Legislature(2005 - 2006)BUTROVICH 205
03/17/2005 03:30 PM Senate STATE AFFAIRS
| Audio | Topic |
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| Start | |
| SB134 | |
| SB132 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 132 | TELECONFERENCED | |
| *+ | SB 134 | TELECONFERENCED | |
| *+ | SJR 8 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
SENATE STATE AFFAIRS STANDING COMMITTEE
March 17, 2005
3:39 p.m.
MEMBERS PRESENT
Senator Thomas Wagoner, Vice Chair
Senator Charlie Huggins
Senator Bettye Davis
Senator Kim Elton
MEMBERS ABSENT
Senator Gene Therriault, Chair
COMMITTEE CALENDAR
SENATE BILL NO. 134
"An Act relating to arrest; relating to investigation standards
for police officers conducting criminal investigations and
violations of those standards."
HEARD AND HELD
SENATE BILL NO. 132
"An Act relating to complaints filed with, investigations,
hearings, and orders of, and the interest rate on awards of the
State Commission for Human Rights; making conforming amendments;
and providing for an effective date."
HEARD AND HELD
SENATE JOINT RESOLUTION NO. 8
Proposing amendments to the Constitution of the State of Alaska
relating to and limiting appropriations from and inflation
proofing the Alaska permanent fund by establishing a percent of
market value spending limit.
SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: SB 134
SHORT TITLE: POLICE INVESTIGATION STANDARDS/ARRESTS
SPONSOR(s): SENATOR(s) BUNDE
03/08/05 (S) READ THE FIRST TIME - REFERRALS
03/08/05 (S) STA, JUD
03/17/05 (S) STA AT 3:30 PM BUTROVICH 205
BILL: SB 132
SHORT TITLE: HUMAN RIGHTS COMMISSION
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
03/04/05 (S) READ THE FIRST TIME - REFERRALS
03/04/05 (S) STA, JUD
03/17/05 (S) STA AT 3:30 PM BUTROVICH 205
WITNESS REGISTER
Tamara Delucia,
Victims Rights Advocate
1007 West 3rd Avenue, Suite 205
Anchorage, Alaska 99501-1936
POSITION STATEMENT: Testified on SB 134
Saralyn Tabachnick, Executive Director
Aiding Women in Abuse and Rape Emergencies (AWARE)
P.O. Box 20809
Juneau, AK 99802
POSITION STATEMENT: Testified on SB 134
Darwin Peterson,
Deputy Legislative Director
Office of the Governor
Alaska State Capitol
Juneau, AK 99801
POSITION STATEMENT: Introduced SB 132
Jan DeYoung,
Chief Assistant Attorney General
Statewide Section Supervisor
Department of Law
Anchorage, AK
POSITION STATEMENT: Explained the sectional analysis for SB 132
Lisa Fitzpatrick, Commissioner
Alaska State Commission on Human Rights
800 A Street, Suite 204
Anchorage, AK 99501-3669
POSITION STATEMENT: Testified on SB 132
Paula Haley, Executive Director
Alaska State Commission on Human Rights
800 A Street, Suite 204
Anchorage, AK 99501-3669
POSITION STATEMENT: Testified on SB 132
ACTION NARRATIVE
VICE-CHAIR THOMAS WAGONER called the Senate State Affairs
Standing Committee meeting to order at 3:39:55 PM. Present were
Senators Davis, Elton and Vice-Chair Wagoner.
SB 134-POLICE INVESTIGATION STANDARDS/ARRESTS
3:40:30 PM
VICE-CHAIR THOMAS WAGONER announced SB 134 to be up for
consideration and asked for a motion to adopt the committee
substitute (CS).
SENATOR KIM ELTON moved CSSB 134, \Y version, as the working
document. There being no objection, it was so ordered.
3:41:14 PM
SENATOR CON BUNDE, Sponsor, told members he is expecting more
information from the Department of Public Safety (DPS) and asked
that the committee take no action until that information is
received.
He reported that Alaska has the unfortunate and shameful legacy
of leading the nation in sexual assaults. Alaska is diverse and
has many small communities. If those communities had more
resources, they would be better able to address the high level
of sexual assaults. SB 134 would require the Police Standards
Council to set a level of standards for investigation in sexual
assault cases and to enforce those standards. Small communities
may not have access to the latest techniques, equipment and
training and may be unaware of what the public might expect.
The legislation seeks to create a common standard so that the
expectations for police enforcement would be the same in
Anchorage as in a village. The Police Standards Council should
decide on the professionalism of any police officer regarding
discipline, reprimand and revocation of certification. With few
exceptions, police officers maintain high standards and do the
best job possible.
