Legislature(2003 - 2004)
04/21/2004 08:05 AM House STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 525-HUMAN RIGHTS COMMISSION PROCEDURES Number 0495 CHAIR WEYHRAUCH announced that the next order of business was HOUSE BILL NO. 525, "An Act relating to complaints filed with, and investigations, hearings, and orders of, the State Commission for Human Rights; making conforming amendments; and providing for an effective date." CHAIR WEYHRAUCH announced that before the committee, as a work draft, was Version 23-GH2024\D, Bullock, 4/19/04. Number 0472 DAVID W. MARQUEZ, Chief Assistant Attorney General, Legislation & Regulations Section, Office of the Attorney General, Department of Law, presented HB 525 on behalf of the House Rules Committee, sponsor by request of the governor. He read portions from his written testimony [included in the committee packet] as follows: We believe that ... HB 525 enhances the effectiveness of the Alaska State Commission for Human Rights by allowing the commission to evaluate complaints of unlawful discrimination and to allocate its resources to prosecuting those complaints that will best serve the commission's goal of eliminating unlawful discrimination. MR. MARQUEZ stated that other benefits of HB 525 would be to improve commission procedures, enhance the fairness of the commission's procedures, clarify the remedies that the commission may award to remedy unlawful discrimination, and make certain housekeeping changes. MR. MARQUEZ noted that, presently, the commission has been bogged down because of a ruling by the Alaska Supreme Court in the Department of Fish & Game v. Meyer. He said the case requires the commission to take to hearing any complaint supported by substantial evidence of unlawful discrimination, without regard to such factors as weakness of the evidence or the strength of an employer's permanent defenses. He explained that, to overcome that burden, "you would have to show that it's completely lacking in merit." The result has been that the commission takes every complaint and doesn't have any real discretion in deciding which cases to take forward. MR. MARQUEZ stated that HB 525 would allow the executive director [of the commission] to choose the complaints of unlawful discrimination that merit pursuit, based on factors such as strength of evidence, severity of alleged violation, employer's history before the commission, or the complaint's value in establishing precedent. The proposed legislation would allow the commission to better marshal its resources towards cases it feels are more important. Mr. Marquez indicated that the commission is in favor of this aspect of the bill. MR. MARQUEZ listed the ways in which HB 525 would improve commission procedures. He said the bill would: permit agreements during the prehearing conciliation phase to compromise damage claims; require that agreements be reduced to writing, and provide that agreements are enforceable as commission orders; require the commission to follow procedures in Administrative Procedure Act; and allow the commission to issue a summary decision, which is similar to a motion for summary judgment in the courts. He added that if the facts are not disputed, the commission can make a ruling without providing a full hearing. MR. MARQUEZ listed the ways in which HB 525 would enhance commission procedures. He said the bill would: require the charges in the accusation that the executive director issues after deciding to pursue a complaint to hearing be based on the investigator's determination of substantial evidence; require that substantial evidence support any new charges of unlawful discrimination that are added when the accusation is amended; require that respondent have an opportunity to address all charges informally before being required to defend them in a formal hearing; and tie the rate of interest awarded by commission to legal rate in AS 09.30.070, bringing the commission into conformity with other administrative agencies and the courts, in terms of rate of interest. MR. MARQUEZ, in regard to the remedies that the commission may award to remedy unlawful discrimination, stated the following: I think that it's important to note that this is not the sole avenue for relief that a complainant would have. The complainant, of course, can, as long as they're within the statute of limitations, pursue a remedy in court, and a court can fashion many remedies that are not available under court decision to the Alaska State Commission for Human Rights. This is a system that has been instituted where people can go to the commission for human rights and an advocate can be assigned to them and take their case forward. But, certainly at any time they can go to the court. And legally, because of this procedure that's set up, ... it's also reasonable to limit the remedies that may be available to someone [who] goes before the [commission], and delineating the remedies will help assure certainty for the parties so that they'll know what's ahead of them. ... The remedies that are available are very clear. What we have done in drafting this legislation is to go through the court decisions and to set forthright in the statute what the courts have decided for the commission .... MR. MARQUEZ read from his written testimony the ways HB 525 would clarify the remedies that the commission may award. He said it would: prohibit non-economic or punitive damages; limit remedies ... to restoration of actual benefits lost; allow the award of front pay [for a period of up to one year if a return to work is impossible because no vacancy exists, the employer's unlawful discrimination made the employee incapable of work, or the working environment deteriorated intolerable.] [The above bracketed