MINUTES OF THE ASSEMBLY COMMITTEE ON ELECTIONS AND PROCEDURES Sixty-eighth Session April 11, 1995 The Committee on Elections and Procedures was called to order at 3:30 p.m., on Tuesday, April 11, 1995, Chairman Giunchigliani presiding in Room 331 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Mr. Jack D. Close, Chairman Ms. Chris Giunchigliani, Chairman Mrs. Joan A. Lambert, Vice Chairman Mr. Richard Perkins, Vice Chairman Mr. Joseph E. Dini, Jr. Mrs. Jan Evans Mr. Thomas A. Fettic Mrs. Vivian L. Freeman Mr. David E. Humke Mrs. Jan Monaghan Mr. Bob Price COMMITTEE MEMBERS EXCUSED: Mr. Dennis L. Allard GUEST LEGISLATORS PRESENT: Assemblywoman Barbara E. Buckley, District No. 8 Assemblywoman Dianne Steel, District No. 16 STAFF MEMBERS PRESENT: Mr. Lorne J. Malkiewich, Director Mr. Robert Erickson, Research Director OTHERS PRESENT: Mr. Jim Hulse/Chairman of the Board, Common Cause Ms. Ande Engleman/Nevada Press Association Ms. Lucille Lusk/Citizen, representing herself Chairman Giunchigliani asked for a motion from committee for introduction of a resolution regarding reliable low cost electric power requested by Assemblyman Neighbors and Assemblywoman Braunlin. See (Exhibit C). ASSEMBLYWOMAN FREEMAN MOVED FOR COMMITTEE INTRODUCTION OF THE RESOLUTION. ASSEMBLYMAN PERKINS SECONDED THE MOTION. Chairman Giunchigliani asked for discussion. There was none. THE MOTION CARRIED. ASSEMBLYWOMAN LAMBERT ABSTAINED. Assemblywoman Lambert disclosed she abstained from voting because her husband is employed by a utility company. Assemblyman Price informed committee Mr. John Koontz, a long time Nevada Secretary of State, had died and Mr. Price thought it would be appropriate to do a resolution in his memory on behalf of his family. Chairman Giunchigliani declared if there was no objection from committee, she would request Mr. Price to pursue a Bill Draft Request. There was no objection. ASSEMBLY BILL 412 - Revises provisions governing contests of elections of certain state officers. Assemblywoman Barbara E. Buckley, District No. 8, prime sponsor of A. B. 412, explained A.B. 412 corrected existing Nevada law which deprives a legislator of his/her seat and voters of their representative solely because the candidate rejected by the voters decides to challenge the winner. Under current law if a candidate feels he/she lost the election due to alleged impropriety, the candidate can file a contest of that election, and a certificate of election for the candidate recorded as receiving the highest number of votes is then withheld. A.B. 412 highlighted that a representative was not deprived of his/her seat until there is a finding of impropriety. As a result of the publicity the last contest received, contests could be filed without any basis in fact, and representatives would be denied their seats by an allegation of impropriety, she added. The majority of states have adopted a different system, she explained. They do not withhold the certificate of election by the filing of a challenge. A certificate of election is issued, a hearing is held, much the way it was held in Nevada, and the Assembly themselves decide whether there is any validity to the challenge. If there is no validity, the person keeps his/her seat. If there is validity to the challenge, the certificate of election is then declared "void" and issued to the one who should have been seated. Ms. Buckley explained she brought forth A.B. 412 because it violated the innocent until proven guilty premise. Ms. Buckley further explained A.B. 412 allows the issuance of the certificate of election instead of it being withheld upon the filing of a contest. A.B. 412 also amends Section 6 N.R.S. 218.100 to make it clear that the person receiving the highest number of votes would be included in the role of the Assembly and participate in organizational purposes. Chairman Giunchigliani clarified A.B. 412, and Assemblywoman Buckley stated it did not change the roles of any individual in the process. It only addressed the certificate of election issue and when it should be issued and when it should be withheld. A.B. 412 only addresses the one issue faced this session, she said. Assemblyman Price pointed out on page 2, lines 12 and 13 existing language, "A certificate of election must be executed by the governor ...," and after research during this contest, he questioned the relevance and the Constitutional relevance of the governor issuing a certificate that on the face indicates what he is saying, "You are an assemblyman. Here is your certificate." Assemblyman Price was not sure he thought the certificate should be a valid part of whether or not a legislator was an elected official. Assemblywoman Buckley, replying to Assemblyman Price's statement, stated that it was a legitimate