Legislature(1997 - 1998)
03/19/1998 08:02 AM House STA
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE STATE AFFAIRS STANDING COMMITTEE
March 19, 1998
8:02 a.m.
MEMBERS PRESENT
Representative Jeannette James, Chair
Representative Ivan Ivan, Vice Chairman
Representative Ethan Berkowitz
Representative Joe Ryan
Representative Kim Elton
Representative Mark Hodgins
MEMBERS ABSENT
Representative Al Vezey
COMMITTEE CALENDAR
HOUSE BILL 463
"An Act establishing the Alaska public building fund; and providing
for an effective date."
- MOVED HB 463 OUT OF COMMITTEE
HOUSE BILL 468
"An Act relating to damages awarded in complaints before the State
Commission for Human Rights."
- HEARD AND HELD
SENATE BILL 307 AM
"An Act relating to conditions for filling vacancies in the office
of United States senator; and providing for an effective date."
- HEARD AND HELD
HOUSE BILL 408
"An Act establishing the Alaska Seismic Hazards Safety Commission."
- MOVED CSHB 408(STA) OUT OF COMMITTEE
HOUSE BILL 466
"An Act relating to violations of state election laws."
- SCHEDULED BUT NOT HEARD
(* First public hearing)
PREVIOUS ACTION
BILL: HB 463
SHORT TITLE: ESTABLISH ALASKA PUBLIC BUILDING FUND
SPONSOR(S): STATE AFFAIRS
Jrn-Date Jrn-Page Action
3/04/98 2499 (H) READ THE FIRST TIME - REFERRAL(S)
3/04/98 2499 (H) STATE AFFAIRS, FINANCE
3/19/98 (H) STA AT 8:00 AM CAPITOL 102
BILL: HB 468
SHORT TITLE: DAMAGE AWARDS HUMAN RIGHTS COMMISSION
SPONSOR(S): RULES
Jrn-Date Jrn-Page Action
3/09/98 2565 (H) READ THE FIRST TIME - REFERRAL(S)
3/09/98 2565 (H) STATE AFFAIRS
3/19/98 (H) STA AT 8:00 AM CAPITOL 102
BILL: SB 307
SHORT TITLE: U.S. SENATE VACANCIES
SPONSOR(S): SENATOR(S) HALFORD, Leman, Green, Miller, Torgerson,
Pearce, Ward, Phillips, Taylor, Kelly; REPRESENTATIVE(S) Barnes
Jrn-Date Jrn-Page Action
2/16/98 2525 (S) READ THE FIRST TIME - REFERRAL(S)
2/16/98 2525 (S) JUDICIARY
3/02/98 (S) JUD AT 1:30 PM BELTZ ROOM 211
3/02/98 (S) MINUTE(JUD)
3/03/98 (S) RLS AT 11:35 AM FAHRENKAMP RM 203
3/03/98 (S) MINUTE(RLS)
3/03/98 2716 (S) JUD RPT 2DP 1NR
3/03/98 2716 (S) DP: TAYLOR, MILLER NR: PARNELL
3/03/98 2716 (S) ZERO FISCAL NOTE (GOV)
3/04/98 2735 (S) RULES TO CALENDAR 3/4/98
3/04/98 2737 (S) READ THE SECOND TIME
3/04/98 2737 (S) ADVANCED TO THIRD READING UNAN
CONSENT
3/04/98 2737 (S) READ THE THIRD TIME SB 307
3/04/98 2737 (S) COSPONSOR: KELLY
3/04/98 2737 (S) PASSED Y19 N1
3/04/98 2737 (S) EFFECTIVE DATE(S) SAME AS PASSAGE
3/04/98 2737 (S) DUNCAN NOTICE OF RECONSIDERATION
3/05/98 2756 (S) RECON TAKEN UP - IN THIRD READING
3/05/98 2756 (S) RETURN TO SECOND FOR AM 1 UNAN
CONSENT
3/05/98 2756 (S) AM NO 1 OFFERED BY DONLEY
3/05/98 2756 (S) AM NO 1 ADOPTED Y11 N9
3/05/98 2757 (S) AUTOMATICALLY IN THIRD READING
3/05/98 2757 (S) PASSED ON RECONSIDERATION Y15 N5
3/05/98 2757 (S) EFFECTIVE DATE(S) SAME AS PASSAGE
3/05/98 2759 (S) TRANSMITTED TO (H)
3/06/98 2533 (H) READ THE FIRST TIME - REFERRAL(S)
3/06/98 2533 (H) STATE AFFAIRS
3/19/98 (H) STA AT 8:00 AM CAPITOL 102
BILL: HB 408
SHORT TITLE: SEISMIC HAZARDS SAFETY COMMISSION
SPONSOR(S): REPRESENTATIVES(S) DAVIES
Jrn-Date Jrn-Page Action
2/16/98 2329 (H) READ THE FIRST TIME - REFERRAL(S)
2/16/98 2329 (H) STATE AFFAIRS, FINANCE
3/19/98 (H) STA AT 8:00 AM CAPITOL 102
WITNESS REGISTER
PATRICK LOUNSBURY, Secretary
to Representative James
Alaska State Legislature
Capitol Building, Room 102
Juneau, Alaska 99801
Telephone: (907) 465-3743
POSITION STATEMENT: Presented HB 463.
JACK KREINHEDER, Senior Policy Analyst
Office of Management and Budget
Office of the Governor
P.O. Box 110020
Juneau, Alaska 99811-0020
POSITION STATEMENT: Explained the provisions HB 463.
KEITH GERKEN, Architect
Division of General Services
Department of Administration
P.O. Box 110210
Juneau, Alaska 99811
Telephone: (907) 465-5683
POSITION STATEMENT: Answered questions on HB 463.
JAMES HORNADAY, Legislative Assistant
to Representative Pete Kott
Alaska State Legislature
Capitol Building, Room 204
Juneau, Alaska 99801
Telephone: (907) 465-6848
POSITION STATEMENT: Presented HB 468.
MITCHELL GRAVO, Lobbyist
Alaska Hotel Motel Association
170 Botanical Circle
Anchorage, Alaska 99515
Telephone: (907) 244-2884
POSITION STATEMENT: Provided information on HB 468.
PAULA HALEY, Executive Director
Alaska Human Rights Commission
800 A Street, Number 204
Anchorage, Alaska 99501
Telephone: (907) 276-7474
POSITION STATEMENT: Testified in opposition to HB 468.
FRANK ROSE, President
Alaska Lodging Management
P.O. Box 72478
Fairbanks, Alaska 99707
Telephone: (907) 474-8555
POSITION STATEMENT: Testified on HB 468.
KAREN ROGINA, Executive Director
Alaska Hotel and Motel Association
P.O. Box 104900
Anchorage, Alaska 99510
Telephone: (907) 272-1229
POSITION STATEMENT: Testified on HB 468.
BILL STOLTZE, Legislative Assistant
to Senator Rick Halford
Alaska State Legislature
Capitol Building, Room 121
Juneau, Alaska 99801
Telephone: (907) 465-4958
POSITION STATEMENT: Testified on behalf of Senator Halford,
sponsor of SB 307.
JIM BALDWIN, Assistant Attorney General,
Civil Division, Office of the Attorney General
Department of Law
P.O. Box 110300
Juneau, Alaska 99811
Telephone: (907) 465-3600
POSITION STATEMENT: Provided testimony on SB 307.
REPRESENTATIVE JOHN DAVIES
Alaska State Legislature
Capitol Building, Room 422
Juneau, Alaska 99801
Telephone: (907) 465-4457
POSITION STATEMENT: Sponsor of HB 408.
ROD COMBELLICK, Chief
Engineering Geology
Division of Geological and
Geophysical Surveys
Department of Natural Resources
794 University Avenue, Suite 200
Fairbanks, Alaska 99707
Telephone: (907) 451-5007
POSITION STATEMENT: Testified in support of HB 408.
NICO BUS, Manager
Administrative Services
Department of Natural Services
and Manager
Administrative Services
Department of Military and
Veterans Affairs
400 Willoughby Avenue
Juneau, Alaska 99801
Telephone: (907) 465-2406
POSITION STATEMENT: Testified in support of HB 408.
ACTION NARRATIVE
TAPE 98-38, SIDE A
Number 0001
CHAIR JEANNETTE JAMES called the House State Affairs Standing
Committee meeting to order at 8:02 a.m. Members present at the
call to order were Representatives James, Ivan, Ryan, and Elton.
Representatives Berkowitz and Hodgins arrived at 8:07 a.m.
HB 463 - ESTABLISH ALASKA PUBLIC BUILDING FUND
Number 0003
CHAIR JAMES announced the first order of business is HB 463, "An
Act establishing the Alaska public building fund; and providing for
an effective date," sponsored by the House State Affairs Committee.
Number 0012
PATRICK LOUNSBURY, Secretary to Representative James, Alaska State
Legislature, came before the committee. He said HB 463 is an act
establishing the public building fund, it's a concept that we
believe is consistent with the public's desire for more responsible
accountable government. It's the idea that agencies actually pay
rent for the space allocated into a special account created in the
general fund. This money would then be used for maintenance and
dovetails pretty nicely with the deferred maintenance priority that
the majority has recognized. Whereas, the deferred maintenance
task force is an effort to catch up, the Alaska public building
fund lets us keep up.
Number 0037
JACK KREINHEDER, Senior Policy Analyst, Office of Management and
Budget (OMB), Office of the Governor, came before the committee.
He asked if Keith Gerken, Department of Administration, could join
him.
CHAIR JAMES thanked both of them for their assistance on deferred
maintenance issues.
MR. KREINHEDER noted they discussed the rent concept in prior
testimony on the deferred maintenance task force bill. He stated
HB 463 is fairly straightforward, all it does is establish a fund,
there's no direct fiscal impact, pro or con, just from establishing
the fund but it is an important piece of improving maintenance and
management of state facilities. As was mentioned in committee a
few weeks ago, the Administration is pursuing - putting a rent
structure in place for state facilities. We're looking at putting
it into place for the fiscal year 2000 budget on sort of a pilot
basis for a few facilities. We're still considering which
facilities to include, what is doable for that first year, and so
on.
MR. KREINHEDER indicated it is possible to do a rent-structure
without this public building fund, however, we would be kind of
hamstrung without an account to put this money into because we
could collect rent and pass the rent onto the Department of
Transportation and Public Facilities (DOT/PF), whichever department
is maintaining the buildings but we wouldn't be able to have the
money carry on from year-to-year. To really deal with the long-
term maintenance for state facilities, you need to be able to save
some money to replace systems or do major maintenance on systems
down the road rather than having to deal with (indisc. - noise) on
a year-to-year basis. If this bill did not pass, for whatever
reason, I think we would probably proceed with the rent but this is
really a key piece of the project.
Number 0109
KEITH GERKEN, Architect, Division of General Services, Department
of Administration, was next to testify. He said this simply
creates a mechanism to collect rent and to use, to spend it and be
accountable for it. But if the committee wants to talk about how
it would work or why that makes sense we could do that...
CHAIR JAMES said they'll see what questions the members will have.
She noted Representative Hodgins and Berkowitz are present.
Number 0124
REPRESENTATIVE KIM ELTON said he would be interested in the
thoughts that were behind designating the Department of
Administration rather than the Department of Transportation and
Public Facilities as the manger of the fund.
MR. GERKEN replied this debate has gone on for a long time, OMB,
DOT/PF and Administration have been working jointly for about two
years on a number of facilities issues. One is where the function
(indisc.) building responsibilities be, and the consensus has
generally been, amongst the three entities, that DOT/PF would like
to be a transportation oriented agency and that the Department of
Administration is the general services provider to other services
within government services to other agencies and that at least the
management of the fund, if not the provision of service, should be
in the Department of Administration. That's their sense at this
time and DOT/PF is in agreement with that.
CHAIR JAMES stated she supports having the fund managed by the
Department of Administration.
