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Alaska State Commission for Human Rights v. Anderson

Supreme Court of Alaska

August 31, 2018


          Appeal from the Superior Court of the State of Alaska, Superior Court No. 3AN-15-10346 CI Third Judicial District, Anchorage, Herman G. Walker, Jr., Judge.

          Stephen Koteff, Alaska State Commission for Human Rights, Anchorage, for Appellant.

          Michael S. Schechter, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellee.

          Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.




         May the Alaska State Commission for Human Rights limit the attendance of third parties at investigative interviews? This question arises in the context of a Commission investigation into a State employee's complaints of workplace discrimination. The Commission issued a subpoena to interview the complainant's supervisor, who refused to be interviewed unless an employer representative was also present. On the Commission's petition, the superior court issued an order to show cause why the supervisor should not be held in contempt. The supervisor moved to vacate the order and dismiss the contempt proceeding; the superior court granted the motion on the ground that the Commission lacked the legal authority to exclude third parties from its investigative interviews. The Commission appeals.

         We conclude that the statutory requirement of a confidential investigation, with its specific limits on a respondent's access to investigative materials, clearly authorizes the Commission to exclude third parties from investigative interviews. We therefore reverse the superior court's order dismissing the Commission's petition and remand for further proceedings.


         A. Background

         1. The Alaska Commission for Human Rights

         The Commission for Human Rights is responsible for enforcing Alaska's anti-discrimination laws.[1] It will accept a complaint from any "person who is aggrieved by a discriminatory practice" prohibited by Title 18, Chapter 80, and its executive director may file a complaint "when a discriminatory practice comes to [her] attention."[2] The Commission staff acts on a complaint by first conducting an informal investigation, "promptly and impartially."[3] If the investigation shows "that there is substantial evidence of an unlawful discriminatory practice," the Commission attempts to "eliminate or remedy the discriminatory practice through an agreement reached by conference, conciliation, and persuasion."[4] If no agreement is reached, the executive director may dismiss the complaint or file an accusation and refer the matter for a hearing before the Commission.[5]

         These investigations are generally confidential by statute. With limited exceptions, the Commission is prohibited from "mak[ing] public the name of a person initiating a complaint or a person alleged to have committed [a discriminatory act or practice] during an investigation."[6] "The records of investigation and information obtained by the [C]ommission during an investigation... are confidential."[7] "However, the records and information compiled by the [C]ommission during an investigation shall be available to the complainant or respondent... at least 10 days before a hearing is held under AS 18.80.120 or upon receipt by the complainant or respondent" of notice that attempts at conciliation have failed, "whichever occurs earlier."[8]

         The Commission's staff is authorized by regulation to use a variety of investigative methods. These include witness interviews, "inspection of documents and premises," and "examination of written submissions of parties and witnesses."[9] The executive director may "issue subpoenas, subpoenas duces tecum, and other process to compel the attendance of witnesses and the production of testimony, records, papers, accounts, and documents."[10] Petitions to enforce a subpoena may be filed in superior court by the Commission, any individual commissioner, or a Commission employee authorized by the Commission.[11]

         The focus of this appeal is the Commission's unwritten policy, followed for at least 27 years, [12] barring third parties from investigative interviews with "certain limited exceptions." As the Commission describes its policy, third parties may be present if the interviewee is "the respondent named in the complaint, or is a member of the respondent's 'control group' management, or has managerial responsibility.'" The Commission also allows witnesses to be accompanied by their own attorneys and, if necessary, an interpreter or a guardian.

         2. The investigation

         The investigation at issue began when an employee filed two complaints against her employer, the State of Alaska Department of Health and Social Services (DHSS), in August 2014 and February 2015. The Commission opened an investigation headed by investigator Patricia Watts. DHSS responded to the complaints with a letter from Greta Jones, [13] an Equal Employment Opportunity (EEO) program manager for the State. Jones's letter identified Don Lynn Anderson as the complainant's supervisor.