The Alaska Medical Association disciplines its own members and
the Police Standards Council should discipline police officers,
he asserted. The committee substitute addresses a requirement
for arrest by giving police officers more latitude to make
arrests based on probable cause.
3:45:54 PM
VICE-CHAIR WAGONER announced a brief at-ease at 3:46:44 PM.
3:47:36 PM
TAMARA DELUCIA, Office of Victims Rights, stated support for the
measure to standardize procedures and to require cases to be
submitted to the district attorney (DA) for review. This would
benefit victims in particular in light of the high rate of
sexual assault crimes in Alaska.
SB 134 provides a very good opportunity for the Police Standards
Council to level the playing field and bring rural communities
in line with investigation standards that exist in urban areas
such as Anchorage, Fairbanks and Juneau.
Small villages in rural communities are at a disadvantage
because of the lack of proximity to troopers and the type of law
enforcement system that's available. Anything that can be done
to assist Village Public Safety Officers (VPSO) in pursuing a
quality investigation can only be viewed as positive.
3:49:05 PM
SENATOR ELTON read new language from version Y:
(4) shall make an arrest at the time a peace officer
determines to be appropriate and when the peace
officer has reasonable cause to believe that a crime
has been committed and the person to be arrested has
admitted committing the crime to a peace officer or a
peace officer has listened to a recording of the
admission.
Having assumed it works that way now, he asked for an example to
the contrary.
MS. DELUCIA responded the Office of Victims' Rights doesn't
necessarily support the mandatory arrest provision, but it does
support Section 2 that allows the Council to adopt regulations
for minimum standards for the conduct of criminal
investigations. She particularly favors delivering investigation
results to the prosecutor, addressing victims safety concerns,
writing incident reports and securing the crime scene. Every
crime is different and certain evidence collection issues and
arrest determinations shouldn't be standardized. However, for
the most part they support the opportunity for APSC to set
standards.
VICE-CHAIR WAGONER noted that Senator Bunde wanted to address
the question as well.
SENATOR BUNDE referenced the new language and told Senator Elton
that unfortunately that isn't the case. SB 134 is the result of
a conversation with a constituent about an assault that occurred
in which the offender admitted guilt, but no arrest took place.
In discussing the situation with police authorities, he learned
the police often do not arrest a person early in the
investigation so that they can build a stronger case.
His concern relates to the need to protect the public while not
tying the hands of law enforcement. He suggested placing the
names of such suspects in the system to assist in investigating
other unsolved cases because many offenders are actually re-
offenders.
SENATOR ELTON asked if the decision to wait to arrest is based
on the premise that you don't arrest the "little fish" to find
the "bigger fish."
SENATOR BUNDE said an arrest might be delayed so that the big
fish is thoroughly hooked before prosecution begins.
3:53:37 PM
MS. SARALYN TABACHNICK, Executive Director, Aiding Women in
Abuse and Rape Emergencies (AWARE), spoke on behalf of victims
of sexual assault and domestic violence. She explained that the
crime of assault or rape is one of the most difficult to report
because victims often feel shame or a sense of responsibility.
Judgments are made about rape survivors that aren't made about
other violent crimes survivors.
Typically peace officers do a good job of investigating domestic
and sexual assaults, but sexual assault survivors need messages
that are clear in words and action so they know an investigation
is moving forward to build the best case possible. SB 134
provides accountability, which can have a tremendous impact on
holding offenders accountable and allowing survivors to heal
from the victimization.
3:55:52 PM
VICE-CHAIR WAGONER announced he would set CSSB 134, version Y,
aside until next week.
SB 132-HUMAN RIGHTS COMMISSION
3:56:54 PM
VICE-CHAIR WAGONER took up SB 132 and told members he did not
intend to take action on it today.
3:57:25 PM
DARWIN PETERSON, Deputy Legislative Director, Office of the
Governor, introduced Assistant Attorney General Jan DeYoung and
thanked the Alaska State Commission on Human Rights for the hard
work it does. He explained that SB 132 would allow the
commission to evaluate complaints of unlawful discrimination and
allocate its resources to prosecute the complaints that will
best serve the commission's goal of eliminating unlawful
discrimination. Included are provisions designed to improve the
commission's procedures and to enhance its fairness. It also
contains provisions to clarify the remedies the commission
awards to remedy unlawful discrimination as well as few
miscellaneous housekeeping changes.
3:58:47 PM
VICE-CHAIR WAGONER asked Ms. DeYoung for a sectional analysis.
