Legislature(2003 - 2004)

03/23/2004 03:40 PM STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
           SB 354-HUMAN RIGHTS COMMISSION PROCEDURES                                                                        
CHAIR GARY  STEVENS announced SB  354 to be up  for consideration                                                               
and called on Ms. DeYoung.                                                                                                      
4:40 pm                                                                                                                       
JAN DEYOUNG, Assistant Attorney  General, Department of Law, said                                                               
she would  provide a walk  through on  SB 354, which  affects the                                                               
procedures of  the Alaska State  Commission for Human  Rights. It                                                               
would  affect  the   way  cases  are  brought   to  hearing,  how                                                               
procedures are applied  at the commission hearings,  and it would                                                               
expand the  discretionary authority of the  executive director in                                                               
determining which  cases to bring  to hearing as well  as clarify                                                               
the commission's remedial authority if a human rights law                                                                       
violation is found. She continued:                                                                                              
     A key part  of this bill is the  expanded discretion of                                                                    
     the executive  director to choose among  the complaints                                                                    
     to  take  to hearings.  Several  years  ago the  Alaska                                                                    
     Supreme  Court  issued  a decision  in  a  case  called                                                                    
     Department  of Fish  and Game  versus Andre  Meyer. And                                                                    
     the  impact  of that  case  was  to require  commission                                                                    
     staff to pursue  to a hearing every  complaint that the                                                                    
     commission,  in investigation,  found was  supported by                                                                    
     substantial evidence. The effect  of this ruling was to                                                                    
     prohibit the  commission from exercising  discretion in                                                                    
     allocating  its   resources  to  the  most   strong  or                                                                    
     deserving cases.                                                                                                           
     The bill  would give  the executive director  the power                                                                    
     to choose the  cases to take to hearing  and to dismiss                                                                    
     inappropriate  other cases  in a  procedure we  call an                                                                    
     administrative dismissal.                                                                                                  
     Section 1  would provide the complainant  the authority                                                                    
     or  the  ability to  withdraw  complaints  at any  time                                                                    
     before   the  conclusion   of  the   investigation  and                                                                    
     settlement   or   conciliation    procedures   at   the                                                                    
     commission.   This  authority   is  limited   after  an                                                                    
     accusation would be issued and  the accusation would be                                                                    
     the initiation  of the formal procedures  going forward                                                                    
     to hearing.                                                                                                                
     Section 2  would add  a statute  of limitations  to the                                                                    
     commission's laws. They currently  have in regulation a                                                                    
     180  day  time  period   after  the  commission  of  an                                                                    
     unlawful practice  for the subject  of the  practice to                                                                    
     bring  a complaint  to the  commission. The  bill would                                                                    
     move that into the statute.                                                                                                
     Section 3 addresses  the investigation and conciliation                                                                    
     parts  of   the  commission  law  and   it  makes  some                                                                    
     housekeeping  amendments  to  law  to  require  certain                                                                    
     kinds  of paperwork  if  the case  is  resolved at  the                                                                    
     conciliation  stage. It  also makes  it clear  that the                                                                    
     commission staff  have the  power in  that conciliation                                                                    
     or settlement phase  of the case to  compromise a claim                                                                    
     for damages.  It's not necessary that  it conciliate at                                                                    
     full damages or full relief for the complainant.                                                                           
     Section 4 of  the bill is the section that  sets out in                                                                    
     detail the  expanded powers  of the  executive director                                                                    
     to choose  the complaints that  the staff will  take to                                                                    
     hearing before the commission.                                                                                             
     By expanding the discretion, the  director will be able                                                                    
     to take  such factors into  account as the  strength of                                                                    
     the evidence, the strength  of an employers affirmative                                                                    
     defenses,  the significance  of the  alleged violation,                                                                    
     the  history of  the complaints  against the  employer,                                                                    
     the  level of  cooperation of  the complainant,  and to                                                                    
     account which cases to go forward on.                                                                                      
     The    executive   director    would    be   able    to                                                                    
     administratively  dismiss  the  cases that  don't  meet                                                                    
     this test.                                                                                                                 
     To  ensure that  the  administrative dismissal  doesn't                                                                    
     affect  the   complainant's  rights  to   pursue  other                                                                    
     remedies that are often available  in these cases, it's                                                                    
     a dismissal  without prejudice. Basically,  the ability                                                                    
     to obtain  the free  assistance of  an attorney  at the                                                                    
     commission's office to go  forward is somewhat limited,                                                                    