Number 0149
REPRESENTATIVE FRED DYSON said, "Aren't what we are doing here is
making a mechanism so that the dedicated funds, kind of like
program receipts that come from the rent, will no longer go into
the general fund with this bill?" He asked if that was correct.
MR. KREINHEDER responded this public building fund would be an
account within the general fund and money would have to be
appropriated from it by the legislature every year for maintenance
purposes.
Number 0164
CHAIR JAMES explained it is not a dedicated fund, it is a
designated fund, legislation was passed last year to specifically
identify it - a lot of program receipts are designated for a
specific use. That does not negate the possibility that the
legislature could take the money and do something else with it, the
problem is that they would be politically stopped from doing that.
She asked wouldn't this be another one of the sweeps that we would
have to do as long as we still owe the Constitutional Budget
Reserve. The issue was that as long as we owe money to the
Constitutional Budget Reserve, then at the end of every fiscal year
any money that's left over in any general fund account, with
exception of the earnings (indisc.) of the permanent fund, get
swept away to pay back into the Constitutional Budget Reserve. So
every year when we do a budget, as long as we owe the money and
it's probably billions or more now, that we have use out of that
fund, then we have to have a three-quarter vote to undo the sweep
and put them all back again. She indicated some of those funds
didn't have any money in it and believes we got rid of them last
year - Representative Therriault had a bill to do that. But this
would be one of those funds, like the marine highway fund where the
revenue goes in there and then they get to keep that for use, but
we still have to appropriate it. So it's not dedicated in the
extent that that's all it can be used for, it's just that that's
all we're suppose to allocate it for. It's a designated fund so it
doesn't need to have a constitutional amendment. The only way we
can have a dedicated fund is with a constitutional amendment.
Number 0204
REPRESENTATIVE DYSON reiterated the rents, lease money, and all
that stuff goes into this pot - designated fund, if responsible
organization doesn't spend it all at the end of the year, then we
have to have a three-quarter vote to keep those funds from going to
the constitutional budget reserve.
CHAIR JAMES replied that's correct.
REPRESENTATIVE DYSON said, "I think that falls short of what you
want to accomplish. Building maintenance particularly, but all
kinds of facility maintenance doesn't happen in annual cycles. And
indeed on an airplane - you're maybe going to do a major two-
thousand hours, so you can't spend the money, you have to do the
major on the engine all at one time. And so you have to accumulate
the funds - smart pilots put $10 an hour or so into a fund, so that
when they get there -- you're going to do a major foundation or
building repair on a building, you've got to accumulate a bunch of
funds ahead of time in some kind of rational way. So I see that
every year, the legislature having to do this three-quarter vote
over a lot of detailed things for a lot of buildings. And I see
that as a problem."
Number 0233
CHAIR JAMES stated it's just a little line in this whole group that
we're doing that currently. It's only one account, in a lot of
them, that we're doing that currently and we will have to as we owe
the Constitutional Budget Reserve. It's not the only thing we'll
have to do it for. She said she looks at it as an accounting
mechanism more than anything else because by segregating the money
and putting it in an account, it does allow for the tallying and
reviewing it more than it would if it was accounted for an account.
And if you just had it in an account, it would come off the bottom
line of the general funds that are left over instead of being
specified what's left over for. So it's really an accounting
mechanism to be able to identify those rents that are paid in this
account and to be used for those purposes.
UNIDENTIFIED SPEAKER said that was correct.
Number 0253
REPRESENTATIVE DYSON said, "What I hope doesn't happen - and maybe
you can tell me madam chair how your bill address this, is that,
toward the end of the budget cycle, you all are scurrying around
trying to find legitimate and semi-legitimate things to spend the
money on, (indisc.) it gets swept away. And the money doesn't get
used as efficiently as if it had -- we set it up so that it
encourages better stewardship."
MR. KREINHEDER replied, "The purpose of the fund is exactly the
opposite - to be able to keep money over from year to year. This
sweep is really a technicality that's, I guess I would say
overridden by the legislature, and as the chair mentioned, this is
one of I think dozens of such funds - marine highway funds and so
on. This would be no different, there's no need to spend the money
at the end of the year, the money is technically swept, but then
reappropriated to the fund. So the purpose is to keep that money
available for future years maintenance needs. Of course, a large
part of it would be spent for current year maintenance needs but
there would be no need to spend money at the end of the year."
Number 0279
CHAIR JAMES said, "If we didn't do this, if we didn't have this
fund, and the money is just transferred to DOT/PF to do the work,
then what your fears are - might happen. Because if you didn't
spend the money this year, it would be down in the total of other
general funds, which doesn't have any identification or any kind of
allocation. So it would just be dumped in and so, yes, there would
be an indication that you maybe should spend because if the year-
end goes by it will be gone. And it has to be appropriated so you
can only spend up to the appropriation anyway."
CHAIR JAMES stated "I think that the other thing that we miss in
this whole process - because there's an appropriation process, and
we appropriate for each budget, and the spending frenzy that we
talk about is when there was an appropriation and you get toward
the end of the year and you haven't spent all of your appropriation
then you rush out and spend it because once the year goes by you've
lost that appropriation then you'd have to get another one for it.
In this particular case you still would have to get an
appropriation for what you spend but there would be no reason to
lose that ability to spend it this year or next year because the
money is there, the appropriation should be (indisc.)."
Number 0303
MR. GERKEN said he believes, how it would work, there would be both
operating and capital appropriations from the fund. And capital
appropriations, he thinks for the items that Representative Dyson
was talking about - a new roof. The major items would need to be
planned, specifically appropriated by the legislature from the
fund, and finding a way to make that work. Although we always like
flexibility, he didn't think there would be the flexibility if the
Administration simply chose to make a major capital investment out
of the fund because there was money there. It would need to be
based on an appropriation.
CHAIR JAMES stressed, "We don't have any new money here, or we may
have new money here. But the whole process of charging rent has to
come out of the appropriation in the general fund the agency is
spending. When it comes to funding the agency budget, there will
be a line in there for rent as opposed to - if they owned the
building there wouldn't be. If they were leasing the building, the
lease would be appropriated somewhere. If, the way we're currently
doing it, there would not be a line for rent. So how that fits is
a legislative appropriation process, whether there's an addition to
the money that's being appropriated - from what's currently or not,
but it certainly would be reallocated. There really isn't any new
money because the money that you're paying the rent with is still
money that we have to appropriate."
Number 0329
REPRESENTATIVE ELTON asked if he understood that they will be
adding another line to agency budgets, and that line would be
designated for rents or leases, or would that be under an existing
line (indisc.).
CHAIR JAMES said she thinks it would be rent, but suggested they
ask the Administration how they plan to deal with that.
MR. KREINHEDER noted he would let Mr. Gerken speak to the leasing
side.
MR. KREINHEDER referred to the agencies in the State Office
Building. Currently the full cost of operating and maintaining
that building is born by the Department of Transportation. The
process we would use would be similar to the data processing
charge-back system that was put in place a few years ago. He
stated there would be a line added to the agency budgets,
Department of Natural Resources, Department of Revenue, and so on.
The Department of Revenue, for example, would have a rent line in
its budget, they wouldn't have to take that out of their existing
programs, that money that DOT/PF is now spending on the State
Office Building would be allocated among the various agency budgets
and they would have that money to pay rent.
Number 0348
MR. KREINHEDER said, "Down the road, rental rates would be
adjusted. Frankly there is a little bit of concern I think in the
departments with this approach because, clearly if we're not
spending enough to maintain the buildings today - there's no silver
bullet or magic answer here. If we need to spend more there will
be some pressure to increase rents. Our answer is basically that
this would be a gradual process over time."
MR. KREINHEDER referred to Chair James statements on no new money.
He indicated she was referring to something slightly different. He
said, "The one advantage that we are looking at with the rent, that
improved maintenance or new money that we could use to improve
maintenance, without raising rents or increasing the amount, is
that a rental rate structure would allow you to capture some
additional federal funds for example and non-G.F. sources. For
example, [the Division of ] Retirement and Benefits currently is
paying nothing for their space, but they're providing retirement
services for all the communities around the state and so on, and we
feel it is appropriate that that cost for that space be paid for by
the retirement system."
Number 0370
CHAIR JAMES stated what she meant by no new money, was that it's a
different way of budgeting. The money that would be allocated to
DOT/PF to do this would be put in other places. Chair James
remarked she doesn't necessarily agree, that if we haven't been
keeping up our buildings, and if it's assumed that that's because
they haven't had the money. If that's true, then we're going to
start keeping them up. Certainly we're going to have to have some
money to do that. She indicated that's the whole appropriation
issue, that's not what we're dealing with here, so it's quite
likely that there will be an additional appropriation for that.
CHAIR JAMES mentioned some offices in comparison to others are
plush. She believes, if they're paying by the square foot, they
will not take any more space than they need. When they argue for
their budget they might say, "Well, we could have less space
(indisc.) and so therefore, we don't have to pay so much in rent,
so we can have it for programs, and so forth." Chair James said
she thinks there is an incentive there by letting people know how
much their space costs are in their calculations of their programs
and so forth, and there will be an added benefit from that process.
Number 0393
REPRESENTATIVE DYSON made a motion to move HB 463 with individual
recommendations and attached zero fiscal notes. Hearing no
objections, HB 463 moved from the House State Affairs Standing
Committee.
HB 468 - DAMAGE AWARDS HUMAN RIGHTS COMMISSION
Number 409
CHAIR JAMES announced the next order of business is HB 468, "An Act
relating to damages awarded in complaints before the State
Commission for Human Rights," sponsored by the House Rules
Committee.
Number 0411
JAMES HORNADAY, Legislative Assistant to Representative Pete Kott,
Alaska State Legislature, came before the committee to present HB
468. He said you should have before you HB 468, a sponsor
statement, a fiscal note and a letter from Paula Haley, the
director for the State Commission for Human Rights. Mr. Hornaday
read the following statement:
"House Bill 468 amends AS 18.80.130(1) to the effect that if the
decision of the State Commission for Human Rights is delayed more
than 90 days after the complaint was filed, the commission may not
award back pay for wages that the complainant would have earned
after the 90th day after the complaint was filed.
"The State Commission for Human Rights investigates claims of
discrimination by employers, including cases alleging wrongful
discharge due to alleged discrimination. Some 5,000 calls are
received each year, with nine investigators and two supervisors
doing investigative work. Two hundred seventy-five cases are
presently on hold.
"We are advised that there is a major problem with delay.
Sometimes cases take over two years to come to a determination. If
the findings show probable cause, a reconciliation agreement is
presented to the employer which includes payment of back wages for
the entire time period the matter was under consideration. The
potential monetary impact can be staggering. Further, the claim is
still subject to review by other jurisdictions (local human rights
commissions, Equal Employment Opportunity Commission and so forth).
"This legislation provides incentive to the employee to find other
employment as well as encouragement to the commission to expedite
the process. We are advised that some 62 percent of cases do not
have substantial evidence to proceed. Quick and speedy decisions
are in the best interest of both the employee and employer."
Number 0439
REPRESENTATIVE ETHAN BERKOWITZ asked does he get to ask questions
of somebody now.
CHAIR JAMES replied let's hear from Mitch Gravo first.
Number 0432
MITCHELL GRAVO, Lobbyist, Alaska Hotel Motel Association, came
before the committee to provide information on HB 468. He noted
the Alaska Hotel Motel Association asked to have this bill brought
forward. He indicated some members are on teleconference and could
probably speak better to specific examples.
MR. GRAVO said the bill really tries to balance the interest of
three different parties, the commission which has to resolve these
issues, the complainant which brings the complaint before the
commission, and then the defendant or the employer that has to wait
for a decision by the commission. Mr. Gravo stated the association
thought a 90-day window is a reasonable time to reach or not reach
a decision and that if a decision isn't reached within 90 days, the
employer shouldn't be further penalized. The employee would get
back-wages for 90 days and it would be an inducement on the
commission's part to take action. He deferred to the folks on
teleconference that actually have been through this process for a
year-and-a-half or two years.
