Legislature(1995 - 1996)
03/28/1995 02:09 PM House HES
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 226: MARITAL STATUS AND RETIREMENT BENEFITS Number 1306 REPRESENTATIVE PETE KELLY, sponsor of HB 226, urged HESS Committee members to adopt HB 226. The superior court recently decided unmarried couples are entitled to the same employment benefits as married couples. This decision was the result of a broad interpretation of language found in the Human Rights Act which prohibits discrimination based on marital status. The court concluded the human rights directive was violated by the University of Alaska when it refused health benefits to the unmarried partner of a university employee. REPRESENTATIVE KELLY said it is feared this decision will have a far-reaching impact as a trickle of grievances at the University of Alaska becomes a flood in other agencies and in private industry as well. It is not a stretch to imagine Alascom, the National Bank of Alaska or the AFL-CIO being sued in the near future for failing to recognize domestic partners in their benefits packages. However, because the definition of domestic partner is not grounded in contract or tradition as is marriage, it is a moving target and, therefore, impossible to predict what future relationship will qualify under this umbrella. REPRESENTATIVE KELLY continued that the superior court decision targets workers' benefit packages for distribution to an unknown panoply of partners who are able to attach themselves to state employees. HB 226 intends to reduce this uncertainty as employers try to create their compensation packages. It also attempts to pre-empt the possible onslaught of domestic partner relationships created solely to gain access to potential benefits. REPRESENTATIVE KELLY said the court offers little solace in its decision document when it advises the university to just discontinue benefits to families as an option to stay in compliance with the decision. Number 1385 REPRESENTATIVE KELLY said the anti-discrimination laws based on marital status are meant to prevent such things as an employer hiring only married men or married women because they are somehow more stable and more desirable as employees or vice versa. HB 226 will continue to offer this much needed protection, while closing this expansive loophole. Moreover, HB 226 clearly draws a distinction between the housekeeping arrangements of a domestic partnership and the legal bond of marriage, credentialed by society through thousands of years of tradition and cultural experience. REPRESENTATIVE KELLY said as the peoples' representatives, legislators have a compelling interest in protecting the institution of marriage as the only vehicle capable of providing civilization with a future generation of citizens. Number 1417 REPRESENTATIVE KELLY wanted to send a clear message that the institution of marriage and the families it produces are worthy of special recognition. It is for this reason that he requests the passage of HB 226. REPRESENTATIVE VEZEY asked if the only change in existing law provided for in Section 1 of the bill is the spelling of the word "it." He cannot see the changes in Section 1. REPRESENTATIVE KELLY explained that in current statutes, there is a prohibition against discrimination. Representative Kelly pointed to number 1, under AS 18.80.220. He said this was the current statute and it reads of prohibition of discriminatory practices. An employer cannot discriminate based on sex, age, marital status, etc. However, in (c), Section 2, an employer may refuse to provide benefits to a person because the person is not legally married to an employee of the employer without violating this chapter. REPRESENTATIVE KELLY said the bill also says that labor organizations may negotiate the same kind of agreement. Essentially, the bill is currently what's in place, and there is no prohibition against a state agency or anyone negotiating a domestic partner arrangement. It just says the organization is not guilty of discrimination should it not choose to provide those benefits. Number 1520 REPRESENTATIVE VEZEY said so the only change in Section 1 is the addition of the exception clause. Representative Kelly said he was correct. REPRESENTATIVE BRICE provided an example of an unmarried couple who has been living together for the last 18 years. One partner is the breadwinner, and the other partner stays at home. They are not legally married in terms of Justice of the Peace or religious ceremonies. Considering the fact that the second person has no income, is he/she going to be eligible for state medical assistance, such as MedicAid or MediCare, whereas otherwise, without HB 226, private insurance would pay for care? In other words, isn't this bill simply shifting cost away from private insurance organizations onto the state? REPRESENTATIVE KELLY said there would be qualifications for MediCare, AFDC, etc., that provide relief. There are qualifications that must be met. Representative Kelly said he is not an expert on the exact qualifications for MedicAid, but for many of the other services, one cannot live with someone and collect those benefits. It is required that the person live in state housing, and the person would be required to give up certain amounts of property. Therefore, Representative Kelly does not see the bill as shifting costs any more than costs are now shifted. Number 1629 REPRESENTATIVE BRICE said therefore, in other words, Representative Kelly does not view the state as picking up these individual's costs. It may be something the Division of Medical Assistance might be able to answer more clearly. Representative Brice asked if it was the understanding of Representative Kelly that those dependent individuals would not fall under MedicAid. REPRESENTATIVE KELLY did not know. If the point is the legislature is trying to require that the state is somehow responsible for these people, or the person with whom they live is responsible, Representative Kelly does not know if this bill necessarily addresses that. That is not the purpose of this bill. That might be an issue that is better addressed in the statutes that enable MedicAid. Number 1663 REPRESENTATIVE BRICE said people will be taken care of in one way or another--whether they walk in off the street into an emergency room to place the burden on the facility (which eventually places the burden on the state), or whether private insurance pays for that help. Representative Brice said he wants to be very certain HB 226 will not shift costs back to the state. It might be a question that the Division of Medical Assistance (DMA) should answer. REPRESENTATIVE KELLY was not sure of the point Representative Brice was trying to make. However, he thought the state cannot be held hostage to someone who says, "If you do not provide me with medical insurance through my spousal equivalency arrangement, I will now go and cost you money at the emergency room." Representative Kelly did not want to hold the state hostage in such a way. REPRESENTATIVE BRICE felt Representative Kelly was missing what he was trying to get at. The couple consists of Partner A and Partner B. Partner A works, Partner B does not. They are not married, but they have a well-established, long-term relationship. They live together and share many things. Partner A is the only one in this relationship that is capable of receiving benefits because of this bill. Partner B is not. Partner B gets deathly ill, but is not covered by Partner A's benefits. Therefore, Partner B is eligible to go and receive state help, versus having the insurance company pay for the care. That is the concern of Representative Brice. Number 1772 CO-CHAIR TOOHEY asked if Representative Brice was assuming the only way someone is eligible for MedicAid is because of an economic level. REPRESENTATIVE BRICE said yes, and Partner B would have no income whatsoever. CO-CHAIR TOOHEY said that is being assumed, because Partner B may be the co-owner of the house or something. REPRESENTATIVE BRICE said it may be that Partner B is the co-owner of the house. In that case, however, Partner B would probably be working and bringing in income. However, if Partner A is the sole provider, and Partner B brings in no income and has no legally recognizable assets, Partner B becomes eligible for the state's money. Maybe this is a discussion that needs to be had with someone from the DHSS that understands medical assistance issues better. This might help clarify some of this. Number 1824 CO-CHAIR TOOHEY said several people from the Department of Law were present to answer his questions. REPRESENTATIVE KELLY wanted to note that when the court decision came about, the judge in the case said there was no legislative intent, and the statute stood as an absolute prohibition against discrimination based on marital status. The fact is that there are plenty of examples of legislative intent. Throughout the statute, there is exactly what Representative Kelly has put in the bill. REPRESENTATIVE KELLY said for example, in AS 39.30.090, it says "the Department of Administration may obtain a policy or policies of group insurance covering state employees. Persons entitled to the coverage under AS 39.35 or employees of other participating government units are subject to the following conditions...." REPRESENTATIVE KELLY said the document