person in defense or mitigation of the action if that statement is provided within a reasonable period of time as determined by the council. The ombudsman may request to be notified by the department, within a specified time, of 30 business days after the consultation with the department or person. The department may request 1 extension of 14 business days to provide the statement. The ombudsperson shall report to the council if the department fails to provide a response within the time limit provided under this section. The department shall notify the ombudsperson within 30 business days after any action is taken on any recommendation presented. The ombudsman ombudsperson shall notify the complainant of the actions taken by the office and by the department within 45 business days after the action is taken.
Sec. 12. (1) The ombudsman ombudsperson shall submit to the council and the legislature an annual report on the conduct of the office and make the report available on the ombudsperson's website. The annual report must include all of the following:
(a) All of the following information for complaints:
(i) The total number of complaints that were received, investigated, denied, resolved, unsubstantiated, or undecided.
(ii) The number of complaints received concerning each correctional facility.
(iii) The number of complaints filed, broken down by subject matter, including, but not limited to, racial discrimination and medical treatment issues.
(b) Significant issues that were investigated.
(c) Each recommendation made to the department.
(d) The department's response to each recommendation.
(2) The ombudsperson shall make monthly reports available on the ombudsperson's website that include for each month the information described in subsection (1)(a).
Sec. 13. (1) A prisoner, prisoner advocate, or family member must not be penalized in any way by an official or the department as a result of filing a complaint, complaining to a legislator, or cooperating with the ombudsman ombudsperson in investigating a complaint.
(2) A person or the department shall not hinder the lawful actions of the ombudsman ombudsperson or employees of the office, or willfully refuse to comply with lawful demands of the office.
(3) The department shall not take disciplinary action against an employee for communicating with the ombudsman.ombudsperson.
Sec. 14. The authority granted the ombudsman ombudsperson is in addition to the authority granted under the provisions of any other act or rule under which the remedy or right of appeal or objection is provided for a person, or any procedure provided for the inquiry into or investigation of any matter. The authority granted the ombudsman shall ombudsperson must not be construed to limit or affect the remedy or right of appeal or objection and shall must not be deemed considered part of an exclusionary process.