Number 0460
REPRESENTATIVE BERKOWITZ asked, in this provision, what happens if
the defendant causes the delay.
MR. GRAVO replied he didn't know how a defendant can cause a delay.
REPRESENTATIVE BERKOWITZ said for example you'll drag while the
investigation is going on, attempt to continue dates. He noted
that there are all kinds of ways.
MR. GRAVO said he thinks that would probably need to be addressed,
the examples that were brought to his attention were not as a
result of the defendant causing the delay. He added that he thinks
that's a good point and would need to be addressed.
Number 0471
REPRESENTATIVE BERKOWITZ mentioned that he fundamentally has a
concern with this in terms of the equities for the situation. In
an instance where a plaintiff has a legitimate complaint, the
plaintiff bears the burden of the inefficiencies of the system.
That doesn't seem like the most equitable resolution if we're
trying to generate an incentive so the Human Rights Commission can
go through its case load faster, he is not sure how Mr. Gravo can
explain to him philosophically why a deserving plaintiff bears the
burden for the failings of the system.
MR. GRAVO said he thinks he'll have to address that to the Human
Rights Commission because they're not making the decision in a
timely manner.
REPRESENTATIVE BERKOWITZ acknowledged that he understands that but
the proposition sets a time limit. He asked how the time limit is
fair to a deserving plaintiff.
Number 0484
REPRESENTATIVE JAMES agreed that dragging it out isn't to the
benefit of the plaintiff. She mentioned she has known people on
both sides of this issue and has also known people who have had a
valid claim. Chair James indicated the trauma that they've had to
go through for a long period, of not knowing whether they're on, is
terrible. So she thinks speeding up the process that certainly
everyone wins. She said, "The other thing is, is there's a cause
and effect. That having been doing my life work ... as a small
business accounting and tax preparation, payroll, all of those
issues, it seems to me like that, if we could speed up the process,
there would be less resistance from employers to have a better
ability to understand what's right and what's wrong."
REPRESENTATIVE JAMES said she doesn't believe that these employers
ever do anything purposely, but sometimes they are trapped because
they've done something they thought was okay and it turns out it
wasn't. If they could get those decisions quicker that would help
them - many times they have another one pending before that one is
settled because they don't know what they're doing, and they think
they're doing it right but they're not. So speeding up the process
will have a cause and effect to having fewer people be unfairly
discharged.
REPRESENTATIVE BERKOWITZ said, "I agree completely I just don't
care to (indisc. - laughter). Madam Chairman, I'm just not sure
this is the best mechanism."
Number 0506
REPRESENTATIVE ELTON said he believes they are kind of getting to
the nub of it and it seems to him that there are two ways of
resolving the situation on speeding things up. And one of the ways
is this way, which is a way that punishes a person who has made a
complaint that may be a legitimate complaint.
REPRESENTATIVE ELTON stipulated the other way is to put the
resources that Human Rights Commission needs in place. He
expressed that anybody who has dealt with the Human Rights
Commission - we're not questioning its mission, but anybody's
that's dealt with the Human Rights Commission knows that they don't
have the resources to do it. The delay isn't because of the Human
Rights Commission dragging their feet, and in many cases he said he
doesn't believe the delay is because somebody in industry, or that
owns a small business, is dragging their feet.
REPRESENTATIVE ELTON indicated the delay is because they have many
more complaints then they have the staff to deal with it. He
called attention to the fiscal note, he said he believes it
dramatically demonstrates the resources that they need. What
bothers him is that we're going to try to fix the situation in
which somebody that makes a complaint is going to be ultimately the
person that suffers the most, rather than put the resources in
place that they need to work in a timely manner. Representative
Elton pointed out that this isn't the only place that those
resources are short. For example the Office of the Ombudsman,
sometimes it takes well over a year to get something through the
system. They're burdened with the same kinds of procedural things
that the Human Rights Commission does. He said you have to give
probably 30 days for a person to respond to a request for
information, we don't want to put the kind of burden on a small
business in which they're told they have to respond in five days,
that just doesn't work. What bothers him about this approach, is
this is the punitive approach. He said he would be willing to
guess, if this bill makes it through the system, this fiscal note
won't be attached to it when it comes out the other end. And this
is what we need to solve the situation.
CHAIR JAMES added that because there are no deadlines now, she
doesn't believe there is an incentive to get things done. She
noted she's not questioning whether the 90 days is a good number or
not, she's suggesting there needs to be some kind of closure in
some length of time. Chair James said, "Given, we would pass
something like this, the Human Rights Commission, or whoever it is,
whoever was asking for a budget for them, would certainly have
better numbers to deal with, to request that then they do
currently. In fact is, there's probably no willingness to give
them any more money now because there's nothing driving it, and we
need to have a driver on here that would make them do that."
Number 0548
REPRESENTATIVE MARK HODGINS said he believes it's imperative that
we put a closure on this and put a time limit on it for the
plaintiff. He implied you can have things that are drug-out for
years for the plaintiff and that their life is topsy-turvy. He
said they need to understand that they're going to have a certain
amount of time, and then there is going to be a resolution.
REPRESENTATIVE HODGINS referred to the fiscal note. He said,
"Unless the Human Rights Commission is falling further, and
further, and further behind, they don't need 55 people. If they're
right now at a year-and-a-half, is there time for closure, and
they're constant with that, then somehow or another they've screwed
up in not getting the process going. If they are indeed falling
behind every day, to where it's now a year-and-a-half, next month
it's two years, and then further than that, then they do need more
people. But the fact is, is if they are sitting at a constant
delay, then they don't need more people, they need to clean up
their act. And I want to be very specific in talking with somebody
during the course of this bill that can answer some of those
questions for me to find out what the delay actually is and how
constant it is."
Number 0564
REPRESENTATIVE DYSON suggested they go slower and be more careful
because he is a little bit outraged with some the comments that
have been made. He informed the committee that he has served on
the Human Rights Commission for two-and-a-half years. He said,
"Their [Human Rights Commission's] caseload has gone up (indisc.)
of magnitude in the last seven or eight years and until recently,
got no more resources. The Human Rights Commission itself, the
commissioners continually push the staff to get the cases closed.
And I believe we're the second state in the nation to do the
radical thing that has a downside, is to do triage and not
investigate every case. And certainly some of the cases are
frivolous, some of them are spiteful, some of them are misapplied
and ignorant, and so on. But the very serious decision that folks
who file a discrimination complaint, that some of them weren't
going to be done. And for the first time in seven or eight years
they're actually making progress on reducing the backlog. And in
the two-and-a-half years I served there, I didn't see
mismanagement, people goofing off you know, I saw folks absolutely
overwhelmed with the workload and trying to make it work."
REPRESENTATIVE DYSON continued. He said "I also saw the tragedies
on both ends. The small business who had a disgruntled employee
who filed a complaint that then put the business owner in the grips
of a monster that was going to have a hold of him and jerking him
around, for whatever it took to get through the process. And I saw
the ones where people were really badly treated, and it takes a
long time to sort them out. And you look at the extremes and you
see real problems with doing it, you know, with how the system
works. So there is (indisc.), people, the commissioners really
pushing to get things resolved as quickly as possible. Steps have
been made and I think to just keep saying you've got to do better
without providing a means to do so, there's got to be real limits
to that. So I don't think..."
Number 0601
CHAIR JAMES stated Representative Dyson made a really good point,
and it's one of the same points she has made on every single budget
for the state and disagrees with just cutting the bottom line of
the budget. Chair James said, "But what I do agree that ought to
be done is take a look, and what are we doing we shouldn't be
doing." She indicated there are quicker and more efficient ways of
doing things. And just because it's taking this long, it doesn't
mean that there aren't ways to simplify it. She noted, as a
commissioner, that wasn't Representative Dyson's chore, that would
be the staff.
CHAIR JAMES said one of the things we get ourselves into is, "we've
always done it this way." An example is the Ombudsman's Office.
And that's what she's [the ombudsman] has set up now - with greatly
reduced funds, she has set up this triage, where they have this
sieving process. The ombudsman said some 5,000 calls are received
each year with nine investigators. Chair James said it's the same
thing we put the Board of Fisheries and the Board of Game through,
they have to review every single suggestion that comes to them.
And there has to be a sieving process because we can't afford as a
state to pay for all these things, we have to have a sorting
system.
CHAIR JAMES indicated she is not really comfortable with the 90
days, but will wait and hear what the testimony is. She said, "But
I think we need a number. And I think then we also need to ask
them to figure out how they can do it faster by sorting and taking
those who are suspicious of being false claims and get rid of them
quickly instead of maybe putting them off longer. ... I have done
efficiency work in offices and I have been amazed when you get
through and there's two less people in the office because there's
so many things you don't need to do. I think it's really important
that we look at that."
Number 0624
REPRESENTATIVE BERKOWITZ said first of all we're proceeding on the
assumption that they're not screening that way. He said he thinks
it would be fair to hear from the Human Rights Commission to see
what their screening process is. Because if it turns out that they
are indeed screening, then they're working at what we would
consider a fully efficient mode, then this criticism is a little
premature.
REPRESENTATIVE BERKOWITZ said the second point he wants to make is
the alternative to taking causes of action in front of the Human
Rights Commission is to take it to court. He said, "You want to
talk about delays, I can assure you that the court delays will be
extreme and the cost will be much higher. And that's particularly
so if you take a civil rights action to (indisc. - coughing) court
and win a judgement there. So this is a pretty cost-effective
alternative at this point."
CHAIR JAMES announced she would like to hear from the people on
teleconference before they went any further.
MR. GRAVO indicated he has one closing comment. He said, "What I'm
hearing is that if you put a number in the bill it will force a
very focused discussion of the budget issue at the next committee.
This will have a fiscal note now, so it will have to go to House
Finance and there will be a real thorough discussion of all of the
equities including the budget issue and I'm sure you'll hear about
that from the commissioner. But if this bill does anything, it
will do that."
CHAIR JAMES thanked Mr. Gravo for reminding us again that it's the
responsibility of the State Affairs Committee to sort out pieces of
legislation that have either a good effect or bad effect on the
affairs of the state. She concluded this is the proper place to
hear this first and it does go to finance who will deal with the
fiscal note of it. Chair James indicated she is not real convinced
that 90 days is effective, and we might want to change that because
we do have some responsibility in that area.
Number 0649
PAULA HALEY, Executive Director, Alaska Human Rights Commission,
spoke in opposition to HB 468 via teleconference. She mentioned
one of their volunteer commissioners, Chairperson Martha Gore, is
also present. Ms. Haley indicated her testimony will perhaps help
answer some of the questions that have already been posed.
MS. HALEY noted the Human Rights Commission fully understands the
frustration to parties created by current backlog and the resulting
delays in investigation. Their case load has nearly tripled in the
past 15 years and they've seen their inventory rise even when they
have completed more cases each year than the year before. To more
promptly resolve complaints of discrimination, the agency has
revised procedures, amended its regulations to reduce the time for
filing complaints, and with our help amended its statute last year
to allow for cost savings. In addition, resources provided to the
commission, with the support of the governor and legislature last
year, allowed the agency to reduce its backlog by 24 percent.
MS. HALEY said, "While the commission appreciates that employers
want prompt resolution of complaints, it believes that HB 468 is
unnecessary. But more importantly, this bill will likely have the
opposite affect and increase costs and workloads for employers and
I'd like to tell you why. First of all, the commission is not
aware of any instance where delay in processing a claim has
resulted in an increase in the amount of damages. This is because
employment discrimination law does not allow for unlimited damages
to accrue while the clock is ticking. The law requires every
person with a pending complaint must find alternative or try to
find alternative employment, or other means of income to offset the
potential damages. This legal principal can be seen in the amount
of back-pay awards that are arrived at through the decisions or
settlements of employment cases before the agency."