from which he was reading goes on to read, "Each eligible employee of the state, the spouse, and the unmarried children chiefly dependent upon the eligible employee for support, and each eligible employee of another participating governmental unit shall be covered by the group policy unless exempt under regulations adopted by the Commissioners." REPRESENTATIVE KELLY said that is one example. The document, as far as legislative intent, does not say anything about anyone who is financially dependent on the employee, anyone in a marriage-like relationship, or anyone who signs an affidavit of spousal equivalency. Likewise, in Section 14.25.168 of the medical benefits section, which will be provided to HESS Committee members, it reads, "The following persons are entitled to major medical insurance coverage...." Representative Kelly said it is the spouse of a person or the natural or adopted child, etc. REPRESENTATIVE KELLY said the document also goes into the medical benefits for public employees, retirement, teachers' retirement, etc. The statutes are full of examples where the state currently has in statute exactly what Representative Kelly is trying to put into the Human Rights Act. Representative Kelly feels it is interesting that the judge in the University of Alaska case, Judge Greene, was completely unaware of those statutes when she was trying to determine legislative intent. Number 1938 REPRESENTATIVE KELLY submitted that legislators stand on the shoulders of all who have preceded them. There is plenty of legislative intent to say that in fact, the state or other organizations can discriminate when determining who is eligible for benefits. This is as long as those discriminations meet a certain test. Representative Kelly said he feels that is clearly in statute, but it appears that the Human Rights Act needs to be tweaked a bit. REPRESENTATIVE VEZEY said he knew Representative Kelly spent a lot of time looking into this bill. The question that keeps coming to Representative Vezey's mind is that Alaska has never had a common law marriage statute. Would Representative Kelly say, should the Judge Greene's decision be allowed to stand, that there will be in effect a common law marriage statute? REPRESENTATIVE KELLY could not comment on that question. Number 1982 REPRESENTATIVE ROKEBERG said he may have an answer to that question. He passed out a document. It was a page from the judge's decision, telling of her finding as to marital status in the state. The page said accordingly the court determines that Tumeo and Wattum, the plaintiffs in the case against the University of Alaska, have proven their allegation of discrimination based on marital status. That was the finding of the case. REPRESENTATIVE ROKEBERG asked Representative Kelly if that was why he was bringing this bill forward, to clarify the statute as presently interpreted by the state of Alaska and enforced by the state of Alaska. REPRESENTATIVE KELLY said Representative Rokeberg was exactly right. There is possibly a slight flaw in the current statue. Everyone knows what marriage is. There is no one in this room that does not understand what marriage is. Apparently, however, the statutes were written in such a way that a loophole has been created that a judge was able to "drive a freight train through." That is the reason Representative Kelly wanted to change the statute. If this problem is not fixed, an administrative nightmare is going to be created. REPRESENTATIVE KELLY said that an amendment offered by Representative Robinson will create an administrative nightmare. It clearly discriminates, and it is going to require an administrator to sit there and decide which of these spousal equivalency agreements are legitimate. It is going to require home investigation to determine whether these people are eligible for benefits that they would certainly be eligible for should they choose to get married. REPRESENTATIVE KELLY said no one is barring them from getting married, and they have the opportunity to do so, just as anyone else does, and they can receive these benefits. Once it has been determined that spousal equivalency is equal to marriage, the only way that can be enforced is through the creation of another entity within the body of law, that is like "marriage-lite." REPRESENTATIVE KELLY continued that the only way to do that, because the state has a clear definition of what marriage is but it does not have a clear definition of what domestic partnerships are, is to come up with what can be found in Representative Robinson's amendment. Such an amendment states that a domestic partnership is based on economic considerations. That clearly discriminates. Number 2111 REPRESENTATIVE KELLY noted that the amendment goes on to define a domestic partnership, and how one would set up a domestic partnership. All it really does is discriminate. It does the same thing that the Tumeo-Wattum case accuses the University of Alaska of doing. CO-CHAIR TOOHEY interjected that the amendment was not before the HESS Committee at that time. REPRESENTATIVE ROKEBERG asked if, in the Tumeo-Wattum case, if Judge Greene suggested what she purported to be some recommendations or fixes to her decision. He asked if Representative Kelly could tell HESS Committee members what those recommendations were. Representative Rokeberg also asked if Representative Kelly's bill was not simply just a technical correction to the way the law is worded, and if Representative Kelly could comment on the opinion of the State Human Rights Commission. Number 1216 REPRESENTATIVE KELLY said the State Human Rights Commission is in full support of HB 226. Representative Kelly has a letter from the commission to that effect. One slight change has been suggested in the wording. This is a technical change to a law that is currently functioning and functioning very well. It needs a technical change in it to prevent this type of problem from happening in the future. REPRESENTATIVE KELLY continued that the judge in the Tumeo-Wattum case said essentially that how the university can deal with her decision is to stop giving people benefits to spouses. This way, the university would not be charged with discrimination. Representative Kelly does not think that is a good idea. He likes the marketplace to be able to determine those kinds of things. REPRESENTATIVE KELLY asked to go back to the intent of his bill. The bill in no way is a prohibition of any kind on any kind of activity. It simply says that an organization is not guilty of discrimination should it want to go to the marketplace to negotiate health benefit packages with employees. Number 2214 REPRESENTATIVE ROBINSON said she would not get into a debate right now about her amendment, but she had copies of it and passed it out. She simply wanted to make sure it was understood that HB 226 relates only to retirement and health insurance benefits for employed people. That is who is being affected by the bill-- employed people. She asked if she was correct, and Representative Kelly said that was a fair assumption. REPRESENTATIVE ROBINSON said therefore, she will deal with the debate over discrimination and non-discrimination when the amendment is brought before the HESS Committee. REPRESENTATIVE ROKEBERG asked Representative Kelly if Judge Greene indicated that an affidavit of domestic responsibility, or some similarly named document, would also be another fix to the problem. REPRESENTATIVE KELLY said that was true. There were several suggestions of that sort made by Judge Greene. Representative Kelly did not address that option because that is the heart of the issue. HB 226 is trying to fix that very problem, of saying that these types of agreements have to be recognized. Judge Greene did recommend that is one of the ways to comply with her decision. Representative Kelly simply did not find that as disturbing as the other options. She said spousal agreements can be recognized, or organizations can simply stop giving health benefits to spouses of employees. Number 2285 REPRESENTATIVE ROKEBERG suggested that this point is the crux of the whole case. The court is making public policy, and that is actually the job of the legislators. Number 2315 MILDRED BOESSER, Representing Parents, Families and Friends of Lesbians and Gays (PFLAG)... TAPE 95-29, SIDE A Number 001 MS. BOESSER continued...and the City and Borough of Juneau (CBJ) Human Rights Commission (HRC) opposes HB 226, which is legislation which permits employers to deny benefits to an employee's domestic partner other than a spouse, and permits labor unions to negotiate such a denial of benefits. MS. BOESSER said this bill amounts to discrimination on the basis of marital status. The CBJ HRC is charged with addressing unwarranted discrimination. It opposes the discrimination on the basis of marital status inherent in this bill. If this bill is intended to encourage people to make lifelong commitments, its goal is laudable. But its aim is off-target. MS. BOESSER said society benefits from the formation of unions between committed adults. Commitment, not marriage, is the hallmark of these unions, which can also entail shared finances, mutual dependency, and responsibility for children. The characteristics of a committed adult union do not depend on a marriage license. MS. BOESSER said Alaska is a state of individuals. When