     but if  that process is  not available, it's  not going                                                                    
     to  limit  the  complainant's  ability to  go  and  get                                                                    
     outside counsel  to pursue the same  complaint in court                                                                    
     or  in   other  administrative  agencies,   which  have                                                                    
     remedies available.                                                                                                        
     Section   5  provides   that   this  discretion   rests                                                                    
     exclusively with  the executive  director. It's  not an                                                                    
     issue that can be appealed to the commissioners.                                                                           
     Section 5 also makes a  number of changes to procedures                                                                    
     if the case is referred  for hearing. Most importantly,                                                                    
     it   applies   the    Administrative   Procedures   Act                                                                    
     procedures  to the  commission,  which  provides for  a                                                                    
     whole host  of procedures that  are used in  many other                                                                    
     administrative  hearing  agencies   in  the  state.  It                                                                    
     requires the executive director  to issue an accusation                                                                    
     after  decision  is  made  to  go  to  hearing  and  it                                                                    
     restricts changes to that accusation  upon a showing of                                                                    
     good cause.                                                                                                                
     Any  change   that  adds  a  new   charge  of  unlawful                                                                    
     discrimination must  be supported by  an investigator's                                                                    
     finding  of  substantial  evidence. Such  an  amendment                                                                    
     would  have to  go back  to the  conciliation phase  to                                                                    
     allow the  opportunity for the employer  to consider an                                                                    
     address to charge  before it goes to  a formal hearing.                                                                    
     This  conciliation opportunity  is very  beneficial for                                                                    
     the large institutional employers  because they may not                                                                    
     have - the individuals  making decisions about the case                                                                    
     may not  have first  hand information of  what actually                                                                    
     happened in the work place  and it's a good opportunity                                                                    
     to  review with  the commission  staff or  whatever the                                                                    
     evidence and  charges are  and provides  an opportunity                                                                    
     for settlement.                                                                                                            
     It also establishes the burden  of proof and the burden                                                                    
     of proof is the  standard preponderance of evidence. It                                                                    
     would  apply  both  to  the prima  facie  case  and  to                                                                    
     Another  change that  it would  be making  would be  to                                                                    
     allow  a  process similar  to  the  motion for  summary                                                                    
     judgment that is used in  the courts so that a petition                                                                    
     for summary  decision could be  made to  the commission                                                                    
     for those  cases where there  are no disputes  of facts                                                                    
     and  it's  not necessary  to  go  forward to  a  formal                                                                    
     hearing. The goal  of this change would  be to increase                                                                    
     Section 6 of the bill  addresses the remedial powers of                                                                    
     the  commission.   It  provides  the   commission  with                                                                    
     authority  to   issue  a   remedy  after   the  summary                                                                    
     procedure  that   I  just  described.   Currently  this                                                                    
     remedial authority  follows a hearing so  this would be                                                                    
     expanding that.                                                                                                            
     It  clarifies  the  authority of  the  commission  that                                                                    
     punitive  damages  and  non-economic  damages  are  not                                                                    
     among the remedies that may be awarded.                                                                                    
     It also  provides some specific  changes to  the awards                                                                    
     that can be  ordered in employment cases  and lays out,                                                                    
     specifically,  the  remedies  that  are  available.  In                                                                    
     addition to the common  remedies that are already named                                                                    
     in  the  statute  such  as  hiring,  reinstatement,  or                                                                    
     grading an employee with or  without back pay. The bill                                                                    
     adds the remedy of payment  of front pay, but it limits                                                                    
     the payment  to a period  of two years. It  also limits                                                                    
     front  pay awards  to special  circumstances. In  other                                                                    
     words,  if  returning the  employee  to  work would  be                                                                    
     inappropriate  for  a  number of  reasons,  either  the                                                                    
     discrimination has harmed the  employee so the employee                                                                    
     cannot  work or  the relationship  has deteriorated  so                                                                    
     return to the work is just not feasible.                                                                                   
     The  remedial  provisions  also  would  add  a  section                                                                    
     requiring mitigation, which means  that for any damages                                                                    
     awarded  for  earnings, there  must  be  an offset  for                                                                    
     either  actual earnings  or  earnings  that could  have                                                                    
     been  earned  if the  employee  made  a reasonable  and                                                                    
     diligent effort to obtain comparable employment.                                                                           
     Other changes  to the bill  are to require that  if the                                                                    
     commission  awards  interest  on an  award,  the  legal                                                                    