         When Watts called Anderson to schedule an interview, Anderson responded by email directing Watts to Jones, the EEO manager. Watts replied that she was "within correct procedure to schedule an interview directly with" Anderson and suggested some dates. According to a memorandum drafted by Watts, Jones called a few days later to inform her that Anderson (and another witness whose involvement is not at issue here) had "managerial status that entitled [Jones] to attend the interviews." Watts disputed this: she told Jones that Anderson was "a supervisor but not a high-level manager." Jones also said that DHSS would require a subpoena for the witness interviews, and Watts replied that she would be requesting subpoenas.

         Paula Haley, then-executive director of the Commission, issued an administrative subpoena directing Anderson "to appear at the offices of [the Commission]... to provide testimony" on September 18. On September 14 Jones called Watts "in response to the subpoena" to say that Anderson wanted her to be present at the interview. Watts responded "that the Commission ha[d] to address" whether Jones could attend but agreed to discuss rescheduling. In a letter a few days later Watts confirmed a new date for Anderson's interview, October 6, and informed Jones, "The Commission will not allow anyone else to be present during my interview of Ms. Anderson except for her attorney, if she retains counsel."

         Jones and the Attorney General's Office both wrote the Commission, challenging its authority to exclude Jones from Anderson's interview. In a letter to Jones, the Commission's attorney, Stephen Koteff, wrote that the Commission did indeed have the authority to "set reasonable conditions on its interviews of witnesses" and that witnesses "are not entitled to representation... absent some affirmative right conferred by law." Watts faxed a letter to Anderson the same day, informing her that Jones could not be present at the interview and that the Commission might "seek enforcement of the subpoena in court" if Anderson "refuse[d] to answer or participate in the interview under these circumstances."

         3. The interview

         On October 6 Jones and Anderson called Watts to initiate the telephone interview. Jones recorded the call.[14] Watts told Anderson that "[t]he Commission's statutes require that the Commission's investigations be conducted confidentially. That means third parties may not be present during witness interviews, third parties such as Ms. [Jones]." Watts then asked whether Anderson was ready to "proceed with the interview" without Jones's presence. Anderson replied that she would like Jones present. Watts asked again. Jones interjected that Anderson "is very willing to answer any questions and I'm just here to support her," and Anderson said she felt the same way. Watts asked a third time whether Anderson was willing to be interviewed alone, and Anderson replied, "No." Watts informed Anderson that she risked being found in contempt, and Anderson said she understood. When asked once more if she would be willing to be interviewed without Jones present, Anderson said she "would like support." Watts reiterated that Anderson faced a contempt proceeding and offered her a last chance to answer questions without Jones present. Anderson said, "I don't know how to answer that because I am willing to answer the questions." But she confirmed once more that she would answer questions only with Jones present, and Watts ended the interview.

         After the call ended - as Watts described it in a contemporaneous email - Anderson informed Watts that she would be willing to be interviewed alone after all but soon changed her mind, admitting that she had "gone back and forth on having [Jones] there with me when we talk" but that ultimately "I find I do want her there with me." Watts reiterated the Commission's position and asked Anderson to call her if she changed her mind again.

         B. Proceedings

         The Commission filed a petition for a show cause hearing in the superior court. Based on the petition and the accompanying affidavit of investigations director Gay, the superior court issued an order to show cause. Anderson, represented by the Attorney General's Office, filed a motion to vacate the order to show cause and dismiss the contempt proceedings.[15] The court held a hearing on June 14, 2016, and, following oral argument, granted Anderson's motion. The superior court issued what it described as a "very narrow" ruling that the Commission did "not [meet] its burden of proof that it ha[d] the authority to require Ms. Anderson to appear for an interview alone in this particular case." In support of its ruling the court noted the lack of a written regulation, inconsistencies in how the Commission explained its policy to Anderson, [16] and the absence of any limiting language in the subpoena itself.

         The Commission filed this appeal.