Constitutional issue, and she believed the issue would be addressed in the later bill. It would conflict with the Constitutional provision that the Assembly shall be the sole judge of the qualifications and elections of its members and at what point does the governor signing a certificate of election or the secretary of state preparing the roll interfere with that Constitutional right and separation of powers issue. She thought the answer which L.C.B. brought forth during discussion of the issue during the contest was that to the extent it was ceremonial, it was permissive, but when it strayed across that line and actually became substantive, it indeed was a Constitutional violation. Chairman Giunchigliani said in some way that also would clarify that it was ceremonial, but the other bill draft clarified the language. Assemblywoman Buckley admitted it could be clearer, and the next bill which addresses eight issues brought up during that time, clarifies. Assemblyman Price suggested a word could be added on line 15, "...shall execute a ceremonial certificate of election...." Assemblywoman Buckley agreed it would be helpful in the other bill to more clearly define the role of the governor and secretary of state to prevent any questions which could arise in the future. Assemblyman Close noted A.B. 412 did not include timing or time tables and asked if Ms. Buckley's intent was to leave timing up to the other procedures and policies. Assemblywoman Buckley said, "yes", and there were a number of discussions about the fact that the hearings should be held very quickly to have as little disruption as possible in the session. That, too, was addressed in the other bill. Assemblyman Fettic questioned who clarified legislators were elected or not elected. Assemblywoman Buckley recalled the Election Department transmitted it to the Secretary of State and County Commission. Chairman Giunchigliani interjected, "The Election Department canvasses, then it goes to the County Commission who may canvas or may do an additional check. Then they actually make the recommendation that everyone in this election is seated. They even transmit that to the Secretary of State." Assemblywoman Buckley added the transmission to the Secretary of State was in the form of a certified abstract. Assemblywoman Monaghan said the innocent until proven guilty concept should be held dearly. She had a question regarding the word "ceremonial" and suggested adding "ceremonial" to the bill. Assemblywoman Buckley said she would support it being included as it gave some guidance that the issuance of the certificate was ceremonial. The best rule was always to make it as clear as possible which would be a statute which said, "governor is to issue certificate of election. This is ceremonial only and includes the actual production of a physical document". Assemblyman Price referenced Adam Clayton Powell who was elected and, Assemblyman Price presumed, certified. The body moved to keep him from being seated. It went to the Supreme Court, and the Court ruled that the body could not stop him from being elected and becoming a part of the body. He could be expelled, but not kept from becoming a part of the body once they were properly elected. Assemblyman Price believed that had relevance to the question because if the person was elected they would become a member of the body, but could be expelled for a reason. Ms. Lucille Lusk, Nevada Concerned Citizens, testified in support of A.B. 412. She discussed lines 15 and 16 on page 2, which concerned certificate of election, and thought that portion probably should be rewritten. If the certificate was ceremonial, it had no legal effect so there would be no point in making it void. In the event the contesting individual was seated, the concern was if the individual who was previously seated and who did not then have the right to be seated, was allowed to commence his/her duties, the will of the people could be subverted. For addressing that possibility, she suggested lines 15 and 16 read, "The certificate of election issued to the other candidate is thereafter void, and any action taken while the contested candidate was seated which was determined by a single vote shall be deemed void and of no effect." The only purpose of the amendment would be to address the unlikely possibility that a contestant might be seated. Chairman Giunchigliani asked Ms. Lusk to submit the wording in writing to the committee for committee's work session April 13, 1995. Assemblyman Fettic contended A.B. 412 said when a legislator was elected by the majority of the people, the legislator shall be seated. If there was a contest which was not settled for two to four months, the leadership was chosen and legislature was running, everything done