Legislature(2003 - 2004)
03/23/2004 03:40 PM Senate STA
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 354-HUMAN RIGHTS COMMISSION PROCEDURES
CHAIR GARY STEVENS announced SB 354 to be up for consideration
and called on Ms. DeYoung.
4:40 pm
JAN DEYOUNG, Assistant Attorney General, Department of Law, said
she would provide a walk through on SB 354, which affects the
procedures of the Alaska State Commission for Human Rights. It
would affect the way cases are brought to hearing, how
procedures are applied at the commission hearings, and it would
expand the discretionary authority of the executive director in
determining which cases to bring to hearing as well as clarify
the commission's remedial authority if a human rights law
violation is found. She continued:
A key part of this bill is the expanded discretion of
the executive director to choose among the complaints
to take to hearings. Several years ago the Alaska
Supreme Court issued a decision in a case called
Department of Fish and Game versus Andre Meyer. And
the impact of that case was to require commission
staff to pursue to a hearing every complaint that the
commission, in investigation, found was supported by
substantial evidence. The effect of this ruling was to
prohibit the commission from exercising discretion in
allocating its resources to the most strong or
deserving cases.
The bill would give the executive director the power
to choose the cases to take to hearing and to dismiss
inappropriate other cases in a procedure we call an
administrative dismissal.
Section 1 would provide the complainant the authority
or the ability to withdraw complaints at any time
before the conclusion of the investigation and
settlement or conciliation procedures at the
commission. This authority is limited after an
accusation would be issued and the accusation would be
the initiation of the formal procedures going forward
to hearing.
Section 2 would add a statute of limitations to the
commission's laws. They currently have in regulation a
180 day time period after the commission of an
unlawful practice for the subject of the practice to
bring a complaint to the commission. The bill would
move that into the statute.
Section 3 addresses the investigation and conciliation
parts of the commission law and it makes some
housekeeping amendments to law to require certain
kinds of paperwork if the case is resolved at the
conciliation stage. It also makes it clear that the
commission staff have the power in that conciliation
or settlement phase of the case to compromise a claim
for damages. It's not necessary that it conciliate at
full damages or full relief for the complainant.
Section 4 of the bill is the section that sets out in
detail the expanded powers of the executive director
to choose the complaints that the staff will take to
hearing before the commission.
By expanding the discretion, the director will be able
to take such factors into account as the strength of
the evidence, the strength of an employers affirmative
defenses, the significance of the alleged violation,
the history of the complaints against the employer,
the level of cooperation of the complainant, and to
account which cases to go forward on.
The executive director would be able to
administratively dismiss the cases that don't meet
this test.
To ensure that the administrative dismissal doesn't
affect the complainant's rights to pursue other
remedies that are often available in these cases, it's
a dismissal without prejudice. Basically, the ability
to obtain the free assistance of an attorney at the
commission's office to go forward is somewhat limited,
but if that process is not available, it's not going
to limit the complainant's ability to go and get
outside counsel to pursue the same complaint in court
or in other administrative agencies, which have
remedies available.
Section 5 provides that this discretion rests
exclusively with the executive director. It's not an
issue that can be appealed to the commissioners.
Section 5 also makes a number of changes to procedures
if the case is referred for hearing. Most importantly,
it applies the Administrative Procedures Act
procedures to the commission, which provides for a
whole host of procedures that are used in many other
administrative hearing agencies in the state. It
requires the executive director to issue an accusation
after decision is made to go to hearing and it
restricts changes to that accusation upon a showing of
good cause.
Any change that adds a new charge of unlawful
discrimination must be supported by an investigator's
finding of substantial evidence. Such an amendment
would have to go back to the conciliation phase to
allow the opportunity for the employer to consider an
address to charge before it goes to a formal hearing.
This conciliation opportunity is very beneficial for
the large institutional employers because they may not
have - the individuals making decisions about the case
may not have first hand information of what actually
happened in the work place and it's a good opportunity
to review with the commission staff or whatever the
evidence and charges are and provides an opportunity
for settlement.
It also establishes the burden of proof and the burden
of proof is the standard preponderance of evidence. It
would apply both to the prima facie case and to
defenses.
