MINUTES OF THE ASSEMBLY COMMITTEE ON GOVERNMENT AFFAIRS Sixty-eighth Session February 24, 1995 The Committee on Government Affairs was called to order at 8:00 a.m., on Friday, February 24, 1995, Chairman Lambert presiding in Room 330 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Mr. Douglas A. Bache, Chairman Mrs. Joan A. Lambert, Chairman Mrs. Deanna Braunlin, Vice Chairman Mr. P.M. Roy Neighbors, Vice Chairman Mr. Max Bennett Mrs. Marcia de Braga Mr. Pete Ernaut Mrs. Vivian L. Freeman Mr. William Z. (Bill) Harrington Ms. Saundra (Sandi) Krenzer Mr. Dennis Nolan Mrs. Gene Wines Segerblom Mrs. Patricia A. Tripple Mr. Wendell P. Williams COMMITTEE MEMBERS ABSENT: None GUEST LEGISLATORS PRESENT: Mr. John Marvel Mr. John Carpenter STAFF MEMBERS PRESENT: Denice Miller, Senior Research Analyst OTHERS PRESENT: Paul Gardner, Elko Broadcasting, Danna G. Sturm, Elko Broadcasting, Bobbie Gang, Elko Television District; Paul Burkholder, Humboldt County; Leo Puccinelli, Elko Television District; Gene D'Asto, Elko Television District; M.K. Yochum, Independent American Party; and Matthew Parker, citizen. ASSEMBLY BILL No. 8 Authorizes creation of general improvement district to furnish facilities for certain radio transmission. (BDR 25-1041) Chairman Lambert asked Mr. Marvel to introduce the bill. John Marvel of District 34 stated he was the one and only sponsor of A.B. 8 and was introducing it by request and neither supports it or opposes it. Mr. Marvel stated the bill has been a subject of controversy, particularly in rural Nevada. He said he was going to leave the subject matter purely at the discretion of the committee. He felt the committee should know if the bill passed it would be another leg of Chapter 318 and be certainly at the discretion of the County Commissioners. He then asked the committee for questions. Mr. Bache asked if there would be any fiscal impact with the bill. Mr. Marvel replied if there were any impact, it would be at the local level. Chairman Lambert recognized John Carpenter. John Carpenter, Assembly District 33, spoke in support of A.B. 8. He stated there was controversy within the Elko community in regards to this bill. He said it would ultimately go to the County Commissioners for decision, and was a bill of local control. He gave a background history of the Elko County Television District. He stated at the time it was formed there was no controversy, because it was the only means to bring television into the Elko area. He stated, even with today's present broadcasting equipment, it still provides a valuable service. He said the CBS station out of Reno, is the only Nevada television station that Elko receives. That station is brought into Elko by the T.V. district and then picked up by the cable company, free of charge, and rebroadcast on the cable. Everything else on the cable is transmitted out of Utah. Mr. Carpenter stated it was a very good investment as far as the money we pay is concerned. He stated the average household pays approximately three dollars a year on their property tax for this service. A business would pay a small amount more. He brought up another topic for discussion in that the people that take care of the T.V. station are practically all volunteer labor. He stated the money is used for the purchase and repair of equipment. He said the labor is practically all volunteer. Mr. Carpenter stated the cause of the controversy was because the television station was transmitting FM radio stations. He went on to say Elko has two radio stations, one being a country western format, and the other has various programming. He stated the television station was transmitting a program that was in competition with KLEK. He said the television station was transmitting on the other radio station with the country western format, so it would reach remote areas of Elko county. He believed this would ultimately be decided by the county commissioners and the television district should be in competition with the private radio station. He stated tax money should not be used to compete with private enterprise. He felt the county commissioners could put restrictions on when they hold public hearings. He stated there will have to be public hearings in order for the television district to translate FM radio signals. He felt there were other areas of the state that need this service. He stated this legislation would give them an opportunity to add FM radio stations to their service list. Mr. Carpenter went on to add that some of the districts are broadcasting signals against the law. This bill would make legal what they are already practicing. He said it was a local issue and let the county commissioners decide it and to put the necessary restrictions as to what the television district can transmit as far as a FM signal. Mr. Carpenter asked for any questions. Mr. Bennett asked for a clarification as to what law the districts were transmitting illegally. He also asked if they had to have written permission or permission from the originating station itself, plus FCC approval. Mr. Carpenter replied he thought this to be correct, but there would be other people testify to what the law exactly is. Mr. Carpenter said when the controversy started in Elko, an attorney general's opinion was used saying they did not have the authority to do that. He stated the Elko station started receiving private funds to keep one or two of their stations on the air. He went on to say in other districts, nobody made a fuss, so they are probably still transmitting illegally. He said a change in this law would enable these people to become legal. Chairman Lambert recognized Bobbie Gang. Bobbie Gang representing the Elko Television District spoke in support of A.B. 8. (Exhibit C). She asked Mr. Puccinelli to approach the table to testify with her. Ms. Gang