previously would be changed in the middle of a session that was decided by a single vote. Ms. Lusk emphasized she would like to see time lines in the bill for the solution but thought the will of the people should ultimately win. Assemblywoman Buckley responded in the two day period before the election contest would be decided, if that person was unseated and someone from the other party was given the seat, if the vote was crucial, then at that time, the House would re-vote leadership and the vote would change accordingly. Any important decision which had been made could easily be undone by another vote of the House. Chairman Giunchigliani closed the hearing on A.B. 412. At this time, Chairman Giunchigliani opened a Work Session on Nevada's Lobbying Disclosure Act (N.R.S. 218.900 through 218.944). See (Exhibit D). She referred to committee's prior discussion of possible amendments and suggestions which she and Co-Chairman Close refined and offered to Mr. Lorne Malkiewich, Director, Legislative Counsel Bureau, for review. Mr. Malkiewich discussed issues raised. One of the issues was receptions hosted by state employees. He admitted there were some concerns about requiring state employees to be registered as lobbyists when they were being asked to testify and assist in background research for bills. Mr. Malkiewich also felt uncomfortable with full-fledged regulation of state employees. However, when they were having a lobbyist type reception, a compromise could be to require those receptions to be reported in the same manner a lobbyist would report them. A reception by the Department of Human Resources, for example, would require reporting of the cost, the total number of attendees, the cost per person and the legislators in attendance, indicating the amount. A second suggestion made in the hearing was to require the information which local governments filed with the Department of Taxation concerning their lobbying activity, also be filed with the Director of the Legislative Counsel Bureau. The third suggestion was to require a lobbyist to report the date on which each expenditure was made. The concern was that sometimes a legislator would see a name and a dollar amount and would have no idea what the expenditure was for. Although this would be an additional burden for the lobbyists, many of them were already keeping records detailed enough that they would be able to report the date the expenditure was made Mr. Malkiewich said. The fourth recommendation concerned infrequent expenditures of two dollars or less. After committee's last hearing on March 23rd, Mr. Malkiewich issued a guideline indicating the expenditures were more of an administrative burden than it was worth to take care of them, and directed the $2.00 or less expenditures not be reported. He reflected this should be addressed by legislation and not by rule, and if any abuse occurred, he would take action to undo the rule. He acknowledged it was a decision which should be made by the committee. The fifth issue was repayments made by legislators. Mr. Malkiewich suggested since there was a legitimate reason a legislator might want to repay an expenditure rather than having it disappear, the legislator could report the expenditure was made and the expenditure was repaid. The expenditure would not disappear or vanish from view. One of the other areas was differentiating between the educational and entertainment receptions. The practical problem was that every reception would become an educational reception, and would not then serve any purpose. At Chairman Giunchigliani's request, Mr. Malkiewich summarized the four categories: If a lobbyist spent less than fifty dollars in a month, he or she would report the total amount of expenditures and the legislators on whom the expenditures were made. If a lobbyist spent fifty dollars or more, or more than fifty dollars, in addition to the itemizing by legislator, the lobbyist must break down into categories. The first category was entertainment, which would include taking someone to dinner or a baseball game; the second category would be parties or similar events, which would be where receptions would usually fall. (Although entitled "parties", the "similar events" includes receptions and large events to which a large number of legislators are invited, he explained). The third category was gifts and loans which was any gifts or loans to legislators. The fourth category was "other". Mr. Malkiewich explained by rule the Legislative Commission had indicated "other" would include such things as buying a meal for the guest of the legislator or something similar, and was not entertaining the legislator. The entertainment category also would be appropriate. But "other" was the catch-all category. It had been