these independent people create a household that often does not match a 1950s picture of the family, many couples, in spite of their commitment to, and dependence upon one another, are not married. Number 097 MS. BOESSER noted in some cases these couples are not free to marry. For example, one member of a couple may remain bound by law to a former spouse who will not cooperate or cannot be located to dissolve the marriage. If the remaining partner is unable to afford a lawyer to prosecute a default divorce, he or she remains married indefinitely. Likewise, same sex couples are unable to marry, regardless of the level of their mutual commitment and financial dependence. MS. BOESSER continued that if the state of Alaska is looking for ways to encourage committed unions between adults, it should not place undue emphasis on the legal fact of marriage. Doing so poses a barrier to the many unmarried partners who wish to take personal responsibility for their domestic partners. The very first paragraph of Alaska's Constitution guarantees all of us equal rights, opportunities and protection under the law. The CBJ HRC opposes HB 226 because it discriminates against committed partners who are not married to the detriment of Alaska and in violation of the constitution. Number 194 MARGARET BERCK, Attorney, American Civil Liberties Union (ACLU), testified that the ACLU is opposed to HB 226 and is in favor of the amendments that have been proposed by Representative Robinson. Since there are others present to testify, Ms. Berck declined to take up further time since the amendments were not before the committee for discussion. REPRESENTATIVE ROKEBERG asked if Ms. Berck was familiar with the case Lilly vs. the City of Minneapolis. She said she is not. Number 274 TALMADGE W. BAILEY, Board Member, Southeast Alaska Gay and Lesbian Alliance (SEAGLA), read a prepared statement from the alliance. "Dear Committee members, the Southeast Alaska Gay and Lesbian Alliance urges you to stop HB 226, and not pass this bill out of your committee, as we do not believe that it is in the best interest of the state of Alaska to move this bill forward in its present form. "We could support the bill if it is amended to include domestic partnership language. If passed as is, this bill would become part of a non-discrimination statute, and yet clearly set up an illegal and discriminatory situation. Both legally married individuals and "domestic partners" are in family situations, which involve financial and emotional interdependency. It is currently illegal to discriminate on the basis of marital status, and should continue to be so. We believe that all of Alaska's families should be treated equally. "Benefits provided by the State to employees are tangible compensation, and are calculated as part of the total compensation package given to an employee. It is discriminatory practice to pay some individuals more for equal work, just because they have entered into "the only acceptable" legal contract. Both marriage contracts and spousal equivalency contracts set up financial interdependency, and are legally binding upon individuals. Both of these situations represent a strong commitment between individuals, and are not lightly entered into. "We fully support Representative Caren Robinson's proposed amendment to HB 226, which involves meeting stringent criteria in order to qualify for joint benefits. This may help to allay fears of the "rush" of individuals who would sign up for those benefits. This amendment would easily help distinguish between those who are truly domestic partners, and eliminate those who attempt to establish frivolous claims. "We do not believe it is legal for the state to pick and choose among legal civil interdependency contracts, and determine which ones are "better" than others. Employers should have the option to pay benefits to all those who have entered into this contract solely to employees, and not pay benefits for family members. Number 455 "Lastly, the financial impact of this bill is important to note. Research conducted by major organizations and employers who have implemented joint benefits programs for domestic partners has clearly shown that additional cost to the organization is insignificant. Highest estimates to date are increases of under five percent of benefits cost. This should not be a basis for consideration of this bill. "We strongly urge you to carefully consider this bill, and not to pass it out of your committee." Number 510 MARK TUMEO, Plaintiff in the case Tumeo and Wattum vs. the University of Alaska; and Professor, University of Alaska Fairbanks (UAF), thanked the co-chairs for the opportunity to testify in this very important issue. Over the last two days, Mr. Tumeo had the opportunity to meet with many of the members of this committee. He apologized to Representative Vezey for not being able to meet with him personally. MR. TUMEO had been discussing several aspects of Representative Kelly's bill that would allow discrimination based on marital status, and gut the Human Rights Act of Alaska. Mr. Tumeo had the honor of meeting with Representative Kelly for almost an hour that day on HB 226, and he enjoyed the conversation. As the sponsor of this legislation, Mr. Tumeo wanted a very clear picture of the concerns that generated the bill's introduction. MR. TUMEO asked to take a minute to discuss the two main issues that Representative Kelly indicated caused him to introduce this piece of legislation. First, Representative Kelly claimed an economic concern. As Mr. Tumeo has discussed with many members of this committee, and with Representative Kelly, this concern is not founded in facts. Mr. Tumeo has provided the committee with information from Harvard University that shows domestic partnership benefits, when offered, result in only a minor increase in enrollment, and no increase in insurance premiums. MR. TUMEO continued that such benefits are currently offered in over 60 major universities in the country, including state institutions such as the University of Iowa, the University of New York, and the University of North Carolina. Over 100 private companies and over 60 governmental jurisdictions, including the states of New York, Vermont and Massachusetts, offer domestic partnership benefits, and have demonstrated that there are no economic impacts from such actions. Number 637 MR. TUMEO said therefore, with respect to the economic concerns of HB 226, the bill is unnecessary. However, if the members of this committee remain concerned, he would urge them to refer this bill to a subcommittee where all the pertinent facts can be discussed in detail. The bill is currently on an emotionally-driven fast track. Given the importance of the issue and the high workload the legislators are under, especially during budget time, it would be wise legislative policy to allow more time for the members of this committee to study the bill and the issues surrounding it. MR. TUMEO said if, after reflection, the members feel there is still an economic concern (although Mr. Tumeo doubts that would be the case), they would be able to consider Representative Robinson's amendment. The Robinson amendment clearly draws a tight circle around the number of individuals who would qualify, protects the economic interest of the state and the university, and still protects the Human Rights Act of the state. Number 694 MR. TUMEO recalled that the Robinson amendment was introduced in the State Affairs Committee. It presents the legislature with a win-win situation. It addresses perceived economic concern and reinforces the state's law that discrimination based on marital status is neither fair nor legal. However, Representative Kelly has another reason for introducing this piece of legislation. MR. TUMEO believed he spoke fairly when he said Representative Kelly's real reason for introducing the bill is to ensure that only those relationships that he feels are "good" are recognized. This bill, on its face, sets up a special class of citizens--married people. He confers on this special class special rights, most directly, the right to be paid more for the same work. MR. TUMEO asked what the basis is for being paid more. He answered only that in Representative Kelly's opinion "good marriages" should be supported. Would Representative Kelly consider going so far as to legislate between a "good" marriage and a "bad" one to ensure that only those relationships he felt are good get recognition and benefits? This is clearly not the type of legislation this committee should be involved in. Number 760 MR. TUMEO said the bottom line is that HB 226 is not intended to protect an economic interest. It is intended to deny equal rights to individuals who are not in the type of relationship Representative Kelly supports. Mr. Tumeo believes Representative Kelly has the right to support or argue against whatever types of relationships he wants to. However, it is not reasonable for this legislature to place the personal moral convictions of Representative Kelly into law. MR. TUMEO felt it was important to reiterate HB 226 is being pushed through the process on red herring emotional issues. Further, Representative Kelly has totally misrepresented the case of Tumeo and Wattum vs. the University of Alaska. Mr. Tumeo is very familiar with this case, as he is the