JAN DeYOUNG, Chief Assistant Attorney General, Department of
Law, said she would describe the differences between version Y
and the version that passed the Senate last year. She said:
Section 1 of the bill would amend AS 18.80.100 to ensure
that a complainant can withdraw a complaint of unlawful
discrimination during the investigation and conciliation
phases of the procedures. Basically what this would do to
the existing statute is it makes it clear that not only can
the person file the complaint, but they have the capacity
to withdraw the complaint at any time if they wanted to.
That is important in this bill because the bill gives the
executive director enhanced discretion to choose whether to
take a bill [complaint] forward or not. And so this would
give the individual an opportunity, if they didn't like the
decision that was being made or to withdraw and then go to
court or to other procedures that would be available to the
person.
3:59:22 PM
SENATOR ELTON noted the Select Committee on Legislative Ethics
could file its own complaint and move forward. He asked whether
the Human Rights Commission has the same authority and that this
wouldn't abridge that authority.
MS. DeYOUNG replied that's correct. The executive director and
commissioners have the authority to file complaints of unlawful
discrimination.
SENATOR ELTON asked whether the commission could file a new
complaint involving the same circumstance if a complainant
withdrew a complaint.
MS. DeYOUNG answered she thought so.
4:01:11 PM
MS. DeYOUNG continued:
Section 2 would add two subsections to the bill. One
addresses the authority of the executive director to
file a complaint. That's a carry over from the
statute, as it exists right now. Subsection (c) -
that's in Section 2 - would add a statute of
limitations of 180 days after complaint. This simply
takes the existing statute of limitations in
commission regulations and moves it into the statute.
SENATOR ELTON referenced his initial question and said he
understands some of the commission investigations take a long
time. He questioned whether the 180-day statute of limitations
would preclude the commission from filing its own complaint if
the complainant withdrew a complaint that had gone on for two
years.
MS. DeYOUNG said that's correct. The individual would more than
likely be going to court and the statute of limitations for a
judicial action is much longer. Presumably the commission
complaint was withdrawn because the individual wanted to take
control over the action, which would provide the opportunity to
go to court. "So the commission would need to be acting within
their own statute of limitations also," she said.
SENATOR ELTON suggested it might be reasonable to include a
provision that says a complaint may be filed not later than 180
days after the alleged discriminatory practice or 30 days after
a complaint was withdrawn. Doing so wouldn't preclude the
commission from pursuing a complaint that had been withdrawn.
MS. DeYOUNG replied the 180-day timeframe is the existing
framework in regulation and she didn't know whether this had
proven to be difficult. She wasn't aware of how many complaints
the executive director files or whether this is something she
has considered after a complainant withdraws a complaint.
VICE-CHAIR WAGONER commented he couldn't see any reason why the
commission would want to continue with a complaint that an
individual had withdrawn so they could pursue it in court.
MS. DeYOUNG said in general the commission concludes the case in
those situations.
SENATOR ELTON said the point is well taken if the person is
going to court, but a complainant might withdraw a complaint and
not go to court.
VICE-CHAIR WAGONER suggested committee might amend the bill to
say that if a person didn't elect to pursue the complaint in
another venue, the commission could do so.
SENATOR HUGGINS said limiting the timeframe to 6 months to
prevent allowing a complaint to be filed in perpetuity.
4:06:25 PM
MS. DeYOUNG continued:
Section 3 addresses what would happen if there's a
settlement. It basically encourages settlement and
requires that settlement agreements - and this is by
the commission with the concurrence of both the
respondent and the complainant - those are put into
writing and they have the force and effect of any
commission order.
4:06:48 PM
Section 4 adds a new section giving the executive
director expanded discretion to determine which cases
to take forward to a hearing after the investigation
concludes that there's substantial evidence of
discrimination. This provision is in response to a
court case that reversed a commission, which had
elected - after investigation - not to pursue a case
because even though it found a prima-facie case
supported by substantial evidence. It had found that
the evidence was weak or the defenses were strong and
it wasn't a strong case meriting a hearing. And the
Supreme Court reversed that and said all cases with a
substantial evidence finding must go to hearing.
The purpose of Section 4, which is one of the
keystones of the bill, is to expand that discretion to
allow the executive director to make the kinds of
choices that a prosecutor would make in determining
whether to pursue to prosecution of a crime. The
cooperation of the complaining witness, the strength
of the evidence, the public policy to be served, and
whether there are any good defenses against the prima-
facie charge.
I
4:08:55 PM
In Section 4 we did narrow the listing of items that
the executive director could consider when deciding
whether to go forward with a case to hearing as a
result of testimony that came out in the House State
Affairs Committee last year.
