Borkowski v. Snowden, 6541
| Decision Date | 03 June 1983 |
| Docket Number | No. 6541,6541 |
| Citation | 665 P.2d 22 |
| Parties | 32 Empl. Prac. Dec. P 33,876, 12 Ed. Law Rep. 139 Rose BORKOWSKI, Appellant, v. Diana E. SNOWDEN, Chairperson of the Alaska State Commission For Human Rights, and Lower Yukon School District, Appellees. |
| Court | Alaska Supreme Court |
Mark Andrews, Alaska Legal Services Corp., Bethel, for appellant.
Janalee R. Strandberg, Hedland, Fleischer & Friedman, Anchorage, for appellee Lower Yukon School Dist.
Carolyn E. Jones, Asst. Atty. Gen., Anchorage, and Wilson L. Condon, Atty. Gen., Juneau, for appellee Diana E. Snowden.
Before BURKE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.
Appellant Rose Borkowski filed an employment discrimination complaint with the Alaska State Commission for Human Rights ("Commission"). The Commission dismissed the complaint after an investigation, finding no probable cause for the discrimination allegation. The superior court affirmed this dismissal. In her appeal before this court, Borkowski challenges three actions by the Commission: (1) the failure to provide Borkowski with the investigative record before the chairperson reviewed the investigator's findings; (2) the failure to issue detailed investigative findings; and (3) the failure to investigate possible retaliatory discrimination. For the reasons stated below, we reverse and remand. 1
In March 1978, Borkowski filed a complaint with the Commission, alleging that the Lower Yukon School District ("School District") denied her employment in the village of Emmonak during the 1977-78 school year on the basis of her race and religion. Borkowski is an Alaska Native and a Catholic.
The Commission conducted an investigation from the summer of 1978 to the spring of 1979, gathering information through interviews, interrogatories, and written documents. The investigator issued written findings in May 1980, concluding that there was no substantial evidence to support Borkowski's discrimination claim and recommending that her complaint be dismissed. These findings were approved by the Commission, which issued an order closing the case.
In July 1980, Borkowski filed an application for reconsideration by the chairperson, Appellee Diana Snowden. Borkowski also requested a copy of the investigative record. In August 1980, Snowden upheld the investigator's finding of no probable cause. Borkowski appealed to the superior court in September 1981. The court filed its memorandum decision and order in December 1981. The court held that the Commission's procedures and actions were not arbitrary or capricious and did not violate Borkowski's due process rights. 2 The court awarded attorney's fees of $500.00 each to Snowden (hereafter "Commission") and the School District, as well as $68.86 in costs to the School District. This appeal followed.
On appeal, Borkowski contends that the superior court's affirmance of the Commission's action can be reversed either under an administrative standard of review or under the due process clause of the fourteenth amendment to the United States Constitution and article I, section 7, of the Alaska Constitution.
After Borkowski's complaint was dismissed, Borkowski filed an application for reconsideration as required by former 6 AAC 30.030(a). 3 That regulation, promulgated by the Commission as authorized by AS 18.80.050, 4 stated: (Emphasis added.) Borkowski contends that she could not comply with this provision because of the conclusory findings and because the Commission refused to grant access to the investigative record. The Commission contends that Borkowski in fact complied with 6 AAC 30.030(a) because she stated with "excruciating detail" in her six and one-half page application why she believed the investigation was inadequate. These details were "sufficiently explicit to advise the chairperson of Borkowski's objections when the chairperson examine[d] the entire record pursuant to 6 AAC 30.030(b)."
The issue for us to decide, therefore, is the correct interpretation of the phrase "state specifically" in 6 AAC 30.030(a). The "substitution of judgment" test is the appropriate standard for interpreting regulations, at least when the agency interpretation does not concern administrative expertise as to either complex subject matter or fundamental policy. See Rose v. Commercial Fisheries Entry Commission, 647 P.2d 154, 161 (Alaska 1981) (); Weaver Bros., Inc. v. Alaska Transportation Commission, 588 P.2d 819, 821 (Alaska 1978) (same). In this case, the Commission did not expressly interpret what was meant by the phrase "state specifically." Therefore, we may use our independent judgment to interpret this phrase.