stated for clarity, this bill is enabling legislation. She stated it does not create a board or an improvement district but it does allow any county through the board of county commissioners to create an improvement district or to add to the powers of an improvement district. She said according to Chapter 318 of the Nevada Revised Statutes, they do so through an ordinance after public hearings, so people have sufficient time to come and appear before the county commissioners, debate the issue and determine whether the need for the service is there at each local level. Ms. Gang introduced Leo Puccinelli. Mr. Leo Puccinelli, attorney for the Elko Television District spoke. He proceeded to recite the history of the whole event. (Exhibit D). He stated NRS 318.1192 was originally enacted in 1967. The powers given to the T.V. board by that section, in addition to the basic powers set forth on November 7, 1967, the Board of Elko County Commissioners then enacted an ordinance pursuant to Chapter 318. The board created the Elko Television District and appointed its first board. The members, he stated, were subject to election at the general elections. He said for several years the Elko Television District in addition to its T.V. translators, transmitted two Christian stations, one local station, one Salt Lake City station and one Reno station. This was done in order to give a full spectrum of music and news as requested by the numerous listeners. Mr. Puccinelli stated the Elko Television board has had over ten other television districts in other counties in this state believe they have the inherent power to broadcast and retransmit FM signals. He said it must be remembered that television signals are FM signals. He said they are different spectrums in which television pictures and sounds are reproduced. He said it was all on the same wave length. He stated when an owner of an Elko FM radio station complained the television board did not have authority to translate FM signals, the opinion of the attorney general was sought. The opinion rendered on April 8, 1994 was to the effect that television districts did not have the authority to translate FM signals pursuant to existing NRS Chapter 318 authority. He went on to say the Elko County Television District immediately stopped FM transmission. Other districts in the state are still transmitting FM signals, although the attorney generals' opinion would seem to dictate they cannot lawfully do that. Mr. Puccinelli stated, in regard to the attorney general's opinion, he had asked for a rehearing. The matter was simply brought up on the complaint and the Elko district attorney sought an opinion from the attorney general. He said the attorney general rendered an opinion without any testimony, facts or input from the Elko County Television District. He requested another hearing and was denied by the attorney general's office. He felt it was a one sided decision without any facts submitted to them for consideration. He said at least one county in the state of Nevada, which is unincorporated, is operating under the authority of NRS Chapter 269. He said this would appear to have the same limitations we have under NRS Chapter 318; they are nonetheless still transmitting FM signals. He stated that following the shut down of the Elko Television District, pursuant to the attorney general's opinion, a non-profit group known as the Ruby Mountain Translator Association was formed and leased FM translator equipment from the Elko Television District. They restored the FM signals to the air. He said the Elko Television District, as do many other television districts throughout the state, felt the law should be updated to include FM radio transmissions. He said this was due to the fact when Chapter 318 was enacted in 1967, FM was basically unknown. He said it should be pointed out this is simply an enabling act. When Chapter 318 was passed to set up these special districts, it was not mandatory, a county did not have to put up a Television district, it merely permitted them to do so if they felt a need to. He said that was all they were asking for now, an enabling act. He stated if the Elko County Commission does not want to add FM, that is their circumstance. Mr. Puccinellli went on to compare the gas tax. Mr. Puccinelli stated he wanted to point out the board is created pursuant to Chapter 318. These boards are not money making boards. He said they are simply performing a public service for the benefit of those people living in the outlying areas of their county who do not have this entertainment available to them. He said they were not in competition with anyone. He felt this is a public service and encouraged the adoption of this act. Mr. Puccinelli asked for questions, from the Committee. Mr. Bennett asked if the television district was allowed to sell advertising. Mr. Puccinelli answered no, it was not a money making proposition. Mrs. Freeman asked Mr. Puccinelli to review the attorney general's opinion again. Mr. Puccinelli replied a complaint was made saying public funds were being used in competition with private enterprise. He said the complaint stated the Elko County Television District did not have authority to retransmit FM signals. He said the only authority the Elko Television District was operating under was 318.1192. He stated it specifically said to pick up and transmit television signals. It did not say anything about FM signals. He thought FM was inherent in their FM signals. He said the matter was submitted to the Elko District Attorney, who in turn asked the attorney general for an opinion. He said the attorney general denied the request for rehearing. Mrs. de Braga asked if there was any competition for advertising dollars, or was only competition for listeners. Mr. Puccinelli replied there is no