Number 0690
MS. HALEY pointed out that over the last ten years the average
amount of back pay provided by private employers, in cases where
the commission found substantial evidence of discrimination, is
$4,713. She said the commission is aware of the particular
concerns expressed by some employers who would like a 90-day
prejudgement cap on back-pay awards. Notably, in none of those
examples raised by the employers were damages increased because of
the time it took to process a complaint. In fact, in only one of
those cases was any back-pay provided. In that case, a 61-year-old
Alaska Native woman brought an age and race discrimination
complaint against the former managers of Chena Hot Springs Resort,
the staff found substantial evidence of discrimination. In this
instance, the fired employee secured another higher paying job
three weeks after she was terminated. Chena Hot Springs Resort
paid only $2,400 in back-pay in a pre-hearing settlement.
MS. HALEY stated, "While the commission does not see the need for
a 90-day prejudgement cap, it does see disadvantages. This bill
may expose employers to double-jeopardy and more serious
consequences than they now face. The Equal Employment Opportunity
Commission, our federal counterpart, has reviewed HB 468 stating
that a 90-day damage cap is not compatible with federal law. If
this bill passes, EEOC will have to pursue additional remedies
available to it in every case where we find substantial evidence of
discrimination. These remedies, of the federal agency include full
back pay as well as compensatory and punitive damages. So where
now, when cases are brought to the Alaska Human Rights Commission,
employers may be only liable for back-pay. In the future, if the
bill passes, they could be subjected to compensatory and punitive
damages in amounts far greater than our average back-pay award of
$4,713."
MS. HALEY said, additionally, the bill could subject employers to
the added burdens of duel investigation. Presently under a
contract with the federal agency, the commission investigates the
vast majority of discrimination complaints filed by Alaskans.
Because the 90-day cap is not compatible with federal law, EEOC may
terminate our contract. In that case, employers would have to face
separate investigations by both agencies. Also, when people learn
that damages have been capped at 90 days, they may choose to go to
court, federal or state, where damages could be greatly increased.
MS. HALEY explained, "We at the commission strive to make our
procedures as informal as possible, and employers can now respond
to charges of discrimination without hiring lawyers, and many many
do. However, if they must defend complaints in courts of law,
employers will logically feel compelled to secure a legal
representation."
Number 0703
MS. HALEY said, "Finally, I think you may have the fiscal note, we
just sent it down yesterday. To me the legislative mandate and to
safeguard the rights of Alaskans with claim of discrimination, if
this bill passes we would seek to process all our cases within 90
days. Accomplishing this within 90 days will require an enormous
increase to the agency's budget. In the first year we would need
to eliminate our backlog in order to process the new cases coming
in within the time frame. This would require almost five times our
current budget and then once we got rid of the backlog and could
face just the new cases coming in we would still need a total of
approximately 24 additional staffs to process in the time
contemplated by this particular piece of legislation."
MS. HALEY stated, for these reasons, the commissioners and I ask
that you not support HB 468.
Number 0714
REPRESENTATIVE BERKOWITZ asked approximately what percentage of
your cases are employment discriminations.
MS. HALEY replied the vast majority of their cases are employment
discrimination, but did not have a percentage number. She said,
"But I would tell you that most of our Alaskans do view the Human
Rights Commission as the agency to assist in that area. Out of 471
[cases, 415 were employment discrimination]..."
TAPE 98-38, SIDE B
Number 0001
MS. HALEY continued. "...investigator because of the rise in
filings. At the same time we had a reduction in staff. We went
from 26 staffs to 15 - at that same time our complaint load
tripled." She said they ended up putting cases on hold and they
stay on hold anywhere from nine months to a year. That's the big
problem. Once they get to an investigator, depending on the nature
of the case, they could be completed in two months, nine months or
a year - if there's very complicated facts and many many witnesses,
and volumes of evidence, so it varies. Ms. Haley reported the
national average for processing cases is over 440 days, that's
national - all of our civil rights enforcement agencies in the
country.
Number 0017
REPRESENTATIVE BERKOWITZ asked what is the screening process.
MS. HALEY replied, "Well you might get the sense from the numbers
alone. If we get 5,000 calls a year, and that's 5,000 people who
have problems, they think we can help them with, we accept anywhere
between 400 and 500 complaints. So many of those people, first of
all are clearly in the wrong place, we try to hook them up with the
right people. But some of them we, by virtue of explaining what
the obligation is under the statute, are dissuaded from filing
because of our process of education, that they may not have enough
to make a claim, they may not be within the jurisdiction of the
agency, etcetera. So many of our callers never become
complainants."
CHAIR JAMES asked how many, of the ones that you do, are brought to
successful conclusion and how many are denied.
MS. HALEY responded, "Well, in last year's statistics, and they're
probably a little bit off, and I can explain to you why from prior
years, but in last years statistics 62 percent we found no
substantial evidence of discrimination, so around 60 percent of the
cases we found that there was not enough evidence to go forward to
a hearing. Now I would say, Madam Chairman and committee members,
that may in fact be a problem in the employment situation, but it
was not discriminatory. There may have been some unfairness, some
miscommunication, some misunderstanding, but it was not
discrimination. So there may have been good reason for the
employee to bring the complaint, but once we listened to both sides
and talked to witnesses and gathered evidence we found that indeed
the promoted individual was more qualified or other people were
also penalized for certain transgressions in the workplace."
Number 0061
CHAIR JAMES asked you don't do this until you actually find them,
so if they're down on the list somewhere, or up on the list, you
spend time on them as they come in, is that how that works.
MS. HALEY replied because of the delays, the Human Rights
Commission tries to resolve them in reverse chronological order,
with some exceptions. If they see a complaint that was
jurisdictional, but they believed there is really not good reason,
they had to take it because it's jurisdictional, they will assign
that sooner. She said they have some individuals who may have
disabilities where they're very ill. We may assign them sooner.
But for the most part, they do handle them in reverse chronological
order. The problem they have, is they can't preinvestigate, but
they do try to get as much information up-front so that if a case
looks like it is probably not going anywhere a supervisor might be
able to handle it out of order in its backlog holding area.
Number 0081
CHAIR JAMES said if 60 percent of them turn out to be
nondiscriminatory and they stayed in the process, and were handled
in the reverse chronological order, it's very likely if there was
a way to sort them out that the process for the valid cases would
go quicker.
MS. HALEY said she could appreciate that point of view. She said
she believes, that what is sometimes problematic, is that even in
some of these cases where there's no substantial evidence of
discrimination, it took a lot of information hunting and witness
testimony and reviewing of records to determine that that indeed
was the case. Not all of the no-substantial evidence cases are
necessarily quick cases.
CHAIR JAMES indicated she can understand that too, because she
understands that process.
Number 0099
REPRESENTATIVE HODGINS referred to Ms. Haley's comments on the
length of backlog. He reiterated that they hold things for nine
months to a year, the national average is 440 days, and asked do
you think you're getting close to the national average.
MS. HALEY replied, "We may be hitting close, or a little bit over
the national average. I have to say that we have seen a huge
increase in our complaints at the same time we saw a decrease in
staff. And what happens nationally, is most of the agencies saw a
huge increase without the decrease in staff. And I can tell you a
lot of that was the result of the Americans With Disabilities Act
and awareness in the area of that particular issue."
REPRESENTATIVE HODGINS said well, working those numbers, it looks
like maybe 90 days would be fairly close, 90 days to 120 days would
probably fit in your process if you didn't have the backlog. He
said, "And I say that because if you hold something for nine months
to a year, and the national average is 440 days, and you're
actually doing that, or did I misunderstand, and after the year,
then it's 440 days for you."
MS. HALEY replied that he did not misunderstand, what she is not
understanding, in terms of his question, is that he thought the 90
or 120 days would work. She said, "Our cases aren't even assigned
for close to a year. And what I must say so I don't mislead the
committee members is the average of 440 days that I had given you,
which is from the EEOC database, is for cases to be completed
through investigation, it doesn't include the hearing process which
I think this bill contemplates."
REPRESENTATIVE HODGINS asked how much time does the hearing process
take.
Number 0138
MS. HALEY replied they currently have a little bit over 40 cases in
their hearing unit and they're developing, unfortunately, a backlog
in that unit as well. The Human Rights Commission has right now,
cases scheduled in 1999 to go to hearing. Now, that scheduling is
not always simply because the commission can't get the cases to
hearing, the respondents sometimes can't get to hearing as quickly
as they might like because of their schedule, or the schedules of
their attorneys if they choose to hire one. So many times the
delays of the hearing's stage are due to the scheduling problems of
all the parties not simply the commission's workload.
REPRESENTATIVE HODGINS asked if you did not have the backlog, would
you have to hold the cases nine months to a year before you
assigned them.
MS. HALEY replied no, in fact the Human Rights Commission's backlog
is a new problem. She indicated, when she first came to the agency
10 years-ago, her mission was to resolve cases more quickly and she
accomplished that. But that was a short-lived victory because
cases went up so quickly in the "90s." Ms. Haley said they
actually got most of their cases, the vast majority of them, to
complete resolution within approximately a year. But that was at
a time when they had only 260 filings per year and the filings were
driven up by increase in population, greater awareness, and other
things. And as a result, with their staff static and down from 26
to 15, they just lost the ability to keep up.
REPRESENTATIVE HODGINS asked if they had no backlog, and somebody
brought in a case today, you're saying that it's going to be 440
days on average before it's resolved.
MS. HALEY said, "If you were talking about getting the case all the
way through hearing, I think that it might be a reasonable
assumption. I think that most of the cases - I dont' know of any
fair employment practice agencies across the country that are state
agencies with the kind of inventory we have that are doing things
faster than a year, I can say that."
REPRESENTATIVE HODGINS asked so you think 440 days is a valid
amount for somebody that comes in and puts in a case today, 440
days from today it should be resolved, is that correct.
Number 0182
MS. HALEY responded, "Well, it's hard for me to say, I think
everything in a perfect world would be resolved in a year or less.
That's what I truly believe - if you had the adequate resources."
REPRESENTATIVE HODGINS said it looks like they kick out about 90
percent of potential plaintiffs in their screening. He asked how
much time do you spend in the screening to kick out 90 percent
versus the hearing situations and preparing cases, is that a big
portion of your time.
MS. HALEY replied it can take a fair amount of time to screen
because usually the people who call their agency are not
sophisticated, they understand that they experienced something that
they believe is bad, and the commission has to try to ferret out,
whether the bad thing meets the four corners of our statute. She
said they try to get all those calls through in 15 to 20 minutes -
maximum time spent on the call, some of them, of course, are much
shorter, but it does take a fair amount of time. If an
investigator is assigned to what they call "inquiry week," it
basically takes all of his or her time during that week, just given
the volume of calls, it's better than 100 calls a week.
REPRESENTATIVE HODGINS noted the commission can actually screen
somebody in 15 minutes and then they probably would have different
levels that they would kick them into different interview
situations if they fall within certain parameters of a screener's
judgement.
Number 0211
MS. HALEY said, "Let me give you a thumbnail sketch. If the person
has basically articulated a claim under AS 18.80, we actually send
them, or they can walk in and get it if they're in the Anchorage
area, a questionnaire. And we put, at that point, the burden on
them to write down what their claim is and why they feel it's
appropriate before the agency. And we added that step because we
found, when the potential complainant had no involvement early on,
some times they would just have us do the drafting of a complaint
and then they would vanish. So this puts a little bit of a burden
on the complainant or potential complainant, up-front. Once that
comes in, we turn that with their assistance usually in a
telephonic interview into a draft complaint which is what the
statute contemplates, we draft the complaint. We make it clear to
them we're not their advocates, nor do we represent the potential
respondent's interests. And if we didn't have the backlog that
complaint would be immediately assigned for investigation. Because
we have the backlog that complaint now goes into a hold bin."
REPRESENTATIVE HODGINS asked Ms. Haley if she was experiencing a
longer and longer delay in the resolution of these cases on an
average.