used for things impossible to itemize by legislator and all expenditures under fifty dollars for the month. If a lobbyist reported for a month four ten dollar expenditures for certain legislators, it was not broken down by category, so when monthly reports were done, it was put under "other" since it was not itemized by category and the amount for the month was under fifty dollars. Assemblyman Close, clarifying the zeroing-out process, stated after the monthly publication came out and the individual chose to pay the money back within ten or five days after receipt, Mr. Malkiewich would publish an addendum the following month stating that it was repaid. If the legislator did attend the activity, chose not to be reimbursed for it, and the expenditure was still on the record, it would allow them to have a better track record as far as keeping the paper trail. Mr. Malkiewich confirmed it would allow a person who did not want to have a particular expenditure reported, to repay it and have a complete record of exactly what happened. The expenditure was made; the legislator then repaid it. Chairman Giunchigliani reiterated the issue in the original hearing was a legitimate one for those who wanted to pay, but the other issue was raised that the intent of the Lobbyist Law was disclosure which explained why the name should not be removed as though that person had never attended the function. Chairman Giunchigliani requested Mr. Malkiewich to explain the memorandum on the two dollar expenditures. Mr. Malkiewich said an infrequent, minor gift was not worth reporting, it seemed. It would open the door to abuse, however, so the wording was changed to, "For infrequent expenditures of two dollars or less," he said. Chairman Giunchigliani asked if the four categories (entertainment, parties and similar events, gifts/loans, and other) were in statute. Mr. Malkiewich affirmed they were in the statute. Some explanation was in the statute explaining what the categories meant both in the regulations adopted by the Legislative Commission, the forms approved by the Commission, and the guidelines. However, the categories themselves were in statute. If committee wished to change those, the statute would need to be changed. Chairman Giunchigliani discussed the category of entertainment which included buying a meal. She suggested to only use "buying a meal" or "a meal." Entertainment seemed to mean buying a show, ski lift or movie ticket, she said. Responding to Chairman Giunchigliani, Mr. Malkiewich said the categories had been in existence for several sessions and had not been changed for some time. He explained what had happened over the years was buying a meal was the most emphasized and much closer to entertainment than any of the other categories. Chairman Giunchigliani further asserted meals for legislators should warrant another category. Mr. Malkiewich agreed a separate category for meals was appropriate. Assemblywoman Monaghan had heard concerns if legislators paid in advance, the money did not show on the report. Paying for at the present time or 10 days after it was reported gave the appearance that the legislator who paid in advance was not there, but the legislator who paid at the present or after it was reported, was there. Responding to Assemblywoman Monaghan's comment, Mr. Malkiewich explained it would be indicated on a report whether the person paid at the door or ten days after the report came out. It would still show the person attended the event but paid. There may be one interim report which showed the legislator attended but did not show the legislator repaid. The next report, however, would show the legislator had paid. The initial report would show the first legislator attended but paid his own way. Chairman Giunchigliani communicated the point to be stressed was disclosure and should show "paid" or "repaid". Assemblywoman Monaghan and Chairman Giunchigliani discussed disclosure which they agreed included not only monies spent but where a legislator was going and with whom. Assemblyman Close asked Mr. Malkiewich to provide committee with a copy of his notes incorporating issues just discussed for review by the committee on April 13. Chairman Giunchigliani reiterated she would like to add a category which separated meals from entertainment. Assemblyman Price added it had been suggested that lobbyists should disclose bill numbers they were working on. Mr. Jim Hulse, Chairman of the Board, Common Cause, expressed his feeling the law passed last session was a good one and should be given ample time to work before it was modified in any substantial way. He suggested the law be applied to local governments. Chairman Giunchigliani thought it was a valid point, and Staff would be asked to review the suggestion. Ms. Ande