advertising charge by the Elko Television District. He said he could not speak for the other districts throughout the state. He reiterated there is no money making proposition by the Elko Television District. He went on to add, the Elko Television District gives a Reno T.V. signal to a private enterprise, so it may be put on cable for the populous free of charge. Mrs. de Braga commented she represents a district that has several small radio stations and some have objected on the grounds that this inhibits free enterprise. She added there is no real need for these districts. Mr. Puccinelli asked for clarification. Mrs. de Braga asked why the television districts were established and what are their functions. Mr. Puccinelli replied, without the television districts, Elko as an example, would not receive many of the signals the population is now receiving. We would not receive a Reno signal unless there was someone to pick up these signals and transmit them in a manner the general public could receive them. Mrs. Lambert asked how one may obtain a FCC license. Mr. Puccinelli referred the question to the chairman of the television district. Mrs. Lambert recognized Mr. Gene D'Asto. Gene D'Asto, chairman of the Elko Television District, submitted numerous letters to the committee. (Exhibit E). He read a letter addressed to Marcia de Braga from White Pine Television District. This letter endorsed the passage of A.B. 8. The letter stated A.B. 8 will protect the FM radio in those remote areas; further A.B. 8 will not prevent or preclude any new local FM service from being initiated either commercially or whatever. The letter said to suggest a federally licensed FM service that has existed for many years must now be abolished for whatever reason is ludicrous. It was encouraged to pass A.B. 8. Mr. D'Asto asked for questions. Mrs. Lambert asked how a FCC license was acquired. Mr. D'Asto replied in order to get a FCC license, the T.V. districts hire a person who does this for a living. They examine the FCC records for frequencies that are not used and available in a certain area, forms are then filled out and sent to the FCC asking for a translator to be operated on a certain frequency. After examining the applications, the FCC will either accept or deny the application. Mr. Ernaut asked what the cost involved was. Mr. D'Asto replied an FM translator runs around three to four thousand dollars. He stated to operate it, it costs around eight cents a day. Mr. Bennett asked if he assumed correctly this was to basically "mirror" rules and regulations set up for television transmission. Mr. D'Asto replied in the positive. Mr. Bennett stated what he failed to see in it, was for television transmission there is a separate section NRS 318.1194. He then read section one. He asked for an explanation on why this was in the hands of the county commissioners and not in the hands of the voters. Mrs. Lambert interrupted, stating the franchise Mr. Bennett was talking about was cable T.V. that the county commission would grant, and that is just saying it would have to go to an election instead of just having the county commission grant the cable franchise. This is separate from the T.V. translator district. Mrs. Lambert recognized Paul Burkholder. Mr. Paul Burkholder spoke. See (Exhibit F). Mr. Harrington asked Mr. Burkholder where in the Constitution does the government have the authority to do this. Mr. Burkholder replied it would be in the same place where it states local entities have the power to provide services to the area residents. Mr. Nolan asked if they were looking at providing a wider range of choices for the listener. Mr. Burkholder replied, in some areas it is providing any radio at all. He stated some areas have no FM at all. Mr. Nolan stated this bill probably would not be necessary if the private sector were already providing these services. He then asked for affirmation. Mr. Burkholder replied if the private sector could provide these services, in most of these areas because of the low population density, it is uneconomical for a private individual to operate a FM station. He said it is a much more expensive process to have a full service FM station. The rules and requirements are much more expensive. He stated a FM translator can be operated economically in these areas. Mr. Nolan asked for a follow up question. Mr. Burkholder interrupted stating that Mr. Puccinelli asked him to point out due to the changes in FCC regulations, primary stations can no longer pay for or support a FM translator that operates outside of its coverage area. This was something that was done in the past. They can no longer do this, there are some existing situations where this is grand fathered in, but this is no longer permissible by the FCC. Mr. Nolan asked if they could expand their listening service into these areas. Mr. Burkholder replied only non commercial and educational stations. Commercial stations can no longer do this. Chairman Lambert then recognized Bobbie Gang. Bobbie Gang, representing the Elko County Television District , spoke directly to Mr. Harrington stating she believes Chapter 318 states why improvement districts are created in areas of the state where they are unable to receive T.V. signals and radio signals from a variety of broadcasters. It has been considered entertainment and education that could be brought to them through these signals would be appropriate for the government to transmit. She said this was one of the reasons why there are quasi-municipal T.V. districts. Mr. Harrington asked if the constitutional clause to be used would fall under general welfare. Bobbie Gang replied in the affirmative. She then offered to make copies of letters to be put in the record. She mentioned the Beatty Town Advisory Counsel operates under NRS 269.127 and they