Another change that it would be making would be to
allow a process similar to the motion for summary
judgment that is used in the courts so that a petition
for summary decision could be made to the commission
for those cases where there are no disputes of facts
and it's not necessary to go forward to a formal
hearing. The goal of this change would be to increase
efficiency.
Section 6 of the bill addresses the remedial powers of
the commission. It provides the commission with
authority to issue a remedy after the summary
procedure that I just described. Currently this
remedial authority follows a hearing so this would be
expanding that.
It clarifies the authority of the commission that
punitive damages and non-economic damages are not
among the remedies that may be awarded.
It also provides some specific changes to the awards
that can be ordered in employment cases and lays out,
specifically, the remedies that are available. In
addition to the common remedies that are already named
in the statute such as hiring, reinstatement, or
grading an employee with or without back pay. The bill
adds the remedy of payment of front pay, but it limits
the payment to a period of two years. It also limits
front pay awards to special circumstances. In other
words, if returning the employee to work would be
inappropriate for a number of reasons, either the
discrimination has harmed the employee so the employee
cannot work or the relationship has deteriorated so
return to the work is just not feasible.
The remedial provisions also would add a section
requiring mitigation, which means that for any damages
awarded for earnings, there must be an offset for
either actual earnings or earnings that could have
been earned if the employee made a reasonable and
diligent effort to obtain comparable employment.
Other changes to the bill are to require that if the
commission awards interest on an award, the legal
rates should be the rate that's applied - the same
rate that applies to the courts.
There are various other conforming amendments that
appear in the bill [Section 7-15].
CHAIR GARY STEVENS summarized saying that at the present time
the commission must investigate every complaint that is lodged,
regardless of merit. This bill would let the director's staff
make the decision on which cases to follow through on and which
were without foundation.
MS. DEYOUNG clarified that each complaint filed would have a
staff investigator investigate to see whether it was supported
by substantial evidence. If the investigator finds substantial
evidence, the next step would be the conciliation phase. At the
end of that phase the question would come up for the complaints
that haven't fallen out through no finding of substantial
evidence or the conclusion of conciliation for the executive
director to exercise discretion to go forward to the formal
hearing. The investigation would precede the decision.
CHAIR GARY STEVENS asked how many cases are dealt with and the
number that aren't carried beyond the conciliation phase.
MS. DEYOUNG did not have the information.
CHAIR GARY STEVENS pressed her for an estimate.
MS. DEYOUNG repeated that she didn't know.
CHAIR GARY STEVENS said, "Well, I understand what you're saying,
but why would we do this if there's likely to be no impact?"
MS. DEYOUNG said the court says there isn't any prosecutorial or
charging discretion. As resources become more limited this
discretionary use of the state's prosecutorial resources will
become more important.
PAULA HALEY, Executive Director of the Alaska State Commission
for Human Rights, stated that she didn't have data to answer the
exact question, but it would be a fairly small percentage of
cases that have a substantial evidence finding. There are a lot
of ways to close cases early on through mediation, withdrawal to
go to court, administrative dismissals, or predetermination
settlements.
It's likely that substantial evidence findings vary from 11
percent to the high teens depending on the year. During the
conciliation phase she estimates that about 50 percent of the
cases do conciliate. She continued to explain:
So we are talking about a fairly small percentage of
cases wherein under the court decision that was
referred to, we may be compelled to pursue the case to
public hearing.... The commissioners who met in Juneau
in March unanimously supported that particular
provision of the bill because they felt it important
as a matter of public policy, for the commission to be
able to take the most important cases, which clearly
have merit and important public policy concerns
forward. And maybe not the other cases which, as was
described by Ms. DeYoung, may be just on the boarder.
CHAIR GARY STEVENS wasn't sure he understood correctly and asked
what percent of cases are fully investigated.
MS. HALEY said she didn't have the data, but could provide it
later. Last year 81 percent of the voluntary mediation cases
were settled. "That can have a huge impact. Those cases are not
investigated. Subsequent to that, individuals may seek private
attorneys. One year maybe five percent would choose to go to
court because there are different remedies available. It varies
considerably from year to year," she said.