plaintiff. The law case in which he is the plaintiff against the university is an administrative lawsuit for public employees. While the decision sets precedent, it applies directly only to Mr. Tumeo and his co- defendant, Kate Wattum. Number 813 MR. TUMEO noted that additionally, as Representative Kelly has pointed out, the laws in place may already protect the state and the Department of Administration from being forced to provide domestic partnership benefits. However, the laws he cited, which those in the court case were made well-aware of, do not apply to the University of Alaska. They apply to the Department of Administration (DOA). The University of Alaska is self insured. It is not under the DOA's insurance policy. MR. TUMEO stated furthermore, such rulings as the one issued by Judge Greene and employment laws dealing with the type of employment and discrimination are not applicable to private companies. That is not how the law works. Representative Kelly's claim that there will be a flood of suits against private companies based on this ruling is wrong. It is not possible. Only public employees can be affected by this. MR. TUMEO said any other individual who wants benefits may apply through the administrative channels of their agency or the university. Once again, while this decision sets precedent, it does not force the giving of the benefits. Furthermore, the university has appealed the decision to the Supreme Court. As a result, Judge Greene's decision is effectively on hold until the Supreme Court rules. Legislation at this time is not only unnecessary, it interferes with the process of the courts. Number 886 MR. TUMEO urged HESS Committee members to direct this bill to a subcommittee to allow calm, rational and detailed analysis of the economic issues. The members of the committee will find, after reviewing the facts, that at best, HB 226 is an unnecessary bill that, as currently written, only serves to gut the Human Rights Act. While Representative Robinson's proposed amendment would fix that issue, such an amendment will be opposed by the bill's sponsor because it would not legislate the type of Draconian interference and personal choice which is the true basis of HB 226. MR. TUMEO concluded by saying upon reflection, he thinks HESS Committee members will agree that this is a divisive hate bill, and that it would be best left in subcommittee and not take up any more of the legislators' valuable time. Number 929 REPRESENTATIVE ROKEBERG thanked Mr. Tumeo for coming, and recognized that this is an important issue to him. He asked Mr. Tumeo to tell HESS Committee members what effect the passage of HB 226 would have on his position with the university and his case, if the bill were to pass. MR. TUMEO answered that if HB 226 were passed as written, it would essentially overturn the court decision as it was issued. The judge looked at the situation in which Mr. Tumeo's side presented documentation that they have assumed the same legal and financial ties as are conferred by a marriage license. Given the fact that the university said it determines benefits based on financial interdependence, and it bases that determination solely on a marriage license, the court says that is obviously using marital status in determinations. That is discrimination based on marital status as defined in the law. MR. TUMEO said HB 226 would allow the university to do that. The argument Representative Kelly makes that Mr. Tumeo could negotiate his benefits is not true for a university professor. Mr. Tumeo is a university professor and has been for the past ten years. Professors do not negotiate their benefit packages. At best, they may be allowed to negotiate the step at which they enter rank. However, now that Mr. Tumeo is a tenured university professor, he does not have the latitude to negotiate benefits, nor is he part of a collective bargaining unit, nor does he ever intend to be a part of one. MR. TUMEO said therefore, he does not have the right that Representative Kelly claims he does. Number 1024 REPRESENTATIVE ROKEBERG said therefore, Mr. Tumeo has a direct, vested interest in this legislation. He did not mean to imply that is why Mr. Tumeo is here, Representative Rokeberg feels it is beyond that. However, Mr. Tumeo pointed out that this is a precedent only for the university. Representative Rokeberg asked if it was not true that even though this is a precedent only for the university it could be taken as a precedent for any other public employee in the state to bring a cause of action against the State of Alaska for the very same reason Mr. Tumeo did. MR. TUMEO said no. It does not imply a cause of action to bring suit. The only thing that would provide a cause of action to bring suit would be a decision by the administrative body within the employee's agency to deny the benefit. For example, another university employee may decide to request benefits from the University of Alaska system. That person would then file the appropriate paperwork. If the university system determined that it did not want to grant the benefits, it would deny that request. MR. TUMEO explained that the employee would then go through the official grievance process of the university. These are set up so the university does not have floods in the court. If, upon reflection in that grievance process, the university found it was making the proper decision given the policies and laws of the land, they would then deny that benefit. That would then be the cause of action if so desired by the employee to go forward for a lawsuit. MR. TUMEO said what the employee would have to do is be able to argue that somehow that decision was illegal, unconstitutional or an abuse of discretion of the administrator that made the decision. In Mr. Tumeo's instance, it was the president of the university. What the court decision allows is for the university to now put into place administrative procedures by which they can make determinations on benefits based on other issues besides marital status. It cannot be based solely on marital status under current law, and that is what the judge's decision says. MR. TUMEO noted that several other universities in the country have faced the same situation and have created mechanisms by which there is a simple form which is filled out, presented, certified, and is legally binding and protects both the institution and the employee, and it is not an administrative burden. That is why there is no cost in implementation in these institutions. Number 1155 REPRESENTATIVE ROKEBERG asked to make a statement, and then invited Mr. Tumeo to agree, disagree or comment. He said he has read Judge Greene's decision, and she made an extremely good case using Alaska statutes. That is why Mr. Tumeo won the case, and Representative Rokeberg applauds him for that. But that is why HESS Committee members are present at this meeting, to make that correction in the statute. It seems to Representative Rokeberg that if anyone is a state employee, having read the case and the plaintiffs' fact pattern, and they want to assert their rights just as Mr. Tumeo does, there is nothing barring them from doing that. Representative Rokeberg asked if Mr. Tumeo agreed. MR. TUMEO said there is one difference in the fact pattern that is of import, and Representative Kelly has accurately pointed that out. If Representative Rokeberg read the case, he is then familiar with the Phillips vs. Wisconsin Personnel Commission case that is cited in the court case. To briefly recap that case, in the state of Wisconsin there is a similar situation as was found in Tumeo and Wattum vs. the University of Alaska. In that case, the state has a non-discrimination law based on marital status. MR. TUMEO explained that the case involved two women. One worked for the state, and one did not. The woman who worked for the state applied for benefits under the state's policy, and requested that her partner be covered. Failure to do so was a violation of the state's non-discrimination law. There is a very similar fact pattern between this case and Mr. Tumeo's case. However, in the state of Wisconsin, there is also a law that is very similar to the one in the state of Alaska. That law states, as a legislative mandate to the DOA, what benefits are to be provided. MR. TUMEO said Representative Kelly quoted that mandate. It says the state shall provide benefits for spouses, dependents, etc. The argument that was made successfully in the Wisconsin case was that clear legislative intent was shown in the case of state employees for discrimination in benefits based on marital status. Number 1250 MR. TUMEO said the court ruled against the plaintiff in that case, and for the state. The difference between the University of Alaska and an employee of the state of Alaska is that the University of Alaska does not obtain its insurance through the DOA. It is a self-insured institution. It is therefore, not subject to that law. The state, and the legislature, has already made it clear it feels some ability to discriminate or have indicated there is the potential for discrimination. MR. TUMEO said he is not a judge, but he has been to law school. Therefore, he will not say that someone from the state may not make that argument and another judge may not interpret that law differently. However, Mr. Tumeo thought a slightly different fact