Legislature(2005 - 2006)BELTZ 211
03/29/2005 03:30 PM Senate STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| SB59 | |
| SB132 | |
| SB143 | |
| SB26 | |
| HJR8 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 26 | TELECONFERENCED | |
| *+ | SB 59 | TELECONFERENCED | |
| + | HJR 8 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 132 | ||
| = | SB 143 | ||
SB 132-HUMAN RIGHTS COMMISSION
4:22:01 PM
CHAIR GENE THERRIAULT announced SB 132 to be up for
consideration.
DARWIN PETERSON, Deputy Legislative Director, Office of the
Governor, said the previous hearing ended with discussion on
Section 4, which the Human Rights Commission did not support.
The Administration's position is that Section 4 is a legitimate
provision in the legislation.
He pointed out that the bill says that the commission may use
its discretion to review the executive director's order of
dismissal. By regulation the commission used to do that. They
stopped because they agreed with the executive director most of
the time.
The Administration does not intend to require the commission to
review all the appeals or dismissals by the executive director.
However, the commission should have the authority to supervise
its own staff and if it happens to disagree, it could review
that dismissal by the executive director. If the commission
doesn't have that authority there really isn't any need for a
commission. The executive director could do all the work.
The language was drafted to give the commission flexibility. The
Administration is open to suggestion, he said.
4:24:18 PM
CHAIR THERRIAULT verified the language is permissive.
MR. PETERSON answered yes.
PAULA HALEY, Executive Director, Human Rights Commission,
participated via teleconference to say she was available to
answer questions. Commissioner Grace Merkes had intended to be
available, but was attending a funeral.
CHAIR THERRIAULT said he is baffled why the commission would
oppose the permissive language in Section 4.
MS. HALEY replied her understanding is that the concept of
review isn't the concern. The commission repealed the regulation
allowing review because of dwindling resources. She understood
Chair Fitzpatrick to say that the concern relates to putting
into statute what was previously in regulation because that
essentially creates a right. The reality is that people will
apply for reviews and that would cost the commission a
considerable amount of time and effort.
The Alaska Supreme Court has ruled that when review is made
available before the Human Right's Commission, a complainant who
believes that the staff has made a decision error has a right to
request the complaint file in its entirety in order to craft a
request for review. This entails making a copy of the file and
redacting any documents that would not be disclosed.
Furthermore, if a complainant or a complainant's attorney crafts
a request for review the commissioners feel they would need
legal assistance in sorting some of the more challenging issues.
The commission respects the Governor's point of view that it
could be a discretionary review, but the commissioners have
clearly said that they would need to review the requests to know
whether or not to grant the request.
SENATOR THOMAS WAGONER agreed that it's a matter of redundancy
and could be a waste of resources. However, if that could be
avoided he would have no problem with the provision.
CHAIR THERRIAULT asked her to respond to the assertion that
without the discretion to review there isn't anything left for
the commission to do.
MS. HALEY said the commissioners' most important role and
function is their quasi-judicial role. When the staff finds
substantial evidence of discrimination, which warrants moving to
the next stage of investigation, there is a public hearing. The
commissioners render the ultimate decision following that public
hearing. The commissioners are the judges and the staff presents
the case with the complainant and/or an attorney on the other
side.
The commissioners also have general oversight of the agency.
Because of the agencies unique role in government they direct
the activities ranging from regulation change to general policy
decisions. Typically it is the commissioners who articulate
positions on legislation.
4:32:38 PM
CHAIR THERRIAULT called on Ms. DeYoung on teleconference.
JAN DeYOUNG, Assistant Attorney General, Department of Law
(DOL), said she would give some background on the language and
why it was added.
The proposed subsection (a) in Section 4 in AS 18.80.112 is
included because the law is silent on what happens in the event
of a finding of no substantial evidence in support of the
complaint of discrimination by the assigned investigator. The
subject was addressed in regulation but not in statute.
Subsection (a) does the obvious; if there is no substantial
evidence of unlawful discrimination the executive director
dismisses the complaint. As Ms. Haley stated, the chairperson
formerly had the power to review decisions. That regulation was
repealed because the commission apparently believed it did not
want to exercise that authority.
The idea was not to preclude review or to compel a procedure. It
was to provide the commission discretion. By having the statute
drafted this way a future commission could adopt a review
procedure if it chose to do so.
CHAIR THERRIAULT asked how she would respond to the issue that
to decide not to review would entail going through a process
that would expend time and resources.
MS. DeYOUNG responded, "There's nothing to compel the commission
to undertake the expense of the review." It could adopt a
regulation to that effect. The intent was not to change the law
it was to address a silence in the law.
CHAIR THERRIAULT asked if it would operate in the same way as an
appeal to the court system. An individual could appeal a
decision, but the request could be turned down without any
reason.
MS. DeYOUNG said it would be similar to what is referred to as a
petition to review and the court could decide in a summary
fashion to not take up the case.
4:37:47 PM
CHAIR THERRIAULT ascertained there was no further testimony and
closed the public hearing. He mentioned two zero fiscal notes.
SENATOR WAGONER stated that he talked to Commissioner Grace
Merkes and she told him that the commissioners feel that
additional funds would be necessary if the provision in Section
4 were included. He recommended that the Finance Committee
review the provision closely.
CHAIR THERRIAULT asked Mr. Peterson if he had discussed the
potential fiscal impact with the commission.
MR. PETERSON replied the Human Rights Commission submitted a
request for funds because of Section 4. The Office of Management
and Budget disagreed because the Administration testified that
the intent with Section 4 is that it would be permissive and
open. He said, "The commission is able to adopt regulations to
not conduct those reviews. If they do then the Governor's Office
can take care of any additional funds that they would need
through the normal budget process. ... In FY 07."
4:40:16 PM
SENATOR WAGONER motioned to report SB 132 from committee with
individual recommendations and attached fiscal notes.
Seeing no objection, Chair Therriault announced SB 132 would be
forwarded to the Senate Judiciary Committee.
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