Legislature(2005 - 2006)BUTROVICH 205

03/17/2005 03:30 PM STATE AFFAIRS


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ SB 132 HUMAN RIGHTS COMMISSION TELECONFERENCED
Heard & Held
*+ SB 134 POLICE INVESTIGATION STANDARDS/ARRESTS TELECONFERENCED
Heard & Held
*+ SJR 8 CONST. AM: PERMANENT FUND P.O.M.V. TELECONFERENCED
Scheduled But Not Heard
+ Bills Previously Heard/Scheduled 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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