pattern exists for a person who works for an agency of the state. That is one of the reasons, and another example, of why Mr. Tumeo thinks it would be beneficial in this instance to take some time to review this bill and answer some of these questions. MR. TUMEO therefore suggested that the committee solicit input from a DOA representative and some other lawyers. He asked that the bill be discussed in great detail. If that is done, Mr. Tumeo thought HESS Committee members would find that it is not a necessary piece of legislation. The state is already pretty clear as far as benefits go. Mr. Tumeo asked to let his case work its way through. He felt that would save time for other things. Number 1320 REPRESENTATIVE ROBINSON said that Mr. Tumeo has some experience regarding the Domestic Partnership Act. Representative Robinson noted that Representative Kelly commented that he felt her amendment was discriminatory to people who have low incomes. Representative Robinson asked Mr. Tumeo to respond to that. MR. TUMEO felt that interpretation was a misreading and a mischaracterization of the amendment that was presented in the State Affairs Committee. CO-CHAIR TOOHEY interjected that the amendment was not currently before the committee, and asked that it be discussed at a later time. She asked that testimony continue. REPRESENTATIVE ROBINSON asked if Mr. Tumeo could speak on the amendment when it is brought before the committee, since Representative Kelly already brought up the amendment. She asked that Mr. Tumeo be able to respond since he is somewhat of an expert in that area. CO-CHAIR TOOHEY said further testimony should be heard first, and given time, the amendment will be brought before the committee. Number 1367 REPRESENTATIVE ROKEBERG asked Mr. Tumeo if he was aware of the Lilly vs. the City of Minneapolis case. MR. TUMEO said he was, and the case is currently under appeal. REPRESENTATIVE ROKEBERG said therefore, the Mr. Tumeo's reference to the case in documents he handed out should be scratched. MR. TUMEO said no, because the case is under appeal. When a case is appealed, the current law stands until the court proceedings are completed. Number 1426 REPRESENTATIVE ROBINSON asked about the perceived "rush" on the system which some feel may result from Tumeo and Wattum vs. the University of Alaska. She also asked Mr. Tumeo about his experience and knowledge on this topic. MR. TUMEO has several studies that indicate throughout the United States that there are no skyrocketing costs associated with domestic partnership benefits. Enrollment numbers increase somewhere between .3 percent where they are measurable, to no more on the average than two percent. There are no increases in premium costs for those that acquire insurance. In addition, there are no increased costs to the systems for those that are self-insured. MR. TUMEO has copies of those studies if HESS Committee members would like to see them. REPRESENTATIVE ROBINSON asked Mr. Tumeo if, in his studies, he found any facts about common law relationships. Representative Robinson grew up in Texas, and a couple is considered to have a common law marriage after seven years. She is curious about the effects of common law marriages across the nation, and what those relationships have done as far as employee benefits. Number 1450 MR. TUMEO said he has looked somewhat into common law and the effects on benefits, but he is not an expert in that topic. The concept of common law marriage is that after a certain amount of time, an individual may claim the right to financial support on the individual with whom they have been living. Typically, common law marriage claims come up in terms of support cases between individuals. Common law is, by definition, law between individuals. MR. TUMEO explained that when common law marriage statutes come into play is when two people live together for over seven years in a state which recognizes common law relationships. In that seven years, that couple had also presented themselves as married in the way they lived, and in the things they said. If then one person decided to terminate the relationship, the partner would have, under common law, the right to demand support. That is where common law marriage comes in. MR. TUMEO said common law marriage is not a mechanism that has been used in a court cases that he is aware of to access benefits. Benefits are accessed via contractual agreements between parties that are recognized by the institution or employer offering the benefits. Number 1509 MR. TUMEO said common law marriage is only a status recognized by courts in terms of support between individuals. REPRESENTATIVE ROBINSON asked Mr. Tumeo how anyone would know that two people were actually married and getting benefits. MR. TUMEO said that is very difficult. The state director of benefits at the university has written a letter regarding HB 226, saying there is no way to account for the costs, whether they would rise or fall, because the demographics are not kept. As an interesting note, when original benefits were applied for, Mr. Tumeo's co-plaintiff, Kate Wattum, put down "B. McClendon" as the partner to receive benefits. Benefits were subsequently granted by the university. It was not until such time that Ms. Wattum indicated that "B." stood for "Beverly," that benefits were then pulled. MR. TUMEO said at no time during the proceedings or during any other proceedings when people apply for benefits at the university, is a marriage license requested. Number 1558 REPRESENTATIVE DAVIS said Mr. Tumeo indicated the court case showed that Mr. Tumeo and his partner had established legal and economic bases equal to a marriage. MR. TUMEO said no, it was never stated that he and his partner had a status equal to marriage. What was stated was that they had legally binding and legally defensible economic ties. It did not, at any time, state that their relationship was equal to marriage. The claim was that within the university system, benefits are granted based on the fact that the employee has an economic and legally enforceable economic responsibility for a third party. That is why benefits are given. MR. TUMEO continued that the university says the only way it will recognize that legal bind is through a marriage license. What Mr. Tumeo's case said was that he and his partner have a contract, which is legally executed, that gives Mr. Tumeo, as the employee, the same financial and legal responsibility for his partner as is conferred by a marriage license. It does not confer all the other associated rights and privileges of a marriage license. MR. TUMEO has signed a document that states he is legally responsible for his partner's expenses. Given that is the determining factor to the university, it is discrimination based on marital status for it to ignore his contract with his partner, while accepting only a marriage license. MR. TUMEO noted there are literally hundreds, and Mr. Tumeo offered to provide a well-documented list, of benefits that his contract could never provide. No one in the state of Alaska can enter into a contract that provides the same rights and privileges that are provided by a marriage license. Those rights include survivorship rights for property and tax benefits. There is a whole plethora of benefits and privileges that accrue to a marriage license that in no way can be simulated by contract or enforced by the court for non-married individuals. Number 1655 REPRESENTATIVE DAVIS said therefore, apparently there are benefits that only a marriage license can provide, and there are several differences between the contract Mr. Tumeo has with his partner and a marriage contract. MR. TUMEO said there are several differences, and he would be more than happy to provide the chair with a complete listing of the types of benefits that are provided to married individuals that are denied unmarried individuals and cannot be gained through contractual relationships. REPRESENTATIVE DAVIS wanted to make clear that those rights and benefits are not also gained by a semi-marriage license, which he determined is the agreement between Mr. Tumeo and his partner. He asked if it was a "self-made marriage license." MR. TUMEO said the spousal equivalency form that he and his partner filed in no way simulates a marriage license. It is only a legal document that indicates he is economically and legally responsible for the bills accrued by his partner. Number 1703 REPRESENTATIVE VEZEY asked Mr. Tumeo if Representative Vezey appears to be an emotional person. MR. TUMEO said at the moment Representative Vezey does not appear emotional, however, Mr. Tumeo has seen Representative Vezey very emotional at times. REPRESENTATIVE VEZEY asked Mr. Tumeo why he characterizes HB 226 as an "emotional" bill. MR. TUMEO said that is somewhat from experience. At the last committee hearing on this bill, there was quite a bit of emotion and tension present. The bill touches what is traditionally an emotional issue in many venues of discussion. There are issues surrounding relationships that people feel very strongly about. People feel strongly about relationships on religious, ethical and moral grounds. When those are confronted or challenged in any way, it evokes emotion. MR. TUMEO noted that does not necessarily mean all people respond emotionally at the instant the topic