testimony was not on tape, but was reconstructed from Mr. Marquez's written testimony.] TAPE 04-66, SIDE A Number 0001 MR. MARQUEZ concluded with the reasons that HB 525 would clarify the remedies that the commission may award. He said it would require any order to pay wages to be reduced by the amount the employee should be able to earn with a "reasonably diligent" effort. In regard to the housekeeping changes effected by HB 520, he noted that the bill would incorporate the current regulation's 180-day limitation period for filing a complaint. Number 00057 REPRESENTATIVE HOLM stated he is concerned that someone can make an accusation and is instantaneously put into an adversarial position where he/she has to provide for an attorney for defense against accusation, without any kind of Rule 82 compensation - any kind of ability that if the commission is wrong and brought a frivolous case to the person, he/she would still have to pay the expense of the defense. He said he is talking about small business. Because of the standard that provides that [the case] must be completely lacking in standard, all cases are taken. He said it is only reasonable that the commission should have to pay out of its own budget for cases it loses, to help bring the small business back into a modicum of "where they started from." REPRESENTATIVE HOLM explained that he is trying to ensure that the commission has "a thumb on top of it that keeps it from just taking on any frivolous case and putting the small business people in the state under a great amount of undue cost." He indicated that this is what has been going on, to date. Number 0257 MR. MARQUEZ responded that he thinks adopting [HB 525] would go a long way toward solving the problem, because it would eliminate the need for the commission to take every case forward. It would have the discretion to drop some cases that it felt lacked merit or would not provide the state's best interest in pursuing the claim forward. REPRESENTATIVE HOLM said he appreciates that, but he would "like to have another side board." He asked Mr. Marquez to comment on whether or not he thinks an additional sideboard would be beneficial. MR. MARQUEZ noted that, currently, the commission has the power, under AS 18.80.130 (e), to order the payment of reasonable expenses, including reasonable attorney's fees, to a private party before the commission, when the commission, in its discretion, determines the allowance is appropriate. He offered his understanding that currently the commission does not use its discretion to award attorneys' fees to the private parties that come as defendants before the commission. He revealed that a regulation exists, 6 AAC 30.492 (b), which read: An award of attorney's fees and costs will be made against a complainant upon a showing that he or she pursued an action not authorized by the executive director that was frivolous, unreasonable, or groundless, or that an action authorized by the executive director was based upon information furnished in bad faith by complainant. Number 0453 REPRESENTATIVE HOLM stated that he wants the pressure on the commission to do its footwork first so there's no undue pressure on small businesses to defend themselves. Furthermore, if the commission pursues a case and looses, Representative Holm stated, the cost of the case should come out of the commission's budget. MR. MARQUEZ offered his belief that the mechanism that Representative Holm is describing would require a statutory change; the current statute and regulations would not ensure that the commission would award attorney's fees in the kind of situations that Representative Holm is describing. Number 0649 LISA FITZPATRICK, Chair, Alaska Human Rights Commission, told the committee members that the commission has a "geographical representation," with 7 members. She indicated that the commission has grave concerns regarding the provisions regarding the remedies, of which Mr. Marquez previously spoke. She stated her concern that the remedies would take away the tools the commission presently has that make it an effective commission. MS. FITZPATRICK offered her understanding that the commission operates on a budget of approximately $1.4 million. Presently, the staff is comprised of 15 individuals: ten investigators, one director, two supervisors, and two support staff members. She noted that, while there are thousands of inquiries that come to the door, the actual number of cases that get into a file status "where they begin to be worked upon" is between 300-500 a year. She continued as follows: Of those cases, the way that they are handled is that when a complaint that, at least on its face, has merit - and that is it would have to allege (indisc.) inventory process (indisc.) hit the parameters of the statute - it's assigned to an investigator, and the investigator (indisc.) an investigation to determine whether or not there is initial preferences referring to the standard of substantial evidence to determine whether or not the commission will proceed with the matter further Now, at every step along the way, the (indisc.) commission and the individual that (indisc.) at this point have the ability to either mediate the case or, at some form of (indisc.) settle the case. Frankly, that happens with great frequency. I would think that probably the (indisc.) of cases are resolved through ... CHAIR WEYHRAUCH asked Ms. Fitzgerald to try to speak more clearly. MS. FITZGERALD said she was using a speakerphone at a Legislative Information Office (LIO), but she couldn't tell what the trouble with the sound was. CHAIR WEYHRAUCH asked Ms. Fitzgerald if she would submit her testimony in writing. [HB 525 was heard and held.]
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