After a complainant submits an application for reconsideration, the chairperson is required to review the entire record and 6 AAC 30.070(b) (). The only purpose we can discern behind requiring a complainant to "state specifically the grounds upon which [an application for reconsideration] is based," 6 AAC 30.030(a), is to aid the chairperson in his or her mandatory review of the investigative record under subparagraph (b).
Unlike a civil litigant who has access to an opponent's pleadings and evidence under the liberal rules of discovery, a complaint in a discrimination investigation, such as Borkowski, has no access to the alleged discriminator's defenses or evidence, at least at the point when she submits an application for reconsideration; all she knows is what she already stated in her written complaint. In this case, Borkowski's six and one-half page application was no more than a blind attempt at challenging the evidence on which the investigator based her conclusion that there was no probable cause to the discrimination claim. If Borkowski had been given access to the investigative record, she could have pointed out inconsistencies in the defense, offered legal arguments or added new evidence in rebuttal. This would have aided the chairperson's review of the record by enabling her to focus on and review certain evidence.
We do not find convincing the arguments raised by the Commission against allowing access to the record before an internal review. The Commission contends that those complainants not represented by counsel "would not be able to integrate the information contained in the investigative record and to articulate their factual and legal arguments as skillfully as a complainant who is represented by counsel." This argument implies that providing access to the record would give an unfair advantage to the represented group; however, because this is a non-adversarial proceeding and because one complainant's case has no bearing on another's case, any advantage a complainant with legal representation would gain by reviewing the record is irrelevant. It may be true that access to the investigative record would not always result in more articulate applications; in such cases, allowing access will neither help nor hinder the chairperson's independent review of the record. If the complainant is represented by counsel or is otherwise capable of articulating his or her arguments, access to the record could only facilitate the chairperson's review.
The Commission also contends that allowing access to the record would strain its limited resources; many complainants would want the record copied at no cost, and it would take time to prepare the record, which would include removing confidential documents. The delay that would be caused by these requests would make the Commission less efficient and hamper the goal of quickly resolving disputes.
Although it is true that some additional burden will be placed on the Commission in providing access to the record, we think that the Commission's arguments are overstated. Under AS 18.80.115, enacted after Borkowski's request for consideration, investigative records must be made available to a complainant or respondent at least ten days before an administrative hearing or after a notice of failure of conciliation, or when a civil case is commenced. Because records must be made available at these times, the additional burden in making them available earlier will be minimal.
The Commission lastly contends that access to the record would "turn the request for reconsideration into a formal appellate hearing where complainant submits a copious brief that minutely challenges the investigative proceedings." Again, we disagree. If the Commission is concerned about receiving lengthy applications, it can easily establish a page limit. Furthermore, as stated earlier, we believe that a concise statement of the grounds for the application would help, rather than hinder, the chairperson's review of the record. 5
As mentioned in the previous section, Borkowski contends that she could not "state specifically" the grounds upon which her application for reconsideration was based, as required by 6 AAC 30.030(a), because the investigator's written findings "left open nearly all the essential questions of fact which underlie [her] claim." 6 Borkowski also contends that the limited findings violated due process because they did not give her adequate notice of the investigator's decision.
The regulation concerning investigative findings...
To continue reading
Request your trial
-
Easy v. State of Mont., Dept. of Natural Resources and Conservation
...Culligan Water Conditioning v. State Board of Equalization (1976), 17 Cal.3d 86, 130 Cal.Rptr. 321, 550 P.2d 593, 596; Borkowski v. Snowden (Alaska 1983), 665 P.2d 22, 27. The agency's interpretation of its rule is afforded great weight, Culligan Water, 550 P.2d at 596, and the court should......