Section 5 on the hearing there's a couple of things.
One of the things it does that's different this year
is that it coordinates with the central panel hearing
officer system that was adopted by the Legislature
last year. That bill did bring the Human Rights
Commission into the central hearing office so that the
chief administrative law judge would be appointing
hearing officers to hear human rights commission cases
beginning July 1, 2005.
This bill makes a minor change to that by expanding
the number of provisions in the hearing officer bill
that will apply to the commission. In other words,
rather than just it be appointment authority, the
ability to disqualify a hearing officer for bias the
provisions about public records - some of the others
are mechanics of how the central panel system will
also be applied to the human rights commission under
this bill.
It also brings the bill into the Administrative
Procedures Act to bring the human rights commission
into closer conformity with the standard for most
administrative agencies in the state. ... Any specific
provisions in the human rights law would control over
the general provisions in the Administrative
Procedures Act.
4:10:51 PM
Subsection (c) addresses amendments to a complaint
after it's referred for a hearing and it does allow
reasonable and fair amendments to the accusation that
is issued against a respondent. But it does require
that any new charges be supported by the same kind of
substantial evidence finding that was required
initially of the basic charges. And it also requires
an opportunity for the respondent and the complainant
to go through the conciliation process so that there's
no circumventing the settlement opportunity through
the amendment process.
4:11:33 PM
Subsection (d) would add a burden of proof to set the
standard at a preponderance of the evidence, which is
the general standard that is used both in court and in
most administrative hearings.
Subsection (e) there is a provision adding a summary
judgment type process similar to a judicial summary
judgment, which would allow the commission to decide a
case without a formal hearing with live witnesses if
there are no disputes over facts and only disputes on
the law.
4:12:05 PM
Section 6 addresses an important component of the
bill, which is the remedial provisions. The goal here
- and they're addressed principally the employment
area because that is the area where most of the
commission's work is done - is to make the process
more predictable and certain for both the complainant
and for the respondent. It incorporates into statute
the case law, which says that remedies are economic
remedies that the commission can award. They don't
award punitive damages; they don't award non-economic
financial remedies such as pain and suffering. And so
that would incorporate that into the statute so that
would be clear for all to know that that's what the
commission's authority is.
The remedial provision also makes reinstatement the
principle remedy for employment discrimination - if
that's possible - and a restoration of any back pay
that's lost. If it's impossible for circumstances that
are laid out in the bill to return a person to work
... there is the possibility to award front pay. But
since that is a speculative and forward looking remedy
a cap at one year is placed on that remedy.
There are also a number of conforming amendments that
are made.
4:13:45 PM
Section 12 differs from last year's bill.
The word "pay" is defined and the reason for that is
to ensure that when back pay or front pay are awarded
that that is a full remedy to the victim and it's not
simply salary. In other words if there's benefits or
some other remuneration associated with the employment
that is included in a front pay or a back pay award.
It's intended to be included.
[Section 17 has] another minor difference between this
bill and laws year's bill is that there is a July 2
effective date. And the reason for that is for an
orderly adoption that knits together nicely with the
effective date of the central panel office's authority
to appoint the hearing officer. So these provisions
would take effect a day after those provisions take
effect.
4:14:46 PM
SENATOR ELTON asked if Section 6 restates current practice and
that the commission doesn't award non-economic or punitive
damages.
MS. DeYOUNG said that is her understanding. However, Johnson
versus the Alaska Department of Fish and Game makes it clear
that the court does not consider that the commission has that
authority.
SENATOR ELTON questioned why front pay is limited to not more
than one year.
MS. DeYOUNG said when a decision is issued the complainant would
be made whole up to the decision point. Front pay is speculative
and very uncommon. The strong preference of the law and the
commission is to restore the complainant to the position.
However, if that is not feasible one year is considered
sufficient time in which to find another position.
SENATOR BETTYE DAVIS asked whether a commission member wanted to
comment on the bill.
4:18:15 PM
LISA FITZPATRICK, Chair, Alaska Human Rights Commission,
informed members that the commission has been in contact with
the Governor's office. In general the commission supports SB
134, but it does have a few concerns.
Last year the bill had a two-year limit on front pay. At that
time the commission felt no limit would be better because it is
a very unique remedy and the commission wanted that remedy to be
invoked in fact-specific instances. During a committee hearing
the bill was amended to one year so instead of getting more they
got less. The provision is of concern, but it's important to
have at least some form of front pay.