Engleman, Nevada Press Association, stated she was opposed to the weakening of Nevada's Lobbyist Disclosure Act. She, too, felt the law should be given time to work and was opposed to not reporting occasional items of less than two dollars. She commended Mr. Malkiewich by stating, "We would like to go on the record as saying that the Nevada Press Association thinks very highly of Mr. Malkiewich and thinks that he is a breath of fresh air." Chairman Giunchigliani, noted in the previous hearing, many of the suggestions came from Ms. Engleman and from Common Cause and asked if Ms. Engleman saw the suggestions as a weakening of the Lobbyist Law. Ms. Engleman contended all of Mr. Malkiewich's recommendations would strengthen the law and were the ones endorsed by the Press Association and also the suggestion for lobbyists to disclose the bill or the issue upon which they were lobbying. Upon questioning by Chairman Giunchigliani, Ms. Engleman said there were different events which lobbyists attended with legislators which were not dinner and which provided access. Ms. Engleman thought this type of access needed to be reviewed. Lobbyists were accustomed to explaining their point of views when taking legislators out to lunch or dinner instead of doing it in a public setting at the time of the hearing, and both lobbyists and legislators needed to learn new habits. Further discussion regarding disclosure ensued between Assemblywoman Monaghan and Ms. Engleman with Assemblywoman Monaghan questioning the press's position regarding hallways of the legislature which also provided access. Ms. Engleman believed the attitude and general consensus was that what went on in the building was subject to view by everyone. Assemblyman Dini at this time asked if end-of-session parties were no longer permitted. A discussion ensued between Chairman Giunchigliani and Ms. Engleman regarding funding of the parties and guests at the parties. Ms. Engleman stated she had asked the Nevada Press Association attorney to review, and she admitted the area could be questioned. Concluding her testimony, Ms. Engleman stated she thought a constitutional amendment was being dealt with and not the Lobbyists Disclosure Law. Ms. Lucille Lusk at this time testified from a citizen's point of view. She expressed that government employees who engaged in active lobbying efforts in the halls and personal meetings and personal lunches, should register as lobbyists just as a private citizen must register as a lobbyist. Ms. Lusk informed a private citizen must register and pay a fee if they talk to anybody other than their own legislator which was a pretty stringent criteria. She explained almost anybody who had an interest in a bill had a desire to talk to more than one person about it. Therefore, a private citizen who came to the legislature one time and wanted to talk to several people about one bill, technically would be required to register. Hence, people would like to see the same criteria applied to the government. She emphasized her feeling that government employees should meet the same criteria as a private citizen and be registered and recognized as a lobbyist. Regarding the suggestion of applying the same criteria to local governments would result in incredible confusion, she stated. Addressing the small expenditures of two dollars or less, Mrs. Lusk suggested establishing a cumulative figure. Mr. Jim Hulse, Common Cause, again assumed the testimonial table and stated he would like to make clear that nothing Common Cause wanted to do would restrict access between citizens and their legislators or school board members. Common Cause wanted to encourage as much exchange as possible. Common Cause only registered as lobbyists when speaking for someone else and if and when Common Cause was trying to ascertain where money was. To follow the money trail was crucial, he related. Chairman Giunchigliani, responding, said people who came to testify for one time were obtaining the little white badge, and she felt an over-interpretation of part of the statute was the reason. Chairman Giunchigliani closed the hearing on proposed amendments to the Lobbyist Law. ASSEMBLY BILL 274 - Provides method for determining leadership in either assembly or senate in event of evenly divided membership between two political parties. Assemblywoman Dianne Steel, District No. 16, prime sponsor of A.B. 274, testified in support of A.B. 274. She addressed the committee from prepared testimony. See (Exhibit E). Assemblywoman Monaghan referenced line 4, "between two political parties," and suggested omitting the "two" because there could be three or four. Assemblywoman Steel agreed with omitting the word "two." Assemblyman Dini spoke that Assemblywoman Steel was assuming each