Legislature(2005 - 2006)BELTZ 211

03/29/2005 03:30 PM Senate STATE AFFAIRS


Download Mp3. <- Right click and save file as

* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ SB 26 FELONS' RIGHT TO VOTE TELECONFERENCED
Heard & Held
*+ SB 59 PFD ALLOWABLE ABSENCE FOR DIPLOMATS TELECONFERENCED
Heard & Held
+ HJR 8 SUPPORTING ALASKA ARMY NATL. GUARD TELECONFERENCED
Moved HJR 8 Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
= SB 132 HUMAN RIGHTS COMMISSION
Moved SB 132 Out of Committee
= SB 143 STATE INFO SYSTEM PLAN: LEGISLATURE
Moved CSSB 143(STA) Out of Committee
                                                                                                                                
                 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.                                                                                    

Document Name Date/Time Subjects