A provision in Section 4 is of particular concern and it wasn't
addressed in the sectional analysis. That provision is at the
bottom of page 2. It provides that when the executive director
issues an order dismissing a complaint due to lack of
substantial evidence, the commission may review the order of
dismissal and affirm the order, remand the complaint for further
investigation or refer the complaint for conference conciliation
and persuasion if it concludes that substantial evidence
supports the complaint.
To explain why the commission opposes that language she relayed
the following historical information.
In the early 1980s, the commission had a provision in regulation
that provided the power of reconsideration of an executive
director's order to dismiss a case for lack of substantial
evidence. In recent years the commission has undergone a 20
percent funding decline and after reviewing resources and
workload, it consulted with the Department of Law and decided to
repeal the regulation providing for reconsideration.
The commission conducted a cost benefit analysis reviewing cases
in which reconsideration had been sought and determined that
about 10 percent of the complainants whose cases that were
dismissed sought reconsideration. Of those, about 1 percent were
referred back to the agency for further action. Of the 1
percent, about .14 percent resulted in a change in decision. The
benefit to complainants didn't justify the cost.
Another problem associated with reconsideration cases is that
according to case law, the commission must make a complainant's
entire file available to the complainant. Those files often
contain confidential documents from businesses submitted during
the investigation that were not meant for release to the
complainant or the general public. A commissioner would have to
review the file, which is a time consuming process and
intellectually challenging process from a legal standpoint.
Invariably commissioners have solicited help from the Department
of Law on cases in which the state was not the defendant. In
state cases, the commission would hire an independent attorney
to assist in the review.
Although one more layer of review sounds good, it is time
consuming and costly in practice. The commission is looking for
ways to reduce time and costs and it wouldn't support creating
more work at this time.
4:26:17 PM
SENATOR ELTON asked if the commission would prepare a fiscal
note if that provision remains.
MS. FITZPATRICK answered the commission submitted a fiscal note
to Governor Murkowski's Office but that office determined that
it wasn't necessary.
SENATOR ELTON expressed surprise at the decision and how large
the fiscal note was.
MS. FITZPATRICK said the cost would be from $5,000 to $6,000
annually.
SENATOR BETTYE DAVIS asked if the commission was satisfied with
the bill with the exception of Section 4. She also asked for the
number of the bill in the previous session.
MS. FITZPATRICK said the commission does support the remainder
of the bill.
MS. PAULA HALEY, Executive Director of the Alaska Human Rights
Commission, said the bill number was SB 354 and that it passed
the Senate but not the House.
SENATOR HUGGINS asked the total number of commissioners and the
geographic distribution.
MS. FITZPATRICK said the commission is composed of two
commissioners from Fairbanks, one from Soldotna, one from
Whittier, two from Anchorage and one position is vacant. All
commissions have five year staggered terms.
SENATOR HUGGINS asked Ms. Fitzpatrick if she is satisfied with
the recruitment process.
MS. FITZPATRICK said she wasn't familiar with the recruitment
procedures for commission members.
VICE-CHAIR WAGONER said recruitment is taken care of by the
Boards and Commissions office.
SENATOR ELTON asked Ms. Haley if he should be concerned with the
language on page 2, lines 7-9, which limits the commission from
re-filing a dismissed case to 180 days after a complaint is
filed.
MS. HALEY said she didn't believe that to be a problem because
when complainants withdraw, they have sought redress elsewhere
or have lost interest and aren't the best witnesses if the
commission were to pursue the complaint. The commission has re-
filed when there was a broad public policy impact in its
allegations of discrimination. She emphasized the commission is
not in the role of playing advocate for the complainants; it
acts as the advocate for the public policy of the Legislature to
prevent and eliminate discrimination. She said the commission
might re-file a complaint in a situation of a claim of rampant
sexual harassment with multiple witnesses where the original
complainant dropped the case. She acknowledged the 180-day limit
might bar the commission from re-filing such a complaint.
SENATOR ELTON asked Ms. Haley if the committee should consider
amending that provision.
MS. HALEY said the commissioners determine the policy so she
would ask them. She repeated this would be a rare occurrence,
but using the sexual assault example she acknowledged that
although a victim might be embarrassed and not want to
participate in a hearing there may be other potential witnesses
that are also victims of the workplace harassment who would come
forward. She said she would discuss the issue with the
commissioners.
4:32:40 PM
SENATOR ELTON asked Ms. Haley to let the committee staff know
the commission's preference.
4:33:08 PM
VICE-CHAIR WAGONER announced he would hold SB 132 in committee
and that it would address Section 4 at a subsequent hearing.
There being no further business to come before the committee,
Chair Wagoner adjourned the hearing at 4:33:18 PM.
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