arises. However, there is a building sense that can be seen in many places across the country, that gays and lesbians have gone too far. Mr. Tumeo disagrees with this. He believes that it is his responsibility and his moral obligation to ask for equal treatment. Such requests often evoke a lot of emotion. REPRESENTATIVE VEZEY asked if Mr. Tumeo would characterize this bill as an economic issue. MR. TUMEO replied that if the bill did address an economic issue, Representative Robinson's amendment, as proposed in the State Affairs Committee, clearly draws the economic tight circle which protects the state, protects the university, and protects the Human Rights Act of the state of Alaska. Number 1722 REPRESENTATIVE VEZEY asked Mr. Tumeo if he would not characterize this bill as a basic social issue. MR. TUMEO said that depends on what Representative Vezey means by "social issue." If relationships, the interactions between individuals, and privacy are social issues valid for legislative intent, then this bill could be characterized as a social issue. In fact, at times in the past the country has had legislation preventing interracial marriages and interfaith marriages. Therefore, Mr. Tumeo imagines this bill would fall into the social arena. MR. TUMEO said mankind has progressed in society to the extent that determining what type of relationship is good and bad is not something that is typically left to legislative activities. However, it is definitely something for social discussion. Number 1801 CO-CHAIR TOOHEY asked to move on, because other people are testifying. She announced the bill would be held over, and asked how long Mr. Tumeo would be in town. He said he leaves the following morning, as he has classes to teach. CO-CHAIR TOOHEY again announced the bill would be held over, because the HESS Committee members will have to do some work on it. Number 1832 SARAH BOESSER, Board Member, Committee for Equality (CFE), said her organization is statewide. The CFE askes that this discriminatory bill be stopped or amended to include domestic partners as suggested by the superior court. This bill intentionally undermines the state human rights statute, and that bodes ill for everyone. If this one exception for marital status is made here, other exceptions may follow. Upon what basis would these exceptions be allowed? MS. BOESSER said human rights laws exist in part to educate people as to what practices are discriminatory. This is so people can avoid illegal actions. In that light, the proper response to the court ruling would be the exact opposite of this bill. Lawmakers should be educated by the ruling and should conclude that this is illegal and must stop. To say instead, "We don't support marital discrimination except in certain cases," is to act in bad faith with regard to the promise of non-discrimination made to the public years ago. Number 1870 MS. BOESSER said the Juneau Human Rights Commission opposes this bill for just that reason. Ms. Boesser is sorry the State Human Rights Commissioners were not as protective of the statute. However, they may be simply acknowledging the legislature's power to amend its own law despite the court's finding that such a position violates the very statute they were appointed to uphold. MS. BOESSER said her organization supports the Robinson amendment. It does not violate statute since by adding "domestic partners," financial interdependence, not marital status is the criteria for benefits. And, as HESS Committee members heard, Harvard University research and other research finds that around the country enrollment increases of domestic partners is extremely minimal. With limiting guidelines, recognition of domestic partners does not result in increased benefit costs. Number 1897 MS. BOESSER concluded by saying thus, the financial impact of this amendment is negligible. However, if the bill passes without the amendment, the state will certainly suffer ongoing litigation costs. HESS Committee members face many important issues. Going backwards in Human Rights Laws is not one of them. The session is short, and Ms. Boesser asked HESS Committee members to save the legislature time, unnecessary cost and divisiveness by stopping this bill as written or by amending it to include domestic partners. Number 1918 REPRESENTATIVE ROKEBERG asked if discrimination concerning employee benefits and domestic relation laws were not important issues. MS. BOESSER said they were very important issues. That is why they should not be discriminatory on a basis that has been found to be illegal for years. Number 1943 DANIEL COLLISON, Vice President, SEAGLA, said as a representative of that organization he opposes passage of HB 226 which will deny domestic partner benefits to employees of the University of Alaska. Mr. Collison said one of the major arguments put forth by Representative Kelly in support of his bill is that it would be financially burdensome to the university health care plan if domestic partner benefits were extended. MR. COLLISON said this is the one issue he would like to address in his testimony. The evidence overwhelmingly suggests otherwise. In particular, Mr. Collison submitted a letter and attachments from the University of Iowa benefits administrator, a packet containing seven articles on this subject, and a comprehensive listing of corporations, universities and government entities which have extended domestic partner benefits to their employees. MR. COLLISON said those who would deny domestic partner benefits predicate a financial burden on three myths. Myth #1: If the University of Alaska opens its health care plan to the domestic partners of its employees, the plan will be inundated with new enrollees. Number 2006 MR. COLLISON explained, however, that the experience of the university of Iowa counters this myth. The University of Iowa extended benefits to an employee's common law marriage partner in 1953. In 1992, the same benefits were extended to an employee's same-sex domestic partner. Currently, the university employs approximately 26,000 people with 14,000 people eligible for benefits. Of this number, only nine-tenths of one percent (.09 percent) are in a common law marriage, while only two-tenths of one percent (.02 percent) are covered under the domestic partner relationship. MR. COLLISON continued that the University of Iowa's experience is consistent with that of other employers. In 1993, the Seagul Company executive letter reported that in those companies which extend benefits to domestic partners, participation rates are less than five percent of the work force, and frequently less than two percent of the work force. MR. COLLISON presented Myth #2: Extending health care benefits to the domestic partners of University of Alaska employees will be financially burdensome to the plan. MR. COLLISON advised that a study appearing in the June, 1994 CCH Employee Benefits Management Directions find the plans offering domestic partner health coverage to same-sex couples experience about a one percent total increase in health care costs. Plans offering health care coverage to all domestic partners experience approximately a three percent increase in health care costs. Number 2070 MR. COLLISON stated Myth #3: The medical bills of a gay male domestic partner, with, for example, AIDS-related claims, are more costly than claims of an employee's spouse or dependent. MR. COLLISON said the authors of an article in "Employee Benefit Practices" report "there is no evidence to indicate the average health care cost of a domestic partner, same sex and/or opposite sex, will be significantly higher than that of a spouse." For example, the average AIDS-related claim currently figures at $119,000. A premature birth, however, can cost as much as $1 million. Two weeks in intensive care following a heart attack can cost in excess of $50,000. This figure does not include surgery, related costs and follow up. MR. COLLISON said in fact, the experience of the University of Iowa might suggest that a health plan benefits from enrolling domestic partners rather than spouses of employees. In 1994, the University of Iowa discovered that claims for persons in domestic partner relationships averaged only $224 per person. A regular spousal claim averaged approximately $2,700. Number 2125 MR. COLLISON stated the facts overwhelmingly suggest that should the University of Alaska extend domestic partner benefits to its employees there would in fact be no significant added financial cost to the university's health plan. If the committee yet harbors concerns about the cost of such a benefit, Mr. Collison would suggest they refer the matter to a subcommittee for a thorough examination of all financial considerations. Furthermore, he would suggest that the Robinson amendment, which strictly defines a domestic partner relationship, will prevent any abuse of such benefits and minimize any cost to the university health plan. MR. COLLISON presented packets of information to HESS Committee members. Number 2166 JOHN GAGUINE, Assistant Attorney General, Department of Law, said his department is responsible for the tracking of this bill. He is present at the invitation of Co-Chair Toohey to answer questions. REPRESENTATIVE VEZEY thought the underlying question he has concerns the fact that the state of Alaska definitely does not have provisions