         "[A] superior court's decision not to hold a party in contempt is committed to the court's discretion and is one to which we will accord considerable deference."[17] However, we review questions of law de novo and apply our independent judgment to "adopt the rule of law that is most persuasive in light of precedent, reason, and policy."[18] When we review an agency's statutory interpretation in an area beyond its expertise, we use the substitution of judgment standard, applying our independent judgment while "giv[ing] due deliberative weight 'to what the agency has done, especially where the agency interpretation is longstanding.' "[19]

         "Whether an agency action is a 'regulation' requiring rulemaking under the Alaska Administrative Procedure Act is a question of law that does not involve agency expertise," and we review such determinations using our independent judgment.[20]


         The Commission's position is that it has the authority to exclude third parties from its investigative interviews and that it has exercised this authority for decades pursuant to an unwritten policy. Anderson counters that an unwritten policy is insufficient and that the Commission's policy has no support in statute or regulation. She also argues that the superior court did not abuse its discretion by vacating the contempt order when the face of the subpoena contained no restrictions on third-party attendance and the Commission's explanations of its policy were inconsistent. We conclude, however, that the confidentiality of the Commission's investigations, mandated by statute, necessarily entails the authority to conduct confidential interviews. We also hold that the subpoena was valid and that it was an abuse of discretion to vacate the order to show cause and dismiss the contempt proceeding.

         A. The Confidentiality Of Commission Investigations Necessarily Implies The Authority To Exclude Third Parties From Witness Interviews.

         Administrative agencies are created by statute "and therefore must find within the statute the authority for the exercise of any power they claim."[21] The mandate of AS 18.80.115-that investigations be confidential - contains by strong implication the authority the Commission needs to limit third-party attendance at investigative interviews. The statute, entitled "Confidential information," provides that "[t]he records of investigation and information obtained by the [C]ommission during an investigation ... are confidential and may not be made available by the [C]ommission for inspection by the public."[22] The statute further states that information collected by the Commission "during an investigation shall be available to the complainant or respondent" under two circumstances: (1) ten days before a hearing or after notice that conciliation has failed; or (2) "in accordance with the rules of discovery if an action relating to the charge is commenced in court."[23] An implementing regulation states that "[r]ecords of investigation and information obtained during an investigation or inquiry are confidential and may not be disclosed except in accordance with AS 1 8.80.115."[24]

         Alaska Statute 18.80.115 was added to Title 18 nearly 20 years after the Commission was created.[25] The bill proposing the amendment initially contained no provision at all that would give the complainant and the respondent access to the Commission's investigative records. A House committee suggested adding the current language, providing access under limited circumstances, [26] and that amendment was adopted.[27] The Commission argues that this amendment would have served little purpose if the respondent was meant to have contemporaneous access to the investigation by monitoring witness interviews as they occurred. Whatever the purpose of the amendment, we agree that the current statutory language supports only an intent that the process be confidential as to the respondent as well as to the public at large; the respondent was given access to investigative materials, but only under the circumstances specified in the law.

         This construction advances the broad purpose of Title 18, Chapter 80: "the elimination and prevention of discrimination[] in many facets of our society."[28] "The Commission and its director are charged with broad responsibilities ... to receive and investigate complaints of illegal discrimination."[29] To that end, the Commission has a "full panoply of administrative powers, including the authority to investigate complaints."[30] In recognizing the importance of the Commission's duty to impartially investigate discrimination complaints, we have noted repeatedly that "the legislature intended to put as many 'teeth' into [AS 18.80] as possible."[31]

         It is reasonable to assume that an investigation that depends on the candor and ease of witnesses in informal interviews would suffer if the Commission could not exclude third parties from those interviews - particularly employer representatives in cases of workplace discrimination. A contrary interpretation could seriously damage the mandate of confidentiality: While AS 18.80.115 prohibits the Commission from disclosing investigative material, it imposes no such prohibitions on private parties who have ongoing access to the same material. A witness's candor could be chilled not only because her supervisor is sitting in the chair next to her and listening to every word, but also because the supervisor is free to tell anyone else what the witness tells the interviewer.

         Maryland's highest court discussed this issue when it reversed the denial of an injunction excluding the employer from investigative interviews, observing that the employer's presence and demand to have the interviews recorded would "likely have the effect of intimidating or influencing witnesses and frustrating the truth-seeking and confidential nature of the investigative process."[32] The court elaborated that "without an unimpeded fact-finding process, the Commission would be precluded from gathering the type of evidence that would normally be necessary to file a... complaint, and hence, the enforcement authority of the Commission would be inherently limited."[33] We agree. Without implying anything negative about the participants' motives in this case, we must recognize ...

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