sent a letter to her asking the committee to include the NRS 269.127 in this amended bill. Chairman Lambert asked that she give the suggested language to Denice Miller. Mr. Nolan asked if it was the intention to compete with the private sector and at what point do we address that when perhaps the population is enough to support a private radio station to broaden their selection that they are providing. What are we going to do to address that when it gets down to a point that a government entity is actually competing with private enterprise. Bobbie Gang replied she would like to invite the Elko representatives to answer that question if any of them wanted to. She stated a public board is subject to open meetings and public hearings, so at the time when the privately owned stations would come to them and request they discontinue a certain type of programming, they could do in a public hearing determined upon what was presented to them. Gene D'Asto, chairman of the Elko Television District, spoke saying Ms. Gang had answered the question quite well. He stated problems could be handled in open public meetings, and a committee acts accordingly. Chairman Lambert asked how is the Board of the General Improvement District selected. Mr. D'Asto replied it was by vote. Chairman Lambert asked if by the people? Mr. D'Asto replied yes. Mr. Neighbors stated, he too, received numerous calls from people in his district in support of A.B. 8. Chairman Lambert recognized Mr. Paul Gardner. Mr. Paul Gardner of Elko Broadcasting, testified in opposition to A.B. 8. He stated radio was established by business people years ago. He said a profit could be made by broadcasting programs people want to listen to and by selling advertisements within that programming. He said the FCC gave him a license, not based on the fact he could make a profit, but in order to provide service to the community. He said a station rebroadcast out of Reno or Salt Lake City into the Elko area does not give service to the local people, it is a nice alternative but he is opposed to the way they are being paid for. He said he felt competition is a good thing, but would prefer doing competition with people with the same restraints. Mr. Gardner talked about Mr. Carpenter's testimony. He corrected Mr. Carpenter's testimony that there are four licensed stations in the district instead of two. He listed the stations and how long they have been in the area. He stated the county commission gave these stations authority in 1967, and they have provided a good service with their television. He said they were practicing illegally according to the attorney general. He said it is a national issue, so any decisions made will be seen by the National Association of Broadcasters and will affect decisions made in other states. He said the fiscal impact would be minimum tax wise, but he stated he has lost about fifty thousand dollars in 1994, that he bases his revenues on because of this issue. He said he wondered if Mr. Carpenter would support this bill if they were talking about real estate sales people. He said A.B. 8 does not concern Mr. Carpenter directly. He said Mr. Carpenter advertises on the radio station and maybe it will affect him indirectly. He stated the volunteer force costs one hundred thousand a year. It is not completely volunteer. He said they do a good job and they deserve to get some sort of payment. He brought forth a package on FCC licensing, translators, etc. (Exhibit G). He reiterated Ms. Gang's testimony. He quoted Mr. Puccinelli's testimony in regard to NRS being passed in 1967. He talked about the separation of church and state. He said the same spectrum is used, FM radio was designed to broadcast the audio portion of television. He stated he made a phone call to Mr. D'Asto requesting he have an opportunity to discuss the illegality at a meeting. He then discovered it had come before the Elko County Commission with no one ever making a formal complaint. He said he wanted to discuss the issue with them because they were competing directly against his format. Mr. Gardner stated the Elko Television District had all the facts needed to go before the attorney general. Since the appeal was denied, it was because the attorney general will only rehear a case if a law changes, or if the protocol within the ttorney general's office was compromised. He said if the law does change, the attorney general will rehear this case and reform an opinion. Mr. Gardner spoke of Mr. Marvel's constituents and the service to these areas. He said it was stated by Mr. Puccinelli that this was not a money making venture. He said the Elko Television District rents out space at their transmitter location for two way communication equipment. He said this is a violation, and they are receiving payment for that service. Mrs. Lambert interrupted asking Mr. Gardner where is it allowed to pay for commercials in A.B. 8. Mr. Gardner stated it is not in A.B. 8 it is in the FCC regulations regarding translators. Mr. Nolan asked if a private citizen could operate a translator and charge advertising. Mr. Gardner answered yes they could. Mr. Nolan asked how Mr. Gardner would feel about a private party operating a translator, broadcasting your radio signals to somebody else and making a profit doing that. Mr. Gardner replied the law states you cannot make a profit on it, you can recoup your expenses. Mr. Gardner stated he disagreed with the statement there would be no further broadcasts of Nevada news in Elko if it were not for the television district and the rebroadcast from Reno. He stated his A.M. station has been on the air for a very long time, with a wonderful news department. He stated they are the only Nevada station to be nominated for station of the year in 1995. Mr. Gardner stated the letters from the people of White