Number 0232
MS. HALEY replied yes, the commission had more and more time, but
because of the assistance from the legislature last year with
additional resources they're seeing that trend turn. She indicated
it's turning more slowly than they would like it, but they did a
number of things in the past two years, they changed their
regulation to reduce the time for filing, they streamlined their
internal procedures, they amended the statute to save them money at
the hearing level - and they could use that money toward other
things. They also were able to get two additional investigators.
Last year, if the committee looked at them, they only had seven
investigators and two supervisors.
REPRESENTATIVE HODGINS asked, what you're saying then is that with
seven additional people, you've actually turned the tide on the
backlog, where you don't have quite as long a backlog now.
MS. HALEY replied yes. The Human Rights Commission has reduced its
backlog by 24 percent. They have seen in nine months the positive
impact of additional resources and their backlog is closer to a
nine-months backlog than a year-long backlog.
REPRESENTATIVE HODGINS referred to the fiscal note. He said, "You
initially say 55 positions would be added to the agency to clear
its backlog of cases. Then I assume you would be looking at seven
or less for continuing employment to keep those down, is that
correct."
Number 0258
MS. HALEY replied, "Representative Hodgins, that's not correct
because I was doing the fiscal note based on the bill itself which
doesn't simply say we have to process promptly, but we have to
process in 90 days. And to do it in 90 days - which means an
investigation, a conciliation where we try to settle if we found
that there was in fact substantial evidence of discrimination,
discovery, setting a hearing, holding a hearing, having a decision,
in 90 days would be incredibly labor intensive. And that's why you
see for the long term 24 additional staff."
REPRESENTATIVE HODGINS asked if she would assume then that maybe a
figure like 100 days or 120 days would be more appropriate.
MS. HALEY said she thinks there would be very little difference to
the fiscal note if it was 90 versus 100 or 120 days.
REPRESENTATIVE HODGINS asked if there was a discrimination season
where you have more people during certain times of the year that
come in with more complaints such as in the fall when there might
be layoffs after summer.
Number 0276
MS. HALEY replied no, the commission actually hasn't seen a season,
but if you note for example, new companies coming into town, they
will see more complaints then for failure to hire. If you note
that a large company does a major layoff, they will see more
complaints at that time. So, if you see something in the news,
that reflects some major employment activity, they will usually see
the impact of that. But they don't see it, for example at the end
of seasonal employment.
REPRESENTATIVE HODGINS asked what changes would she recommend to
the Human Rights Commission if you have to sit on a 90-day -- if
this bill goes through the way it does. What would be the massive
changes you'd have to make to comply with this.
MS. HALEY said, "I think that if I had to tell the current staff
that we were going to process within 90 days, we would need to -
basically a five times the staff in a short term, and three times
the staff in the long term. I don't know how we could simply tweak
the process (indisc. - teleconference interference) and make small
changes to the statute and accomplish that end."
Number 0301
CHAIR JAMES asked Ms. Haley if she had any calculations, or
averages of the time it takes to settle a claim from the time that
you start the investigation. She said it seems like the commission
does a little bit of process, and then you put them on a list.
From the time that they're picked up off the list and to
conclusion, do you have any average time limit - that length of
time that takes.
MS. HALEY stated she doesn't have an average, she could certainly
provide it to the committee members from the day it's assigned.
One of the reasons she doesn't carry that figure around in her head
is that it is so varied, depending on the case, as she said some of
them may be a couple of months. She said, "We had one instance
where a case went on for better than two years in investigation
because the respondent would not provide the documentation and
would not respond to our lawful subpoena, and that kind of delay
occurs with some regularity."
CHAIR JAMES announced we've talked about that issue too, if we do
anything with this bill, we probably need to address that.
Number 0318
REPRESENTATIVE ELTON said if you have a caseload in the
neighborhood of 500, but you get 5,000 calls, you're taking like
one in ten cases. He indicated he was curious, if you have any
sense on how many people don't pursue a claim with the commission
simply because of the time line, simply because it's nine months
before you even assign a case and then it takes longer after that.
He asked is that a threshold that some people just don't want to
bother with.
MS. HALEY said she thinks that the commission believes anecdotally
that some people in fact are choosing not to file with them now due
to the delay. She indicated they don't have a significantly
staggering statistical trend to say that in fact is true. But if
the State Affairs Committee looked at their annual report we would
see that their filings are in slight decline now, and it's too
early for that decline to be due to their regulatory change to 180
days. Ms. Haley said, "So our guess is, that's given the
population of Alaska's continuing to rise, and that we don't
believe as much as we'd like that discrimination or employment
concerns have gone away, that we're probably seeing that impact
because neither side wants to wait. The commission staff doesn't
want to delay it. It makes it harder to do our job."
Number 0339
REPRESENTATIVE ELTON asked Ms. Haley how much time do you or
members of your staff spend in training with employers so that it's
not just an agency that is resolving conflicts, but is an agency
that also tries to prevent conflicts.
MS. HALEY said, "I think that that's an area that we see as we deal
with sort of the emergency room of many many more complaints than
in the past that does slip away from us. I'm the primary trainer,
and as division director, I don't have the time to be away from the
shop as often as people request my presence. I must say though
that when we go out and educational seminars, I think they're
really positive and people do learn what their rights and
responsibilities are. But I also have to tell you that we
generally see complaint filings go up if I've been in a community
and I've been talking to people about their rights and
responsibilities. While I am training managers and supervisors
about the right thing, I'm also making employees aware of rights
they might not have been aware of up until that point and we tend
to see complaint filings go up in that area."
Number 0361
REPRESENTATIVE DYSON said, "Paula, Representative Hodgins was kind
of relentlessly I think pursuing a line of logic that I think kind
of paints you into a trap, logically, and I think you kind of spoke
to me about this a little bit on the phone. But indeed if, with
your present whatever it is seven or nine investigators, you're
gaining on the backlog, I don't think that you have made it clearer
why you would need 24 investigators if the backlog was eliminated.
I want to give you an opportunity to make that apparent discrepancy
a little clearer or be more logical."
MS. HALEY stressed the reason that there would be a difference is
that this doesn't - were currently in a statute that says resolve
promptly and we recognize we're not doing that. This bill says
resolve from start to finish, from complaints to decision in 90
days. In order to do that, the commission couldn't simply look at
how long it would take them to get rid of the backlog, they had to
look at how many cases an investigator could handle, if an
investigator had to investigate the case. The commission figured
it would have to be done in 45 days maximum, or 40 days because, if
they find substantial evidence of discrimination, it then has to go
to the hearing unit, it has to be set for hearing, there has to be
an opportunity for discovery, and aside from the due process
concerns they would have employers that might not want to have to
respond to their queries in five days or ten days. But aside from
that, the Human Rights Commission figured they would have to
dramatically reduce the caseload of their current staff so they
could be on that particular case and moving it all of the time.
That's why you see more staff attached to this particular bill.
REPRESENTATIVE DYSON said he believes Ms. Haley is still not
addressing the "logic problem." We, who are not involved in your
work, perhaps ignorantly think that each investigative case is
going to take the same amount of time to do the investigation,
process the paper, appear at the hearings and so on regardless of
what the time frame is. A case is going to take a certain amount
of man-hours regardless of the deadlines on it. He indicated, from
his perspective, that he has not yet heard her explain why. It
must be that the number of hours each case would take would
dramatically expand - if with the time deadline. He asked if he
was making himself clear.
Number 0400
MS. HALEY said she thinks she understands, but if she doesn't
provide the information that clarifies it please ask again. She
emphasized the difference is, under the Human Rights Commission's
current system, they ask employers for information at the front end
and they may or may not give it, it's permissive. Then as they go
along and focus in on complainant witnesses, they also obtain
information, they talk to respondent witnesses, they may put out a
request for information and that would be a 30-day turnaround.
Those procedures, as they know them, would have to go out the
window. Because with 90 days you can't give people 30 days to
reply, then review it, and maybe you have to ask them something
else, and give them another ten days. You wouldn't have that, you
would have to be on the phone to them all of the time, you would
have to be following them, explaining why you need it quickly. You
wouldn't be able to wait a week to call the second witness and work
on another case, you'd have to call the second witness the next day
or the next hour. So that would be the difference.
MS. HALEY pointed out each investigator now has 40 cases, in fact
they're closer to 50, and that drops back because they can't manage
more than 50. If you had to process 40 cases in 90 days you just
couldn't do it. You couldn't move 40 cases in 90 days. Ms. Haley
said, "So they would probably be only carrying a handful of cases,
definitely less than 10. I think it would probably be like 3 or 4,
or 5 - in order to move those 4 or 5 cases in 90 days. Otherwise
we would in effect continue with the concept of a damage cap and
complainants - if we took too long would suffer had there been
discrimination."
Number 0432
REPRESENTATIVE DYSON said, "What I just heard you say was that
because of the tighter time-frame, you'd have to be bugging people
more often to get the information going. And are you saying then
it's going to take three times as much staff because of the
increased intensity of the bugging or nagging the folks to get
their paperwork in."
MS. HALEY replied in part she is saying that. She further
explained, if you have a 90-day time-frame, you basically have to
have that case with you at all times. You can't put the case down,
you have to be moving it all the time, you can't put it aside and
address something else, you can't put it aside and draft up a
determination in another case. You have to work it, you just don't
get a chance to exhale, you have to work them constantly.
REPRESENTATIVE DYSON affirmed the commission loses a great deal of
efficiency because they can't fill out their work day with other
work because they have to stay right on top of it in order to meet
the time frames.
Number 0450
CHAIR JAMES said, "One of the things that - just kind of building
on a question that I asked you, it isn't necessarily how much - you
indicated didn't have any kind of an average length of time from
the day that they're assigned. But it seems to me like, that what
I've been hearing you testify now about the procedure that you have
to go through the witness issue, all of those kinds of things, I
could visualize what it is that you're doing. And it seems
unreasonable to me that you wouldn't be able to provide, and maybe
you said you would, an average." Chair James asked Ms. Haley
what's the shortest time as an example that she's ever been able to
solve a problem, what's the longest time, or what is the average
time that it takes? She said, "Because it seems to me like, to be
able to satisfy the requirement that is being requested here that
whether we pass this bill or not there needs to be an answer when
there's a public out there that is being damaged in some way, shape
or form. And so we need to have those kinds of numbers to know
what's reasonable." She indicated she hasn't heard that yet
because of the backlog and because of the extra amount of cases
that people are working on together.
CHAIR JAMES referred to her private accounting business as an
example. She said, "And I know myself, from my work, is that if
I'm working on one account, and I don't do anything else but that
account, I can get it done in a fairly short time because to
continue to keep my mind on the account makes me more efficient.
Every time I lay that account down and go to something else, when
I come back to that one I have to refresh my mind all over again
and I have to figure out now let's see, where did I leave off, and
what did I do and where am I. And so, I know that there's a
greater efficiency from taking something from the start to the
finish. And I'm not advocating this, that's the way you need to do
things, because I know that there are times when you can't get
people on the phone and you can't get the information, and you're
waiting for something, you need to go to something else. But, it
seems to me like you could give us some numbers like what is a
reasonable time to expect that once a claim is filed and it goes to
be assigned, what is a normal length of time to anticipate to
getting a response."
Number 0483
MS. HALEY said she would be happy to provide the committee with
their average, she can give it both from beginning to end and will
also calculate it from assignment to end. She stated, "I will also
though say with the caveat that the average time has gone up
enormously because of the increase in the workload. But I think
you are right, in fact we talk to the investigators all the time
about this as a training tool. If you put a case down, for a very
long time, and you go back to it, you do have to refresh your
memory. So there is some value in a lower caseload per
investigator and we recognize that and would like to work to that
end. And so we have that in mind, but if you look at the 90 days,
I think Madam Chairman, you mentioned something else that's key, if
I'm asking someone to provide me with comparative personnel files,
I don't think it's going to be fair to ask that 'mom and pop'
employer to do that in 5 days. And these constraints would require
me to really have staff put the pressure on the employer to turn
things around immediately. They wouldn't be able to have their
normal 30 days to provide information, and that is also a concern
of mine in terms of its impact on business."
