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 The commission repealed the regulation allowing review because of dwindling resources.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.