for common law marriage. Representative Vezey's understanding of common law marriage is substantially different than what was explained by Mr. Tumeo. Representative Vezey asked for Mr. Gaguine's definition. MR. GAGUINE said the Alaska Supreme Court has made it very clear that Alaska does not have common law marriage in this state. Therefore, he is not clear on the concept. However, his understanding is that common law marriage exists when a couple has lived together for a certain period of time, and they have presented themselves as husband and wife. They are then considered married. REPRESENTATIVE VEZEY said therefore, Mr. Gaguine's understanding of the concept is the same as his. He asked if Mr. Gaguine would interpret the new Alaska law as handed down by Judge Greene as establishing a sector of common law marriage. Number 2227 MR. GAGUINE said that is a hard question. To the limited extent that benefits are being conferred, the issue can be looked at in that way. Mr. Gaguine would, however, say no because common law marriage, in the states that have it, is so much broader than just this limited decision dealing with health care benefits. CO-CHAIR TOOHEY said going back in Alaska's history, traditionally Native marriages were commitments between two people that said, "We will live together." The relationships were dissolved equally as efficiently, by saying "We will no longer live together." She asked if Mr. Gaguine knew anything about that. He did not. CO-CHAIR TOOHEY also asked what will happen if Judge Greene's decision is upheld in the appeal. MR. GAGUINE said that would depend on if the decision is made retroactive. Given the intent behind HB 226, Mr. Gaguine said the legislature would want to make it clear that the intent is not to change to the law but to restate what the legislature feels the law is. This is under the assumption that the legislature feels Judge Greene's decision was not correct, and therefore it is not changing the law, it is only restating the existing law. MR. GAGUINE said again, if the Supreme Court were to uphold Judge Greene's decision, and if the Supreme Court finds the bill is simply a change in the law and not just a clarification in the law, and it is not made retroactive, then the plaintiffs in that case would be entitled to coverage for a certain period of time. Again, however, it would seem to Mr. Gaguine that coverage would cease when the bill became effective (if the bill is passed). TAPE 95-29, SIDE B Number 000 CO-CHAIR TOOHEY asked if the Administration was taking a position on this bill. MR. GAGUINE said he could not speak to that. He understands that at the last committee meeting, the director of the Division of Retirement and Benefits spoke in favor of HB 226. REPRESENTATIVE ROBINSON interjected that the director was not authorized. That is the reason he is not present at the current meeting. She said she could probably get that in writing. Number 056 REPRESENTATIVE ROKEBERG asked Mr. Gaguine if he was familiar with the case Lilly vs. The City of Minneapolis, and he was not. Representative Rokeberg said it was published on January 31, 1995. It is in the Minnesota Appeals Court. Representative Rokeberg asked if Mr. Gaguine was familiar with the Baehr vs. Lewin case from Hawaii, and he was. REPRESENTATIVE ROKEBERG said Mr. Gaguine pointed out that it would be up to the Alaska Supreme Court as to the disposition of the Tumeo-Wattum case. If the decision were thrown out, there would be no claim on the part of Mr. Tumeo at all. MR. GAGUINE answered that would be correct. REPRESENTATIVE ROKEBERG said if the decision is upheld, then according to Mr. Tumeo there would be just a claim on the part of University of Alaska employees versus other state employees. He asked if that was correct. MR. GAGUINE said that was the key question. Mr. Tumeo pointed out the statute governing health insurance procured by the DOA which does say, as he indicated, that such insurance must be subject to a provision that it cover each eligible employee, the spouse and the unmarried children chiefly dependent upon the eligible employee for support. Mr. Tumeo seemed convinced the state would be protected if it was faced with a suit brought by a state employee along the same lines as Tumeo and Wattum vs. The University of Alaska. To Mr. Gaguine's knowledge, the state has not been faced with any such claim to date. Number 210 MR. GAGUINE has spoken with a lawyer for the university, and he has not seen a copy of Judge Greene's decision on reconsideration. What was given today is the university's petition for reconsideration. Mr. Gaguine did not know whether Judge Greene said, "No, the statute does not protect anybody," or whether she said "No, the statute does not protect the university." MR. GAGUINE continued that if, in fact, Judge Greene said the statute does not protect the university and she did not make a decision whether or not it protects the state, then maybe the state may have adequate protection. Number 297 REPRESENTATIVE ROKEBERG asked if any state employee with a fact pattern similar to Mr. Tumeo's or Ms. Wattum's brought a cause of action suit against the state for similar circumstances, given Judge Greene's ruling, is there any precedent set or would that be up to the courts to decide. MR. GAGUINE said obviously, the state is more likely to get sued now than before Judge Greene's opinion. He reiterated that this issue is whether the other statute provides the state with absolute protection. The state would hope the court would reach that conclusion. Number 362 REPRESENTATIVE ROKEBERG asked if the areas of discrimination, i.e., employee health benefits and the body of law around domestic relations are both compelling of state interest and a matter of statewide concern. MR. GAGUINE said that is a policy question that he would rather not answer. REPRESENTATIVE ROKEBERG recalled that Mr. Gaguine said he is familiar with the case from Hawaii. Representative Rokeberg summarized that the Hawaiian Supreme Court ruled, based on the amendments to the Hawaii constitution and the civil rights provision on the word "sex." They said it was not related to gender but also allowed sexual orientation. Therefore, the court ruled that same-sex marriages were allowable under the Hawaiian constitution. MR. GAGUINE advised that the court did not go quite that far. CO-CHAIR TOOHEY told Representative Rokeberg that same sex marriages were not being discussed. What was being discussed was marital status at the university for health care benefits. This can include live-in partnerships or men and women who do not want to get married. Same-sex relationships are not the only issue, and eventually Representative Rokeberg's bill concerning marriage will be heard. REPRESENTATIVE ROKEBERG read a footnote on page 15 of Judge Greene's ruling. It said, "The University would have to show that same sex marriage is prohibited in Alaska....The University provided no legal argument that such marriages are prohibited." Representative Rokeberg asked Mr. Gaguine what the effect of this footnote would be on precedent. Number 504 MR. GAGUINE felt the footnote says the judge did not want to decide that issue. She is ducking the issue, basically. MR. TUMEO asked to reply to a question. He said that Representative Rokeberg asked about the decision upon remand, and the request for reconsideration. It was a very simple, two- paragraph decision in which the court said two things. The university asked for reconsideration claiming the court had missed the very laws that Representative Kelly and Mr. Tumeo have discussed in terms of protection to the state. MR. TUMEO explained that the judge said two things. She said the court cannot miss something that was not presented to it (the university never brought those issues up in court). She also said the university had not proven that the law showed the intent of the legislature to discriminate against marital status for the university. That is not the exact wording, however, the main point is that Judge Greene ducked the issue of whether it applied to the state or not. She did not approach that issue. She basically said, the university did not make this argument before, therefore, it is not appropriate to make it on request for reconsideration. Number 601 REPRESENTATIVE ROBINSON asked Mr. Gaguine if there is any way anyone could find out how many state employees have filed for insurance who are actually not married. MR. GAGUINE said he would not know that information. Number 637 MARYLOU BURTON, Director of Statewide Budget, University of Alaska Fairbanks, read in a statement from the university into the record. "The University supports this bill. As you know, Judge Greene's decision in the Tumeo-Wattum case was that under state law, the University cannot restrict its health care benefits on the basis of marital status. We are appealing that ruling, but if we fail in our case, we may be faced with the need to limit benefits in some way, which could be not covering spouses or limiting the overall amount of benefits to individuals just to live within our financial constraints. "This bill provides the University and other employers the option to limit benefits to employees and their spouses and dependents." MS. BURTON noted that she had just read a basic statement of support for the bill. Number 714 REPRESENTATIVE