     rates  should be  the rate  that's applied  - the  same                                                                    
     rate that applies to the courts.                                                                                           
     There  are  various  other conforming  amendments  that                                                                    
     appear in the bill [Section 7-15].                                                                                         
CHAIR GARY  STEVENS summarized  saying that  at the  present time                                                               
the commission  must investigate every complaint  that is lodged,                                                               
regardless of  merit. This  bill would  let the  director's staff                                                               
make the decision  on which cases to follow through  on and which                                                               
were without foundation.                                                                                                        
MS.  DEYOUNG clarified  that each  complaint filed  would have  a                                                               
staff investigator  investigate to  see whether it  was supported                                                               
by substantial  evidence. If  the investigator  finds substantial                                                               
evidence, the next  step would be the conciliation  phase. At the                                                               
end of that  phase the question would come up  for the complaints                                                               
that  haven't  fallen  out  through  no  finding  of  substantial                                                               
evidence  or the  conclusion of  conciliation  for the  executive                                                               
director  to exercise  discretion  to go  forward  to the  formal                                                               
hearing. The investigation would precede the decision.                                                                          
CHAIR GARY  STEVENS asked how many  cases are dealt with  and the                                                               
number that aren't carried beyond the conciliation phase.                                                                       
MS. DEYOUNG did not have the information.                                                                                       
CHAIR GARY STEVENS pressed her for an estimate.                                                                                 
MS. DEYOUNG repeated that she didn't know.                                                                                      
CHAIR GARY STEVENS said, "Well,  I understand what you're saying,                                                               
but why would we do this if there's likely to be no impact?"                                                                    
MS. DEYOUNG said the court  says there isn't any prosecutorial or                                                               
charging  discretion.  As  resources  become  more  limited  this                                                               
discretionary  use of  the state's  prosecutorial resources  will                                                               
become more important.                                                                                                          
PAULA HALEY,  Executive Director  of the Alaska  State Commission                                                               
for Human Rights, stated that she  didn't have data to answer the                                                               
exact  question, but  it would  be a  fairly small  percentage of                                                               
cases that have  a substantial evidence finding. There  are a lot                                                               
of ways to close cases  early on through mediation, withdrawal to                                                               
go  to  court,  administrative  dismissals,  or  predetermination                                                               
It's  likely  that substantial  evidence  findings  vary from  11                                                               
percent  to the  high teens  depending  on the  year. During  the                                                               
conciliation phase  she estimates  that about  50 percent  of the                                                               
cases do conciliate. She continued to explain:                                                                                  
     So we  are talking about  a fairly small  percentage of                                                                    
     cases  wherein  under  the   court  decision  that  was                                                                    
     referred to, we may be  compelled to pursue the case to                                                                    
     public hearing.... The commissioners  who met in Juneau                                                                    
     in   March   unanimously  supported   that   particular                                                                    
     provision of  the bill because  they felt  it important                                                                    
     as a matter of public  policy, for the commission to be                                                                    
     able to  take the  most important cases,  which clearly                                                                    
     have  merit   and  important  public   policy  concerns                                                                    
     forward. And  maybe not the  other cases which,  as was                                                                    
     described by Ms. DeYoung, may be just on the boarder.                                                                      
CHAIR GARY STEVENS wasn't sure  he understood correctly and asked                                                               
what percent of cases are fully investigated.                                                                                   
MS. HALEY  said she didn't  have the  data, but could  provide it                                                               
later.  Last year  81 percent  of the  voluntary mediation  cases                                                               
were settled. "That  can have a huge impact. Those  cases are not                                                               
investigated. Subsequent  to that,  individuals may  seek private                                                               
attorneys.  One year  maybe five  percent would  choose to  go to                                                               
court because  there are different remedies  available. It varies                                                               
considerably from year to year," she said.                                                                                      
CHAIR GARY STEVENS  said he appreciates that  she couldn't answer                                                               
the question  right then, but  it's a  fair question if  they are                                                               
asking for  the changes to how  they do business. He  wanted data                                                               
to back  up the  assertion that this  would, "help  contain costs                                                               
and   ensure  that   the  procedures   are  equitable   to  local                                                               
complainants and  persons..." He asked  her to follow up  and get                                                               
the information to the committee.                                                                                               
MS. HALEY said,  "I guess I would  just say that we  have to look                                                               
at those cases individually so it's  very difficult for me to say                                                               
go back to the past year and  say looking at this many cases, how                                                               
many under  this new standard  would we not have  pursued because                                                               
under the  current standard,  we must  pursue all  of them.  So I                                                               
think it's  a bit of a  difficult statistic if you  actually want                                                               
to know  the number  of cases failing  conciliation in  any given                                                               