Number 0503
FRANK ROSE, Alaska Lodging Management, President, testified on HB
468 via teleconference. He said, after listening to the
discussion, he indicated he might be misunderstanding what the
intent of this bill happens to be. He indicated he doesn't believe
that there's an intent here, with what is being proposed, to get
around or not go through proper due process to resolve complaints.
He also said he doesn't believe that there's a limitation on the
time-frame that the due process should take relative to resolving
the complaint. Mr. Rose said he believes what the bill is being
presented for is to provide a limitation on the liability that an
employer might incur relative to back-wages. Due process can
continue to go forward.
MR. ROSE said some of the comments that he has heard today provide
for, or have indicated that the employee would be unduly penalized
because of the 90-day requirement. He stated, "I would say that
both the employee and employer have great potential to be penalized
because of the longevity of some of these cases that happen to
arise or come up, or the liability associated with the back-wages.
From an employer's standpoint, I understand that the employee
certainly has a right to go out and search for other employment,
and should they find other employment then the cumulation of back-
wages would stop. But there is no guarantee. And I can tell you
from a small businessman's perspective, the fact that a case could
go on for two years, and if the employee does not get a job or
(indisc.) of that even a $6.00 an hour employee could accumulate
back-wages of $24,000 - $25,000 and that is without consideration
of overtime and perhaps other issues or legal costs. By far the
employer is going to look toward settlement of this thing
regardless if they're at fault or not. I assume that most
employers are going to think they're not at fault, but I can tell
you that specific case that I was involved in, which is the one
that Ms. Haley had indicated, I was quite sure I wasn't at fault,
but there was no way that I could sit back and potentially incur
the huge liabilities, rather it would be in my benefit to settle
the case even though I felt strongly that I was in the right."
MR. ROSE stated the 90-day requirement, or the 90-days liability
limitation seems to be in line with what Ms. Haley indicates in
that the average award has been between $3,000 and $4,000 as far as
back-wages are concerned. He said he thinks that's what she said.
That is a rate of $6.00 to $7.00 an hour, it would prove to be
somewhere on the order of 3 months or 90 days back-wages or so. So
that seems to be in line. Mr. Rose implied that 90 days is ample
time for an employee, who has lost their job for whatever reason,
to find another job and also provide incentive for that employee to
look for another job. If it takes 465 days to process a claim, and
all the resources are available, then perhaps that should be looked
at as far as the procedure is concerned. It seems like an awful
long time to come to a conclusion on a particular case.
Number 0553
REPRESENTATIVE BERKOWITZ said, "Just sort of looking at this
roughly, it seems to me there's three types of plaintiffs. There's
those people, who perhaps have insufficient evidence to make their
case, that have something that they can perceive as legitimate.
There's those people who have legitimate complaints, and there's
sort of the out and out extortion effort. And on the other side of
the ledger you can have defendants who are innocent and those who
are guilty."
REPRESENTATIVE BERKOWITZ pointed out he has a concern with the 90-
day limit on back-pay. He said it's not for those people who are
trying to do extortion, but it's for those people who have
legitimate complaints and they might be going against someone who's
culpable. He said, "My experience has been culpable defendants
tend to drag out the process much as possible. They'll 'heel-drag'
when it comes time to providing discovery. They'll be unavailable.
We heard testimony here that on occasion they don't comply with
subpoenas. There's an incentive built in to stay out there longer
than 90 days because that's the only cap you've got. And I
appreciate that you're very scrupulous in what you do. What I'd
ask you, if there was a less scrupulous employee who was culpable,
can't you see the possibility for abuse with a 90-day scheme."
Number 0568
MR. ROSE said his comment to that would be that, if deadlines are
not met, relative to providing certain discovery materials or other
information, he certainly feels that end employer should be held
responsible for that. And perhaps there, again as we've heard
today from Representative James, should be an addition or amendment
to this proposed bill that would allow for that. He said, "What I
am referring to is a situation where all information has been
provided that has been requested by the Human Rights Commission,
that information is in hand, and then there's still another two-
years wait before we come to any conclusion on what the outcome of
that case may be." He indicated that's where his concern lies.
REPRESENTATIVE BERKOWITZ said, "And I agree wholeheartedly with
that concern. I grew up in a small business so I understand how
hamstrung you can get by even seemingly small issues of $10,000 or
$20,000."
Number 0580
CHAIR JAMES said, "If there was this time limit on and we heard
testimony from the Human Rights Commission that many people do find
another job and so therefore the amount, if they are to win their
case is less, it would appear to me that those people who - that
the Human Rights Commission might hurry up faster on those people
that didn't have a job. And those people that did have a job,
maybe there's no rush on them. There might be a different way of
evaluating who's first on this issue. I don't necessarily know
that the 90 days is a good number, but having a limit to me is
interesting."
CHAIR JAMES pointed out that she has experienced having someone
file against her in the Human Rights Commission and she ended up
home free, however, it was pretty shaky. And the reason wasn't
because of what she or her staff did, it's what they didn't do.
She said, "It was like a bookkeeping problem, and many cases are
made on what you don't have in your files - not on what you did.
And that's a part of the human rights law that is terribly
distressing to me because, as an accountant for small business, I
found I had some small business people who literally had to lock
their door because they had made a good decision in letting someone
go. And yet they didn't have all of the documents in their
personnel file and those other things that they needed ... and they
were just a small 'mom and pop' business. And that's, I think very
very sad because this nation was build on 'mom and pops' in their
backyard and in their garage. And I think we have made the laws so
severe that those are some of the people who are also being
penalized."
Number 0609
KAREN ROGINA, Executive Director, Alaska Hotel and Motel
Association, testified on HB 468 via teleconference. She said they
are the number one employer of entry-level workers in the State of
Alaska, and due to the transient nature of entry-level workers and
the seasonality of their industry, issues of hiring and termination
are of great interest to their membership. Ms. Rogina stated they
are in support of the concept of having reasonable time limits on
the time in which these cases can be resolved. She said they see
it as a fairness issue to the employee and to the employer where
timely resolution allows everyone to get on with things and take
responsibility for their future. In the case of an employee, it
provides more incentive to have them seek other employment instead
of having drag out, and it places responsibility on the employer to
provide the information and to avoid the situation in the first
place.
MS. ROGINA indicated their association receives a lot of questions
from their members statewide, and the American Hotel and Motel
Association spends a lot of time training employers on how to avoid
these kinds of things. She said, "And so we see that this kind of
bill would put a little more teeth into the whole resource issue
and put it where it belongs in terms of educating employers on how
to avoid these claims in the first place, and also perhaps
additional investigators so that timely resolution can occur."
CHAIR JAMES said she was glad that Ms. Rogina mentioned the
education process because there is a great learning curve for
people who are employers. She said she believes the Hotel and
Motel Association is not only the biggest hiring of entry-level
people but they also have the biggest hiring of various ethnic
groups and so forth, so they're the most vulnerable for these kinds
of discrimination cases to come forward. Chair James urged Ms.
Rogina to continue her education process with her employers so they
know just exactly what is required of them to be able to
substantiate whatever decision that they make.
CHAIR JAMES announced HB 468 will be held in the House State
Affairs Standing Committee for further discussion.
SB 307 - U.S. SENATE VACANCIES
Number 0643
CHAIR JAMES announced the next order of business is SB 307 am, "An
Act relating to conditions for filling vacancies in the office of
United States senator; and providing for an effective date,"
sponsored by Senator Halford.
CHAIR JAMES made reference to HB 377, which was previously heard in
committee and is the companion to SB 307. [HB 377 is currently in
the House Rules Committee].
Number 0651
BILL STOLTZE, Legislative Assistant to Senator Rick Halford, Alaska
State Legislature presented SB 307. He explained SB 307 makes a
simple change to our statute regarding the appointment of U.S.
senators by requiring the person appointed by the governor to fill
a vacancy shall be a member of the same party as the predecessor
and that the appointment be confirmed by the legislature. Mr.
Stoltze indicated it's a fairly straightforward policy call.
Number 0664
REPRESENTATIVE BERKOWITZ said he believes the primary thrust is to
ensure that the will of the voters is upheld as best as possible.
MR. STOLTZE acknowledged that's the primary thrust.
REPRESENTATIVE BERKOWITZ asked Mr. Stoltze, "You don't have any
particular (indisc.) of either one of our senators right now."
MR. STOLTZE indicated this really isn't about any particular
individuals or who happens to be governor. He said, "I think you
want to fix a leaky roof while it's sunny rather than wait until
it's raining."
Number 0674
JIM BALDWIN, Assistant Attorney General, Civil Division, Office of
the Attorney General, Department of Law, said this bill differs
slightly from Representative Hodgins' bill in that it would add the
confirmation requirement by the majority of the members of the
legislature in joint session. He said he thinks the House bill
makes it a caucus confirmation question.
MR. BALDWIN reported that as SB 307 went through the Senate
committees, it merely had the requirement on it that the appointee
be from the same political party as the predecessor in office;
however, that was changed on the floor of the Senate to add the
confirmation requirement. Therefore, the department did not get to
testify in any committee about the confirmation issue so the
Department of Law wanted to make the record today of their position
on the legal issue involving confirmation. He said, "We made it
here in connection with Representative Hodgins' bill, but it's a
slightly different approach."
Number 0693
MR. BALDWIN said Article 17 of the U.S. Constitution provides for
how U.S. senators are to be appointed or elected and it states that
the legislature of any state may empower the executive thereof to
make temporary appointments until the people fill the vacancies by
election as the legislature may direct. There's no mention in the
U.S. Constitution about a confirmation requirement. In Alaska, the
power of appointment is viewed as an executive power and that
confirmation is a sharing of that executive power. Under the
Alaska Supreme Court case of Bradner v. Hammond, our supreme court
said that the legislature may participate in the executive's power
of appointment only in situations where it is specifically
authorized under our constitution.
MR. BALDWIN said he believes there is a very clear legal issue
about the validity of the confirmation requirement and that it
should be carefully considered. He said this a point which he has
often been in disagreement with the legislature about - because the
legislature as an institution often is fond of a confirmation
requirement to share in the power of the appointment and that seems
to be the policy that's expressed here. However, it can complicate
the appointment situation. As we look down the road, if there is
a disagreement between the governor and the legislature over a
particular appointment, he thinks history has shown us that this
can become a difficult situation, not only for the governor but
also for the legislature. For example, in the early days of the
state, Governor Egan had a disagreement with the legislature about
an appointment to fill a state office, and this went on for some
time because of the confirmation requirement that we have in
existing law for filling vacancies. He indicated it complicated
the timeliness within which the position could be filled and that
harms everyone when it cannot be done expeditiously. Mr. Baldwin
said, "There can be some difficult situations presented to the
legislature in the appointment process if there cannot be, in the
confirmation process, the governor can present the legislature with
difficult choices which is exactly what happened between Governor
Egan and the legislature in those days. So it's a two-edge sword
here, by wanting to participate in the process, it not only slows
it down, but it..."
TAPE 98-39, SIDE A
Number 0001
MR. BALDWIN continued. ...future felt that the legislature's
participation was not appropriate and that the matter should be
litigated before an appointment is made to fill the vacancy. Or a
particular appointment could be - the validity of it could be under
a cloud until litigation is resolved. Mr. Baldwin said he believes
it's a very important issue for consideration. He urged the
committee to return the bill back to its original version, as it
was considered in the Senate committees, and not as it was amended
on the floor [where it didn't have the confirmation requirement by
the legislature].
CHAIR JAMES noted she only has one version of SB 307 amended,
Version E. She pointed out there is no provision for confirmation
in this bill.