CHAIR GARY STEVENS said he appreciates that she couldn't answer
the question right then, but it's a fair question if they are
asking for the changes to how they do business. He wanted data
to back up the assertion that this would, "help contain costs
and ensure that the procedures are equitable to local
complainants and persons..." He asked her to follow up and get
the information to the committee.
MS. HALEY said, "I guess I would just say that we have to look
at those cases individually so it's very difficult for me to say
go back to the past year and say looking at this many cases, how
many under this new standard would we not have pursued because
under the current standard, we must pursue all of them. So I
think it's a bit of a difficult statistic if you actually want
to know the number of cases failing conciliation in any given
year that we would not pursue." She asked if that is really the
information he was requesting from the agency.
CHAIR GARY STEVENS said he didn't need an exact number, but
asking for an estimate is a fair request. "If you can't provide
it you can't provide it, but if you are asking us to make this
change, I think it's quite right that we ask what the impact is
going to be."
MS. HALEY said she was happy to provide that, but she wanted him
to understand that the commission didn't ask for the
legislation; it was introduced by the Governor's Office. There
are certainly positive aspects to the bill and they were working
closely with the Department of Law, but they weren't seeking the
legislation.
CHAIR GARY STEVENS said he understood. He then noted that
Senator Hoffman had joined the committee.
He asked Ms. DeYoung whether she was prepared to speak to the
fiscal note.
MS. DEYOUNG said she didn't know the status of the fiscal note.
She introduced David Jones from the Department of Law who was
also present and available for questions.
CHAIR GARY STEVENS told her the fiscal note says there wouldn't
be a fiscal impact on the Alaska Human Rights Commission and he
questioned that when the Governor's letter says the bill would
help contain costs.
He recognized Mr. Jones and asked Ms. Haley whether she had any
further testimony.
MS. HALEY responded to the fiscal note saying they worked with
the Office of the Governor to prepare the note and don't see
that there would be a negative fiscal impact. "There are aspects
of this bill that the commissioners unanimously support and some
concerns they have, but we are trying to continue our dialog
with the Department of Law to remedy some of the concerns," she
said.
SENATOR GUESS asked which sections they currently support.
MS. HALEY replied they support much of the bill. In particular
they support section 4, which would no longer require a hearing
in every case where substantial evidence is found. Cases with
clear merit or important public policy concerns would go
forward.
They are particularly concerned about the limits on the type of
relief that the commission can award. The front pay period
limitation, the standard that would require a complainant to
make both reasonable and diligent effort, the restriction for
amending complaints for good cause shown are the key points of
difference. They are talking with the Department of Law about
the limitations regarding remedial measures.
SENATOR GUESS asked if she and the commission were comfortable
with the executive director being able to dismiss a complaint
they judge isn't a benefit to the complainant, that wouldn't
represent the best use of commission resources, or would not
serve the best public interest. She thought the scope was rather
large.
MS. HALEY replied they are comfortable with that. It's in
keeping with what a number of the federal civil rights agencies
have been able to do for years. "Recognize that we are here for
the important opportunity to remedy an individual's experience
with unlawful discrimination," she said. Unlike the private
court system proceedings, they are here to support the public
policy against discrimination. They think it's important to have
the discretion and she didn't think there would be a significant
number of cases they wouldn't move on.
CHAIR GARY STEVENS asked if she was referring to page 4 line 18
relating to back and front pay when she said she was not
comfortable with the relief section.
MS. HALEY said it is primarily the limitation on front pay to
two years. The front pay remedy is used infrequently, but it can
be important.
CHAIR GARY STEVENS asked for a definition of front pay.
MS. DEYOUNG explained that back pay is the actual damage the
individual suffered when they didn't earn their pay up to the
time that the decision is made. Front pay looks to or predicts
the future. Usually the individual will be restored to
employment, receive the promotion or go to work at another
position in which case front pay would not be appropriate. Front
pay is a rare remedy, she said.
CHAIR GARY STEVENS announced that there were still questions
that needed to be addressed and he would hold SB 354 in
committee.
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