Legislature(2005 - 2006)CAPITOL 106
05/03/2005 08:00 AM House STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| HB277 | |
| HB283 | |
| HB189 | |
| SB132 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 277 | TELECONFERENCED | |
| += | HB 283 | TELECONFERENCED | |
| + | HB 189 | TELECONFERENCED | |
| + | SB 132 | TELECONFERENCED | |
| + | HB 28 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 132-HUMAN RIGHTS COMMISSION [Contains brief mention of HB 202.] 9:39:25 AM CHAIR SEATON announced that the last order of business was SENATE BILL NO. 132(efd fld), "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; and making conforming amendments." 9:39:31 AM SCOTT NORDSTRAND, Deputy Attorney General (AG), Civil Division, Office of the Attorney General, Department of Law, introduced SB 132, which he said is identical to HB 202. He stated that the intent of the bill is to "enhance the effectiveness of the Alaska State Commission for Human Rights ... (ASCHR), 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." The bill would: improve commission procedures, enhance the fairness of commission procedures, clarify what the commission may award to remedy unlawful discrimination, and make some housekeeping changes. MR. NORDSTRAND said the bill would enhance the commission's effectiveness by allowing it to be more selective about the cases it prosecutes. The executive director would be authorized to choose the complaints of unlawful discrimination that merit pursuit, based on: strength of evidence, severity of violation, employer's history before the commission, and complaint's value in establishing precedence. MR. NORDSTRAND mentioned the Department of Fish & Game v. Meyer, a case which required the director to take to hearing any complaints supported by substantial evidence of unlawful discrimination, without regard to such factors as the weakness of the evidence or the strength of the employer's affirmative offenses. He indicated that SB 132 would reverse the effect of that case. The bill would allow a complainant to withdraw a complaint before the accusation is served, but would preserve the executive director's right to file a complaint on his/her own if he/she disagrees with the complainant's withdrawal. The bill would also improve commission procedures. It would permit agreements during the prehearing - or conciliation phase, as it's called in statute - to compromise damaged claims. 9:42:16 AM MR. NORDSTRAND reviewed the process undergone when a person believes he/she has been discriminated against. He explained that once there is a finding of substantial evidence, that's when the phase called conciliation begins, which is an attempt to settle a case amicably between parties. If there is a failure of conciliation, then the executive director tells the commission that it is necessary to go forward with formal procedures. He offered further details, including the steps of a discovery process and a hearing before a hearing examiner. He reiterated the effect that the Department of Fish & Game v. Meyer case had. He noted that the claims under the Human Rights Act can either be brought to the commission or to the superior court, thus, if someone brings a claim, he/she would have to be subjected to the test of summary judgment. He added, "Now, as it stands, in the Human Rights Commission, you don't." [CHAIR SEATON turned the gavel over to Vice Chair Gatto.] 9:47:36 AM REPRESENTATIVE GRUENBERG spoke of the nuances between the civil and prosecutorial aspects of the Human Rights Act. He asked Mr. Nordstrand to provide the committee with a marked up copy of the aforementioned case. 9:50:20 AM MR. NORDSTRAND summarized that the intent of the bill is to give the commission the ability to direct its resources in the best way to alleviate the greatest amount of discrimination possible. It would also allow a procedure to be followed if an investigation is lacking in substantial evidence, which would serve as a check on the executive director's authority. He offered an example. He said the commission has concerns about that because of the associated workload. 9:51:43 AM VICE CHAIR GATTO said no one knows what the term "substantial" means. He stated, "We're just trying to figure out a way to keep the door from swinging open every time somebody nudges it." He opined that it's impossible to reach a standard where any possibility of discrimination can be denied. 9:52:23 AM MR. NORDSTRAND said he thinks that's true. He continued as follows: What we've essentially done is recognized that we can't really fix the substantial evidence problem. ... We could try to come up with new words, but new words wouldn't make it clearer. So, what we've done is we've said, "If there's substantial evidence - this lowest standard of evidence - the door can swing open, but there are reasons why the executive director may choose not to go forward anyway." And we've listed those criteria ...: If [there is] substantial evidence, okay, go forward. But the executive director could say, for example, "This person's refusal to settle for a fair sum is unreasonable. And we're not going to use the state's resources to go any further when ... a fair settlement is $5,000 and they say, 'I ... won't settle for less than [$50,000].'" As the system stands now, ... it's not costing that person to go forward .... So, there's sort of a disincentive to settle, in some sense, because usually the farther along in the process you go, the higher the settlement offer gets, because the cost associated with going forward increased. And so, this is a recognition that as a check to that kind of motivation, the executive director has to be a fair judge of what should go forward and what ... [shouldn't]. MR. NORDSTRAND directed attention to a handout in the committee packet that shows a comparison of SB 132 with last year's Senate Bill 354. 9:54:27 AM REPRESENTATIVE GRUENBERG noted that he, Chair Seaton, and Representative Lynn spent a fair amount of time on [Senate Bill 354]. 9:54:48 AM MR. NORDSTRAND stated that, in addition to the procedural changes, the bill also would enhance the fairness of the commission's procedures by requiring "charges in the accusation." He explained that the complaint is what the person brings to the commission and signs. The accusation happens after that; it clarifies the charge against the person. The bill would require that charges in the accusation - that the executive director issues after deciding to pursue a complaint to hearing - be based upon an investigators determination of substantial evidence. He offered further details. 9:56:46 AM VICE CHAIR GATTO asked that Mr. Nordstrand come back on Thursday. [SB 132 was heard and held.]
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