CHAIR JAMES asked what if we didn't have the confirmation. She
said she can understand his argument on the confirmation and that
she has a tendency of not wanting to going through process either.
The way the current process works, as she understands it, is that
when a replacement from a particular political party needs to be
made, that the political party submits at least three names, the
governor then would have the choice of selecting one of those three
names. Chair James asked Mr. Baldwin, in the current system, what
if the governor doesn't like any of those three names as a
replacement, what does he do.
Number 0058
MR. BALDWIN replied the current process is one that Representative
Hodgins' bill was intended to remedy, it's silent as to what you do
with a U.S. senator, it just says the governor shall appoint. It's
for state offices that there's a difference in treatment when you
have a vacancy. And that's where you get the recommendation of the
district committees when you have a vacancy between the primary and
the general, but that custom of obtaining the recommendations of
the district committees is also carried forward to vacancies that
occur after a general election as well. But (indisc. - noise)
Representative Hodgins' bill [HB 377] is seeking to formalize that
custom in the law. But as to U.S. senators, it's been silent about
participation by party members, and it even has been silent as to
whether it be from the same party or not. Mr. Baldwin said, "In
fact, in one instance in our history, there was an appointment of,
I believe a Republican when there was a vacancy from a..."
CHAIR JAMES interjected, she noted we currently have that senator.
She said, "I understand that if we're assuming that whichever
political party that this senator or congressman is from has been
elected by that party in the state, and that there was a philosophy
that goes along with that, and so it stands to reason that if
something happens to that person then there is a replacement that
it should be of the same party. And I'm very very supportive of
that issue. What I'm not clear about, what we should do is, how do
those nominations get to the governor. And you know, one of the
things that we have a problem with here, we have this problem with
playing political games and that's the part of this job that I
don't like, but I like to make rational decisions. Well, it would
seem to me, if I was a Democrat or a Republican and I had a
Democrat - or my party person in there and they left, I would
certainly want that appointment to be by somebody who could be
elected next time out. And it is very possible that if there isn't
some participation from the party to put up the names of potential
people to do that, that the governor - may be of a different party
could choose somebody who met just the party requirements but
actually wouldn't put in somebody that could be reelected. So I
think that the next election tells the story when the public goes
to vote that's the issue, and if it's early in a term, that's
something else. But are you saying it's only temporary until we
have a vote anyway."
MR. BALDWIN replied that's right.
CHAIR JAMES continued. She said so it really doesn't make any
difference, as long as they qualify as a party member and that the
confirmation, or the other thing, doesn't apply in this case.
MR. BALDWIN replied under this bill it would.
CHAIR JAMES stated she understands that, but in the reality of it,
is agreeing with him that it doesn't have a place in this because
we are only talking about a temporary assignment until an election
can be held.
MR. BALDWIN replied right.
Number 0134
CHAIR JAMES asked, "If there's a certain length of time left in
that period would they not go to election until the new one..."
MR. BALDWIN interjected. He said he believes that's right, but he
would have to look at the statute.
CHAIR JAMES asked but if it's longer, then that person has to go up
for election.
MR. BALDWIN replied there's minimum period, if there's more time
left in the term then you take it to a special election and fill
the vacancy that way. He also noted, from a brief survey of what
happens in other states, it's pretty common for there to be a
statutory requirement that the appointment made be filled from the
same party. He said he advised the governor that there really
isn't much they can say about this part of it, saying that it be
from the same political party, that's a policy call for the
legislature to make that a requirement and that's perfectly valid.
CHAIR JAMES said she would like to go a little further and say that
the process of putting the names forward from the party, because
the whole thing could be persuaded to be going in a different
direction if the governor would put in the wrong name for whichever
party it was. Chair James noted Alaska has more people who are not
of a party then we do of a party, so if we were a party state,
where everyone had to vote their party, it might be easier to
choose. She said, "But in this case, where we have half the people
who don't necessarily vote by party, and of course, I'm a strong
party person, I was when I was a Democrat, and I am now - I'm a
Republican. I really believe in the party structure and I think it
does make a difference and so I would like to have something in
here, maybe to do that."
Number 0170
REPRESENTATIVE BERKOWITZ made a motion to adopt proposed Amendment
LS1574\EA.1, Glover, 3/18/98 [Amendment 1]. He explained it
provides that the governor should call a special election to
determine (interrupted)... Representative Berkowitz said, "It
seems to me, that if we're worried about the will of the people,
the best thing is go to the people and allow the choice to come
from them as to who they feel ought to represent them in that
important post in D.C. Say the governor gets to pick, and the
parties get to put the names before him, then in a way we put
ourselves in the box of either, (Indisc.) someone with all the
advantages of an incumbency, or else having the governor of an
opposite party draw someone out who might not be capable of winning
that election."
Page 1, lines 5 - 13: Delete all material and insert:
Sec. 15.40.010. Condition [CONDITIONS] and time of calling
special election [FILLING VACANCY BY APPOINTMENT]. When a
vacancy occurs in the office of United States senator, the
governor [, WITHIN 30 DAYS,] shall, by proclamation and
subject to AS 15.40.050, call a special election to be held on
a date not less than 60 nor more than 90 days after the date
the vacancy occurs [APPOINT A QUALIFIED PERSON TO FILL THE
VACANCY]. However, if the [REMAINDER OF THE TERM OF THE
PREDECESSOR IN OFFICE WILL EXPIRE OR IF THE] vacancy occurs on
a date that is less than 180 but more than 60 days before the
date of the primary election for the office [WILL BE FILLED BY
A SPECIAL ELECTION BEFORE THE SENATE WILL NEST MEET, CONVENE,
OR RECONVENE], the governor may not call a special election
{FILL THE VACANCY].
Sec 2. AS 15.40.050 is amended to read:
Sec. 15.40.050. Date of special election. The special
election to fill the vacancy shall be held on the date of the
first [GENERAL] election, whether primary or general, [WHICH
IS HELD MORE THAN THREE FULL CALENDAR MONTHS] after the
vacancy occurs if the vacancy occurs on a date that is less
than 180 but more than 60 days before
(1) a primary election, other than the primary election for
the office; or
(2) a general election.
Sec. 3. AS 15.40.060 is amended to read:
Sec. 15.40.060. Proclamation of special election. The
governor shall issue the proclamation calling the special
election at least 50 [80] days before the election.
Sec. 4. AS 15.40 is amended by adding a new section to read:
Sec. 15.40.075. Date of nominations. Candidates for the
special election shall be nominated by petition transmitted to
the director before the 21st day after the vacancy occurs by
(1) the actual physical delivery of the petition in person;
(2) mail postmarked not later than midnight of that date; or
(3) telegram of a copy in substance of the statements made in
the petition.
Sec. 5. AS 15.40.030, 15.40.040, 15.40.080, and 15.40.090 are
repealed.
Renumber the following bill section accordingly.
Number 0198
CHAIR JAMES asked Mr. Baldwin how long a temporary appointee can
fill a vacancy.
MR. BALDWIN referenced the language on lines 10 - 13, Version E:
However, if the remainder of the term of the predecessor in
office will expire or if the vacancy will be filled by a
special election before the United States senate will next
meet, convene, or reconvene, the governor may not fill the
vacancy.
MR. BALDWIN explained how he reads it is, if you don't have a
naturally occurring election in that period left of the term, then
you appoint. But if there's an election that comes up, then you'd
do it by election.
CHAIR JAMES asked what do we do currently.
MR. BALDWIN replied that's in existing law, you're not changing
that.
Number 0223
CHAIR JAMES remarked, "It's interesting that you would come up with
this, Representative Berkowitz (laughter). It seems to me like
I've just been seeing pieces of paper go by here in this committee
all year taking power away from the governor from the Republicans,
and here you are, a Democrat and now you want to take power away
from the governor."
REPRESENTATIVE BERKOWITZ joking replied, it's infectious.
Number 0237
REPRESENTATIVE HODGINS objected to Amendment 1.
REPRESENTATIVE ELTON, speaking in support of the amendment, said if
we're going to tinker with the way things are right now and
contemplate the change in the way we appoint a senator, should a
vacancy occur, then this would be the appropriate way of doing it.
Instead of shifting controls to the legislature, why don't we shift
it back to the people who are going to be served by the person who
is going to be in the U.S. senate. This is the logical step to
take, this is the step that ensures the process that we have now,
when we select a senator it's maintained, it lets the people choose
rather than a politician, or as contemplated in this bill, a small
set of politicians choosing.
CHAIR JAMES indicated they still have quite a lot more work to do
on this bill. She asked if the objection to the amendment is
maintained. She was informed there is no one on teleconference.
REPRESENTATIVE HODGINS maintained his objection.
CHAIR JAMES asked for a roll call vote. Representatives Elton,
Berkowitz and James voted in support of it. Representatives
Hodgins, Dyson and Ivan opposed it. Therefore Amendment 1 failed
by a vote of 3-3.
Number 0280
REPRESENTATIVE ELTON suggested it may be appropriate to ask for a
fiscal note from the legislature because the bill contemplates the
confirmation could happen by a majority of members in a joint
session of the legislature and that could mean that we're going to
need to have an interim meeting that we wouldn't otherwise have.
CHAIR JAMES said she didn't think that is necessarily true, she
mentioned she needs to talk to the sponsor of the bill. Chair
James announced SB 307 would be held in the House State Affairs
Standing Committee for further consideration.
HB 408 - SEISMIC HAZARDS SAFETY COMMISSION
Number 0295
CHAIR JAMES announced the next order of business is HB 408, "An Act
establishing the Alaska Seismic Hazards Safety Commission,"
sponsored by Representative Davies.
REPRESENTATIVE DYSON asked if it was her intention on moving it out
today.
CHAIR JAMES replied she didn't know because they haven't heard it.
If we get done in time, and we're happy with it certainly we could
vote on it.
Number 0303
REPRESENTATIVE JOHN DAVIES, Alaska State Legislature, presented HB
408 and distributed a map which illustrates Alaska as "earthquake
country." He mentioned we have some of the largest earthquakes in
the world. The map lists the ten largest earthquakes that have
occurred in the world in the last century or so. As you can see
three of those ten have occurred in Alaska, of course everybody is
familiar with the 1964 earthquake that occurred in Anchorage.
TOP TEN QUAKES IN THE WORLD, 1904-1992:
Chile, 1960, 9.5
Alaska, 1964, 9.2
Alaska, 1957, 9.1
Kamchaka, 1952 9.0
Ecuador, 1906 8.8
Alaska, 1965, 8.7
Assam, 1950, 8.6
Banda Sea, 1938, 8.5
Chile, 1922, 8.5
Kuriles, 1963, 8.5
REPRESENTATIVE DAVIES indicated the point of the map is to say
that, while that was the second largest earthquake that occurred in
recorded history, that's not an unusual earthquake for Alaska. So
the point is, we should expect earthquakes to occur in the future.
How often they occur and where they occur is a subject of a lot of
research, some of which he was engaged in years ago.
Number 0327
REPRESENTATIVE DAVIES said the purpose of the bill is to establish
a "Seismic Hazard Commission." The commission would be housed in
the Office of the Governor. The purpose would be to provide an
umbrella, coordinating and clearinghouse kind of function for
seismic hazard mitigation work. He said seismic hazard mitigation
work is the work that is focused on both the design of buildings
and locating buildings in such a way that damage that occurs, when
the next earthquake occurs, will be minimized. So it's sort of the
prevention versus response kind of issue. He said we can prevent
a lot of damage if we have appropriate building codes, we can also
prevent loss of lives if have appropriate building codes and land-
use plans.
REPRESENTATIVE DAVIES explained the commission would focus on
trying to implement those ideas and coordinate them across agencies
in the state. He said there currently is a significant amount of
work going on, but it's mostly ad hoc. It's by one agency or the
other, private groups, the Anchorage "Geotech" Commission does a
lot of good work, but that focuses, of course in Anchorage.
