Legislature(2003 - 2004)

04/21/2004 08:05 AM STA

Audio Topic
* first hearing in first committee of referral
+ 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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