year that we  would not pursue." She asked if  that is really the                                                               
information he was requesting from the agency.                                                                                  
CHAIR  GARY STEVENS  said he  didn't  need an  exact number,  but                                                               
asking for an  estimate is a fair request. "If  you can't provide                                                               
it you can't  provide it, but if  you are asking us  to make this                                                               
change, I think  it's quite right that we ask  what the impact is                                                               
going to be."                                                                                                                   
MS. HALEY said she was happy  to provide that, but she wanted him                                                               
to   understand  that   the  commission   didn't   ask  for   the                                                               
legislation; it  was introduced by  the Governor's  Office. There                                                               
are certainly positive aspects to  the bill and they were working                                                               
closely with the Department of  Law, but they weren't seeking the                                                               
CHAIR  GARY  STEVENS  said  he understood.  He  then  noted  that                                                               
Senator Hoffman had joined the committee.                                                                                       
He asked  Ms. DeYoung whether  she was  prepared to speak  to the                                                               
fiscal note.                                                                                                                    
MS. DEYOUNG said  she didn't know the status of  the fiscal note.                                                               
She introduced  David Jones  from the Department  of Law  who was                                                               
also present and available for questions.                                                                                       
CHAIR GARY STEVENS  told her the fiscal note  says there wouldn't                                                               
be a fiscal  impact on the Alaska Human Rights  Commission and he                                                               
questioned that  when the Governor's  letter says the  bill would                                                               
help contain costs.                                                                                                             
He recognized Mr.  Jones and asked Ms. Haley whether  she had any                                                               
further testimony.                                                                                                              
MS. HALEY  responded to the  fiscal note saying they  worked with                                                               
the Office  of the  Governor to  prepare the  note and  don't see                                                               
that there would be a  negative fiscal impact. "There are aspects                                                               
of this bill that the  commissioners unanimously support and some                                                               
concerns  they have,  but we  are trying  to continue  our dialog                                                               
with the Department  of Law to remedy some of  the concerns," she                                                               
SENATOR GUESS asked which sections they currently support.                                                                      
MS. HALEY  replied they support  much of the bill.  In particular                                                               
they support section  4, which would no longer  require a hearing                                                               
in every  case where  substantial evidence  is found.  Cases with                                                               
clear  merit  or  important  public   policy  concerns  would  go                                                               
They are particularly  concerned about the limits on  the type of                                                               
relief  that  the commission  can  award.  The front  pay  period                                                               
limitation,  the standard  that  would require  a complainant  to                                                               
make  both reasonable  and diligent  effort, the  restriction for                                                               
amending complaints  for good cause  shown are the key  points of                                                               
difference. They  are talking  with the  Department of  Law about                                                               
the limitations regarding remedial measures.                                                                                    
SENATOR GUESS  asked if she  and the commission  were comfortable                                                               
with the  executive director  being able  to dismiss  a complaint                                                               
they  judge isn't  a benefit  to the  complainant, that  wouldn't                                                               
represent  the best  use of  commission resources,  or would  not                                                               
serve the best public interest.  She thought the scope was rather                                                               
MS.  HALEY  replied  they  are comfortable  with  that.  It's  in                                                               
keeping with what  a number of the federal  civil rights agencies                                                               
have been able  to do for years. "Recognize that  we are here for                                                               
the important  opportunity to  remedy an  individual's experience                                                               
with  unlawful  discrimination,"  she said.  Unlike  the  private                                                               
court system  proceedings, they  are here  to support  the public                                                               
policy against discrimination. They  think it's important to have                                                               
the discretion and she didn't  think there would be a significant                                                               
number of cases they wouldn't move on.                                                                                          
CHAIR GARY STEVENS  asked if she was referring to  page 4 line 18                                                               
relating  to  back and  front  pay  when  she  said she  was  not                                                               
comfortable with the relief section.                                                                                            
MS. HALEY  said it is  primarily the  limitation on front  pay to                                                               
two years. The front pay remedy  is used infrequently, but it can                                                               
be important.                                                                                                                   
CHAIR GARY STEVENS asked for a definition of front pay.                                                                         
MS.  DEYOUNG explained  that back  pay is  the actual  damage the                                                               
individual suffered  when they  didn't earn their  pay up  to the                                                               
time that  the decision is made.  Front pay looks to  or predicts                                                               
the  future.   Usually  the  individual   will  be   restored  to                                                               
employment,  receive  the promotion  or  go  to work  at  another                                                               
position in which case front  pay would not be appropriate. Front                                                               
pay is a rare remedy, she said.                                                                                                 
CHAIR  GARY STEVENS  announced that  there  were still  questions                                                               
that  needed  to  be  addressed  and he  would  hold  SB  354  in                                                               

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