REPRESENTATIVE DAVIES said there's another commission that's the
response commission that currently exists, and again, that's for
planning for response. He indicated these are very closely related
but are two different functions. One is to prevent as much as
possible (indisc. - noise) the need for a response in case of an
earthquake. So we do need to plan for responses because we will
have earthquakes, they will be damaging, there will be injuries and
loss of lives, so the planning function is very important.
Representative Davies said that's already taken care of in the
existing statutes, what he's contemplating here is the prevention
part.
Number 0360
ROD COMBELLICK, Chief Engineering Geology, Division of Geological
and Geophysical Surveys, Department of Natural Resources, testified
in support of HB 408 via teleconference. He said, "From my
perspective, as one who works primarily in the area of earthquake
geology, finding out where these areas are that are more
susceptible to earthquake damage, I think this is an important bill
and a seismic safety commission for Alaska is long over due."
MR. COMBELLICK said, as Representative Davies indicated, Alaska is
one of the most seismically active areas in the world. He noted
we've been lucky for the last 34 years that we have not had any
significant damage from earthquakes since the big one in 1964.
However, Alaska is like a big dartboard for earthquakes and our
communities are at the center of that dartboard. We've had a lot
of large earthquakes occurring, many earthquakes in the magnitude
of the six and seven range that fortunately have been occurring
away from our developed areas, but like shooting toward a
dartboard, eventually one of those darts hits a target and it's
only a matter of time before one of these large earthquakes hits
one of our developed areas. Mr. Combellick stated these urban
areas are expanding and we know we can expect this high rate of
seismic activity to continue, that there will be future large
earthquakes in Alaska, which virtually guarantees that one of these
urban areas will be hit.
Number 0387
MR. COMBELLICK pointed out Alaska is doing pretty well in the area
of emergency response preparedness primarily through the efforts of
the Division of Emergency Services, the Emergency Response
Commission, and through the Alaska Disaster Act. But we're way
behind in the area of mitigation - things that we can do to prevent
damage and thereby reduce the need for emergency response. Alaska
in fact is the only seismically active state in the country that
still does not have a seismic safety or advisory commission of some
sort. Ironically the first seismic safety commissions that were
established, starting with California, began as a result of the
Alaska 1964 earthquake. People realized that this is a reality
that was going to have to be addressed and that, although as
Representative Davies pointed out, we cannot predict the time,
size, or location of major earthquakes. We can identify areas
where the damage is likely to be greater, and therefore we can plan
and design our developments accordingly with proper building codes,
zoning ordinances, and just better public information.
MR. COMBELLICK mentioned there are presently 20 other states that
have seismic advisory boards of some sort, including states in what
we generally regard as low-seismic areas like Vermont, Illinois,
Delaware and New York. These states all have seismic advisory
boards, and these are separate from their own state emergency
response commissions. He stated it's because of this need to focus
the efforts of seismic mitigation in one body.
MR. COMBELLICK concluded, he said he thinks that this bill is
important in establishing a statewide seismic advisory commission,
we have a number of agencies doing different things in this area of
seismic hazards, with no-rule coordination, no real guiding force
to guide us in what direction we should go in these efforts. He
indicated the "geotechnical advisory commission," of the
Municipality of Anchorage is a good model of something that could
be done on a statewide basis. Mr. Combellick said he believes the
governor's office is an appropriate place for this commission
because of this need for coordination of many state and local
agencies.
Number 0427
NICO BUS, Manager of Administrative Services, Department of Natural
Services, and the Department of Military and Veterans Affairs
[shared position] came before the committee. Mr. Bus announced the
Department of Natural Resources is in support of this legislation
in terms of providing extra expertise in earthquakes, and those
types of hazards. He indicated Director Carol Carrol isn't able to
attend due to an emergency.
MR. BUS said the Department of Military and Veterans Affairs,
Division of Emergency Services, they have a staff of two
individuals, a hazard mitigation officer and an earthquake program
(indisc.) are responsible for identifying areas of danger and
methods to avoid or reduce the damage. (Indisc.) works with local
communities on these projects, and a commission like this would
basically add a source of information to this division as well as
the state Emergency Response Commission. The Emergency Response
Commission resides in the Department of Environmental Conservation
and has a different focus. Although they are responsible for oil
hazards, he belies a commission like this would just provide added
expertise and it would be beneficial to all people on this earth.
CHAIR JAMES said she has a question on the fiscal note and the
amendment. She stated the amendment says the Officer of the
Governor shall provide staff support to the commission. And the
fiscal note from the Office of the Governor assumes a "fourth-time"
clerical staff will support commission activities as technical
support needs will be met by existing staff in the Department of
Natural Resources. Chair James mentioned, "They don't need
anymore, but they need a 'fourth-time' clerical staff in the Office
of the Governor."
Number 0460
CHAIR JAMES said, "Yesterday, in fact is, I have a bill which would
license social workers, and I was in the Labor and Commerce
Committee with that and we heard testimony from Catherine Reardon
[Director, Division of Occupational Licensing, Department of
Commerce and Economic Development] -- because originally they told
me, in my negotiations, how we did the bill - wouldn't have a
fiscal note. But she came forward with a fiscal note for half-time
and when she explained to us how much time she needed, probably
additionally for the licensees there, and it came up to maybe 23
percent or whatever, but she said she was told she couldn't do
four-quarters of a person, she had to do for half. So I assume
this looks like a half here too, but you're saying it's a quarter
of time of clerical staff. ... So I'm wondering, if all they need
is a quarter, if they couldn't just absorb it. And so, I don't
have to deal with a fiscal note here. They can deal with the
fiscal note when it gets to Finance. But I think we do have to
kind of take a look at it and make comments about it anyway because
if it only requires a quarter of the time for clerical staff, it
seems to me like that needs to be then absorbed."
Number 0476
REPRESENTATIVE BERKOWITZ made a motion to adopt Amendment 1 by
Representative Davies:
Page 2, line 4, insert:
The Office of the Governor shall provide staff support to the
Commission.
CHAIR JAMES asked if there were any objections. There being none,
Amendment 1 was adopted.
CHAIR JAMES noted the other fiscal note from Division of Geological
and Geophysical Surveys, the Department of Natural Resources, is
just for travel - a couple thousand dollars.
REPRESENTATIVE DAVIES pointed out the fiscal note is redundant with
the travel that's in the Office of the Governor and will be
resolved when the bill gets to the House Finance Committee.
CHAIR JAMES said the committee can move it only with the other
fiscal note.
REPRESENTATIVE BERKOWITZ added that it can be moved with both
fiscal notes.
REPRESENTATIVE DAVIES said he didn't object.
Number 0490
REPRESENTATIVE BERKOWITZ mentioned he grew up in California and
this type of preparedness is absolutely essential. He stated the
property value saved, the loss of life, it's just incredible that
we're not making preparations and it seems one of the core things
that the government ought to be doing is to protect people in the
contingency in this sort of an emergency.
CHAIR JAMES said she agrees with his statement and intends to move
the bill. She indicated her hesitancy is when we put on another
level of regulations and requirements that we inhibit some
activities that may not happen or are too expensive. She said you
could say, if you're going to make yourself safe, that there's no
expense that's too much. She asked Representative Davies what he
anticipates, what kind of interference or change might he see in
the construction industry in the state.
Number 0505
REPRESENTATIVE DAVIES replied that's a fair question, that's one
that, of course, one struggles with all the time in prevention-type
activities. How much prevention is appropriate? He noted there is
a provision at the end of the bill that provides that this
commission would not take over responsibilities or duties away from
any existing agencies. So the intent in that is to say that
there's no additional regulations that would be put in place by
this advisory commission. The intent is that it be a catalyst for
action. So rather than being in the way of anything happening, the
hope is that it would bring people together that are working on
different pieces of the same puzzle and put it together.
Sec. 5. This Act is not intended to transfer the Alaska
Seismic Hazards Safety Commission the authorities and
responsibilities of other state agencies, boards, councils, or
commissions or of local governments.
CHAIR JAMES asked if it would be awareness.
REPRESENTATIVE DAVIES replied part of it is certainly awareness.
One of its activities, that does go on from time to time, is having
workshops where you bring for example structional engineers
together and coach them and train them in a new addition to
building code or that kind of thing. That's one of the activities
that is actually done currently to some extent by some folks in
"DES" and also by some, under the sponsorship of the Anchorage
Geotech Advisory Commission from time to time. He said these
things are happening now, but on an ad hoc basis, here and there.
They need to be strengthened and they need to be coordinated. He
said he thinks by bringing the existing pieces together, that the
existing parts would make a stronger hold.
Number 0532
REPRESENTATIVE IVAN IVAN said the only concern he has is with the
role of private companies, with their architectural plans. He
asked, "Must they do the same thing as you do with the fire
marshall, approving buildings prior -- will we get to that point."
REPRESENTATIVE DAVIES replied the way that most seismic hazard
mitigation is implemented is primarily through the building code or
through land use planning which happens right now. This wouldn't
change that. This commission would be an advisory to those
existing mechanisms of building codes. And generally, if you add
a requirement to the building code, and you know about it up front,
it adds very little cost. If you have to retrofit, at some time
later down the road, it can be very expensive. He mentioned that
is one of the issues that California is struggling with right now,
there's a great issue for example with unreinforced masonry, many
of those buildings are through various incentive programs.
California is helping building owners retrofit some of those kinds
of buildings. Those things can be expensive but the cost is
recognized in those things, the building owners recognize that they
are reducing their exposure and risk to law suites by doing that.
So there's a tradeoff that has to be balanced in the impact of a
regulation on an industry. Representative Davies said there's no
new mechanism envisioned by having this commission it's just that
this commission will be advisory to those existing mechanisms that
provide for building codes and for land use plans.
Number 0560
CHAIR JAMES stated she is troubled with the building code issue
because "we change them like we change our shirt," and then we end
up having buildings out of compliance. She indicated that's always
bothered her, we know things more tomorrow than we do know today.
She said it seems to her like we just have a practice of upgrading
them all the time to new materials mostly. She said she believes
the building codes are driven by the supply industry of new
materials and things that they find, or new methods that they've
learned. So it doesn't necessarily mean, when there's a code
violation that there's a serious deficiency in the building. It
seems like we're just going to add one more reason that we'll be
changing our code more often and she hoping that that's not true.
REPRESENTATIVE DAVIES replied he is sure that happens but he
doesn't think it's as common as perhaps she implied. He said he
thinks most of the codes are driven through professional
organizations like the Structural Engineers Association. They're
national and international groups, they go out, and one of the
things that happens after a large earthquake for example is a team
of engineers goes out and examines what happened and they learn
lessons. And then those lessons learned are digested through many
professional meetings and then are promulgated then as code
revisions. They're saying, "Look, we did this wrong, we didn't tie
these beams together properly," so the next revision of the code
ought to provide for a flange in that kind of a joint. So those
kinds of issues, and lessons learned, are then brought forward and
we do learn things as time goes on and that's the natural
progression of why codes change. Representative Davies said he
believes we also generally provide for grand fathering, that a
building is built under a particular code is legal and safe and
everything as long as the building doesn't get substantially
changed. If a substantial amount money is going to be invested to
modify the building, or something like that, then usually the
requirement is to bring the building up to code if it is a viable
thing to do financially.
REPRESENTATIVE BERKOWITZ said most of his experience with this has
been retrofitting houses, it's easy to put in shear walls and bolt
the house down to the foundation, which is all you need to do for
most places and take care of the unreinforced masonry problem. He
said those seem to be the big three of what to do, and indicated
that's not a real problem up here.
Number 0597
REPRESENTATIVE BERKOWITZ made a motion to move HB 408 as amended
with individual recommendations and attached fiscal note.
CHAIR JAMES asked if there were any objections. Hearing none, CSHB
408 (STA) moved from the House State Affairs Standing Committee.
ADJOURNMENT
Number 0611
CHAIR JAMES adjourned the House State Affairs Standing Committee at
10:14 a.m.
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