Assembly District was equal and reapportioned equal, but he emphasized the growth factor. Some districts were fast growing and some were slow growing. The votes were not the same once reapportionment was over. Assemblywoman Steel stated A.B. 274 would be statewide. It would be up to the individuals of different parties to vote in the elections. It would be up to the individual parties to encourage their people to get out and vote in the event of a tie. That vote would be statewide, not just district by district. She felt it would be closer than gambling with a coin toss as far as what the citizens really wanted. Assemblyman Dini said since 40 percent of the money in the general fund was from gaming he did not see anything wrong with flipping a coin. He thought there were too many disparities in the way the legislation worked out in individual districts, and cited the last election proved it more than in the past. Assemblywoman Steel said she was looking more towards people who actually went down to the polls to vote, the popular vote. Assemblyman Perkins declared he shared Speaker Dini's concern. How leadership was decided affected everybody's district. He gave as an example how the number of voters who voted in a certain district would affect the representation which Assemblyman Perkins provided for the people in his district. Another concern would be a natural act that decided the outcome of the election such as a white out snowstorm over the northern half of the state that would reduce the amount of voters in the northern half, which is a majority of Republicans, as opposed to Democrats; or a flash flood in the southern part of the state that would reduce the number of voters in the southern part of the state. A natural act could then reduce the number of voters who turned out to the polls and would have an affect on that particular decision making process, he concluded. Discussion ensued between Assemblywoman Steel and Assemblyman Perkins who thought because a certain number of voters voted throughout the state, the leadership structure should be impacted. Assemblywoman Steel expressed agreement in that aspect but thought voting should be favored over a throw of dice which she did not think represented responsible decision-making on behalf of the voters. Chairman Giunchigliani said at some point other mechanisms would be discussed and noted when recommending the roll of the dice, there was a plan to go along with it. She reminded committee the issues were resolved prior to the session so that nothing which happened through the negotiations or otherwise affected the session. The session was affected by a contest. Continuing, Chairman Giunchigliani agreed weather affects pollsters. If the issue was turnout versus popular vote, the weather could affect turnout which in turn would affect the popular vote. She did not agree a popular vote translated into who selected leadership within the legislature. The whole issue should be reviewed for recommendations for the future, she emphasized. Assemblywoman Steel once again suggested consideration of the popular vote rather than the dice. At this point she stated L.C.B. had sent a proposal for an amendment to the bill, and she read the amendment. See (Exhibit F). Chairman Giunchigliani questioned, "Your other suggestions might be to deal with the popular vote being used for deciding who is speaker and who is speak pro tem?" Assemblywoman Steel responded just as a start-off instead of a roll of a dice. At this time, Assemblyman Humke asked, for the record, the gross popular vote in 1994. Assemblywoman Steel replied approximately 83,000 to 140,000 Republican to Democrat, Democratic vote. She understood committee's dismay at possibly using the popular vote. Assemblywoman Freeman added the people in her district thought the roll of the dice was a good idea. Assemblyman Dini said, "For the record, I think there is some precedence for cutting the cards, and also at the Supreme Court I think that they settled a tie with a flip of the coin, and I know in a fish and game election we used to elect fish and game commissioners in my town, if two guys tied, and they cut the cards, the high card won. I think there is a long list of precedents for the gamble thing." Chairman Giunchigliani asked Mr. Erickson to research the subject. Mr. Close discussed the upcoming April 13th meeting and gave committee a list of bills to be discussed at the work session on that date. There being no further business to come before committee, the meeting was adjourned at 5:15 p.m. RESPECTFULLY SUBMITTED: Bobbie Mikesell, Committee Secretary APPROVED BY: Assemblyman Jack D. Close, Chairman Assemblywoman Chris Giunchigliani, Chairman Assembly Committee on Elections and Procedures April 11, 1995 Page