Legislature(2003 - 2004)
2004-02-27 Senate Journal
Full Journal pdf2004-02-27 Senate Journal Page 2314 SB 354 SENATE BILL NO. 354 BY THE SENATE RULES COMMITTEE BY REQUEST OF THE GOVERNOR, entitled: "An Act relating to complaints filed with, and investigations, hearings, and orders of, the State Commission for Human Rights; making conforming amendments; and providing for an effective date." 2004-02-27 Senate Journal Page 2315 was read the first time and referred to the State Affairs and Judiciary Committees. The following fiscal information was published today: Fiscal Note No. 1, zero, Office of the Governor Governor's transmittal letter dated February 25: Dear President Therriault: Under the authority of article III, section 18, of the Alaska Constitution, I am transmitting a bill that would amend the investigation and procedure laws of the State Commission for Human Rights (commission). The bill would amend the investigation and hearing procedures to enhance efficiency and to give the commission more enforcement discretion to increase its effectiveness in combating unlawful discrimination. The bill would add a new statutory provision, AS 18.80.112, to provide the staff of the commission with greater authority to evaluate complaints of discrimination and to choose the complaints that it pursues to hearing before the commission. The purpose of the amendment is to reverse the Alaska Supreme Court's decision in Department of Fish and Game v. Meyer, 906 P.2d 1365 (Alaska 1995), that a hearing is mandatory if a complaint is supported by substantial evidence. The court concluded that the state human rights laws did not give the commission staff discretion to discontinue action on a complaint after an investigator found substantial evidence of unlawful discrimination. Id., at 1373. The effect of this decision was to require the commission to commit its resources to any complaint supported by substantial evidence without regard to such factors as the weakness of the evidence, the strength of an employer's affirmative defenses, or the significance of the alleged violation. Providing the commission with genuine prosecutorial discretion would allow the commission to commit its resources to complaints it determines merit pursuit, based on such factors as, for example, the strength of the evidence, the severity of the alleged violation, an employer's history before the commission, or the complaint's value in establishing precedent guiding future conduct. 2004-02-27 Senate Journal Page 2316 The discretion of the staff of the commission would also be expanded to allow it to compromise a claim for damages in the conciliation (or prehearing) phase of the procedures. The bill would avoid conflicts between staff's exercise of its expanded discretion to compromise, dismiss, or pursue a complaint and the concerns of the victims of unlawful discrimination by allowing a complainant to opt out of commission procedures. A complainant may withdraw the complaint at any time before the executive director of the commission makes the decision to go to hearing and, after withdrawal, pursue the claim independently of the commission in another forum. The bill also would change the hearing procedures. These changes include requiring the commission to follow the procedures in the Administrative Procedure Act, AS 44.62.330 - 44.62.630, unless AS 18.80 provides a different procedure. The bill would eliminate from AS 18.80 some duplicative procedural requirements that are addressed in the Administrative Procedure Act, such as the admissibility of evidence and the requirement that testimony be under oath. Another change would be the addition of a provision similar to a motion for summary judgment in the civil rules of court to allow a summary decision on the law if the facts are not disputed. The reason for allowing a summary decision would be that it is a faster procedure than a hearing, and it would provide a sufficient opportunity to be heard on the legal issues when the facts are not in dispute. The bill would add a provision tying the rate of interest when the commission awards interest to the legal rate in AS 09.30.070 to bring the commission into conformity with other administrative agencies and the courts. It would limit amendments to a complaint after a case is referred for hearing to ensure that all changes are supported by substantial evidence and that a respondent has an opportunity to address all charges informally before being required to defend them in a formal hearing. The bill would move the statute of limitations for bringing a claim from regulation (6 AAC 30.230) to statute. Finally, the bill would amend AS 18.30.130, which addresses the authority of the commission to remedy unlawful discrimination, to establish that the appropriate remedy for unlawful employment discrimination normally would be to restore the actual benefit that was deprived -- hiring, promotion, or reinstatement to a position. In the 2004-02-27 Senate Journal Page 2317 unusual case where the relationship is so poisoned that the employee cannot return to work, the bill would allow an award of up to two years of compensation, minus the wages that the employee should be able to earn. Additionally, under the bill the commission would be able to order training regarding discriminatory practices. This bill, by increasing the commission's discretion in handling complaints, would enable the commission to allocate its diminishing resources to cases in which the commission could be the most effective in addressing and eliminating unlawful discrimination. By streamlining commission procedures, the bill would help contain costs and ensure that the procedures are equitable to both complainants and the persons, businesses, labor organizations, and employment agencies charged before the commission with unlawful discrimination. I urge your prompt and favorable action on this bill. Sincerely yours, /s/ Frank H. Murkowski Governor