Legislature(2003 - 2004)
03/23/2004 03:40 PM STA
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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 defenses. 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 efficiency. 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 settlements. 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 legislation. 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 said. 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 forward. 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 large. 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 committee.