ROBINSON asked Ms. Burton how much she thought the loss of Tumeo's case would cost the university. MS. BURTON said the university does not have that information at this time. In addition, she did not believe the university has the kind of data that can provide that information at this time. Number 735 REPRESENTATIVE ROKEBERG asked if it would cost more than $100. MS. BURTON said she could not say if it would, but she would suspect so. CO-CHAIR TOOHEY asked who is paying court costs for Tumeo and Wattum vs. The University of Alaska. MR. TUMEO said he paid for his own case, and Ms. Burton said the university is paying for its case. CO-CHAIR TOOHEY asked if there is any connection with the Administration of the state of Alaska, or are the university's court costs strictly out of the budget of the University of Alaska? MS. BURTON answered that to the best of her knowledge, the court costs were coming strictly out of the university's budget. Number 722 REPRESENTATIVE ROBINSON asked how much the case has cost so far. MS. BURTON answered that she does not have that information, however, someone at the university probably knows, and she could get that information for the committee. MR. TUMEO spoke to the plaintiff costs. He has individually accumulated $10,000 in legal fees, and his attorney is charging him half price. He also noted he has a legal defense fund, if anyone in the room wanted to contribute. REPRESENTATIVE ROBINSON would assume the university has personal policies that can be amended that would probably correct this problem. MS. BURTON replied that the university does have personnel policies that could presumably could be corrected in such a way that would address the problem--if that is the way the case is decided. Number 852 REPRESENTATIVE BRICE asked if currently the university pays for spousal benefits. MS. BURTON said she has been back with the university for about one and one half months, and she was sent to the HESS Committee to read a statement in lieu of someone who could not be present. She wanted to attach that disclaimer to her comments. However, she said under the university's policy, you have to pay an extra amount of money if you want your spouse or dependents covered. The coverage is not just automatic. REPRESENTATIVE BRICE said therefore, the employee pays for the increase, and Ms. Burton said yes. Representative Brice then suggested that in the instances of Tumeo and Wattum, the university would not even allow them to pay for the increase. MR. TUMEO said that was correct. CO-CHAIR TOOHEY asked the cost. MS. BURTON believed the cost was about $6.50 every pay period. Number 892 MR. TUMEO said the university charges depending on which package is chosen for you and your partner. The charge is somewhere between $4 to $7 a pay period. The university also provides a small amount, so there is some minimal charge to the university. When, in the law case, the university was asked what that amount was, the university was unable to produce statistics to show how much that was because the amount is not big enough for them to keep track of in their system. MR. TUMEO continued that the university would not even allow him to pay the university's portion to get the benefit, because it did not know how much that portion was. REPRESENTATIVE BRICE said that is what this bill is trying to restrict. It is not being requested that the university or any employers give benefits away. Just the opposite, people are willing to pay for the benefits. MS. BURTON said she could not speak on this issues. CO-CHAIR TOOHEY told her that these are the kinds of questions that HESS Committee members need answers to. She then asked Mr. Gaguine if it was the place of the legislature to intervene in a decision in the courts before that decision is finalized. MR. GAGUINE said that is obviously a policy decision for the legislature. He thinks, however, at this point there is a final Superior Court decision. The legislature is not intervening in the beginning of a lawsuit before there has been any decision rendered. There has been a decision rendered by the superior court. Number 996 CO-CHAIR TOOHEY summarized Mr. Gaguine's comments as the decision has already been made. MR. GAGUINE said the final word has not been handed down yet, as the case is in appeal. CO-CHAIR TOOHEY asked if, in fact legislation is passed that says no non-employees will be accepted on benefits unless they are duly married with a license, can the court's decision be made retroactive. MR. GAGUINE said there might be problems making the decision retroactive. There is a rule that states if the existing law has been relied upon, a change in that cannot be retroactive. Generally, some statutes can be made retroactive, however, Mr. Gaguine felt there would be problems making any decisions here retroactive. CO-CHAIR TOOHEY asked HESS Committee members what other information they would like to request from those testifying so the bill can be heard again promptly. She also asked to hear the amendment at the next hearing of the bill. REPRESENTATIVE BRICE said he still would like someone from the DHSS to address some questions. Co-Chair Toohey agreed that would be appropriate. REPRESENTATIVE ROKEBERG said there has been a brand new case that has come down, and he would like some clarification on the existing benefit statute for the state of Alaska. He suggested that Mr. Gaguine provide that information. He asked Mr. Gaguine to look up the case Lilly vs. The City of Minneapolis, and then to study the Minnesota statute as it relates to the Alaska statute. The relation will be evident. CO-CHAIR TOOHEY said she would also like a position paper from the DOA. Number 1134 REPRESENTATIVE ROBINSON asked to speak to Representative Kelly's comments on her amendment. Representative Kelly had commented that her amendment was discriminatory toward low income people. She asked HESS Committee members to take the time to read her amendment. It clearly states that it refers to a domestic partners who reside together. There is a whole series of criteria that must be met, such as having a joint banking account. REPRESENTATIVE ROBINSON stressed it was important to remember that only employed people are being addressed in her amendment and in the bill, not unemployed people. There is a whole series of criteria, and the couple must meet five of those criteria. One of them is having entered into a legally binding domestic partnership agreement. That does not cost anything to the partners. REPRESENTATIVE ROBINSON wanted to make it clear that those who are "the working poor" could definitely enter into a domestic partnership act. This amendment does not discriminate against people who are poor. Representative Robinson wanted to get that on the record. Number 1205 MARY GRAHAM, Interested Citizen, said she is opposed to HB 226 which appears to now say, "We, the State of Alaska, don't want to discriminate based on marital status in general, but we will allow extra compensation by public employers for persons who are legally married to be considered a non-discriminatory practice." In short, it says the state is not going to allow discrimination but anyone can discriminate. That is how it reads to Ms. Graham. MS. GRAHAM said, as has been pointed out in previous hearings on this bill, persons can enter into civil contracts of many sorts to become financially obligated to each other. Therefore, Ms. Graham feels HB 226 is a detriment to equal protection for all Alaskans, no an enhancement. Ultimately, it provides not equal rights but special rights for married persons. MS. GRAHAM urged HESS Committee members to dismiss this bill in light of Judge Greene's ruling, and get on with the other important business of this legislature. As noted in Judge Greene's decision, in the two Supreme Court cases that have challenged discrimination under the Human Rights Act, the courts conclude that protection against discrimination based on marital status protects the rights of unmarried couples. Although these were housing cases, Ms. Graham believes the same principles apply. Number 1285 MS. GRAHAM asked if the state should tell landlords they cannot discriminate, but public employers may. Ms. Graham did not think so, and it seems illogical to pass legislation that has already been determined to discriminate. If HESS Committee members choose to move forward with this bill, Ms. Graham asked that the bill be amended to include domestic partnership language to continue to hold to the intent of the Human Rights Act and not encourage discrimination. Number 1306 CO-CHAIR TOOHEY thanked Ms. Graham and asked a question to Mr. Tumeo. She asked if he would be allowed to pay $500 a month for the insurance if he wanted to. MR. TUMEO answered there is some level at which, of course, an individual can buy insurance. The standard is because the university is a large pool, it is less expensive to buy there. The standard cost, as he understands it, is somewhere between $150 and $190. Mr. Tumeo and his partner offered to pay that to the university and the university would not allow him to enroll his partner. CO-CHAIR TOOHEY asked when HESS Committee members would be able to hear testimony again, and it was tentatively decided that the bill would be heard again in nine days, on Thursday, April 6.
| Document Name | Date/Time | Subjects |
|---|