Pine County wanted to protect their signals, they did not want them to go off the air. If A.B. 8 did not pass the radio signals would go off the air. Mr. Gardner emphasized this was not true. The Elko County Commission had suggested that the Elko Television District take their translators off the air until such time as this meeting could take place. He said they were off the air for a period of time until FCC approval. He said K- Ely has been on the air a long time as well as the F.M. station. (Exhibit H). Mr. Gardner stated there is no constitutional right to radio. It is on the air because entrepreneurs put it there, not because the government got involved. He stated in order to get licensed, any legally qualified candidate may get a license. A.B. 8 does not just affect those of us in the small markets, it affects Reno, Las Vegas and other competing stations. Mr. Gardner stated if the private sector can supply a product, and if there is enough demand to pay for that product, that is the American way. He said the Elko Television District is bringing in competition which he feels is very hard to deal with. He said passing the bill would mean change and increase the choice. Everyone would have more representation if it were in the private sector. Mr. Gardner stated commercial broadcast stations can, and they do in many cases, broadcast outside their primary coverage area. If there is already service to a certain area then an outside broadcaster could not transmit to that area. If there is no primary service in another area, broadcasting is possible. The originating stations are making money on this. Mr. Gardner said the open meeting is true now, but for the last few years the public meetings were being held in the kitchen of Mr. Zanino, one of the board members. He felt it is not completely open when you must meet at someone's home. He felt county offices would be a better alternative. Mr. Gardner asked for questions. Mrs. de Braga quoted Mr. Gardner saying "people supporting this bill only did so because they had nothing personally to lose". She asked him what could be done to fix this bill so that service could still be provided to the outside areas that still need it. Mr. Gardner replied if the government were out of the picture, many of the areas are large enough to support their own stations. If the translators were not there people would be looking at that market. Licenses are very easy to get. Mrs. de Braga said assuming no one wants to do this and we cannot force people into this business, and this service is something that needs to be provided, and we cannot exclude them by law from being able to have this service... Mr. Gardner interrupted saying they are being excluded now by not putting them into places like Montello, by fixing these translators into areas where there is already service, then you are by rights saying Montello does not count. Mr. Gardner said if the residents of an area want that service, the cost would be approximately eight cents a day, three hundred dollars a year total. It does not have to be supplied by the government. Mrs. Segerblom asked about the counties that do not have this service. Mr. Gardner stated the Elko Television District came up with a plan last June, from the Ruby Mountain Translator Association, increasing the translators and choices by paying for it out of their own pocket. He said if A.B. 8 does not pass, then all the T.V. stations that have been broadcasting illegally decide to stop, the people in that market will not allow that to happen. He said the committee must vote with its conscience not for political votes. Mrs. Segerblom stated Mr. Carpenter is against mandating anything. She said she cannot believe this bill mandates the county commission to do that. Mr. Gardner replied the bill does not mandate that. It gives the county commission the authority to pick and choose. Once the district is created it will never go away, it will be burdensome to the taxpayers forever and he sees no reason for that. Chairman Lambert thanked Mr. Gardner. She stated for the committee's information there is provision in Chapter 318 to dissolve a district or a power that the district has with the approval of the people in the district. Chairman Lambert recognized Mathew Parker. Mr. Mathew Parker, a citizen of Elko spoke in behalf of A.B. 8. He stated with the testimony presented, it has given a clear idea the effects of this legislation. He said the existence of FM translators and the broadcasts coming from them are necessary for the public safety. He said any action that would result in the loss of those transmitters would take away access to the information necessary to the public safety. He also stated the opportunty of local broadcasters working together with the television district is available to those who are willing to cooperate. He said there is opportunity for the businessman to benefit as well as the public at large. Chairman Lambert then recognized Mr. Paul Gardner for a second time. Mr. Gardner said the KRCG transmitter was being operated illegally for some time, it is outside the television boundary and should not be on the air at all. Mrs. Krenzer asked Mr. Gardner if he had reported these violations. Mr. Gardner replied no, he has been trying to stay out of these things as much as possible, and felt it is the district attorney's responsibilty. Chairman Lambert recognized Danna G. Sturm. Danna Sturm stated she was an interested citizen from Elko. She said her concern with this bill is when the original legislation was created back in 1967, there was a need for the state to jump in and help make that passing available to various areas. She believes now local people should take the initiative and the state not get involved. Chairman Lambert recognized Mr. Paul Burkholder. Mr. Paul Burkholder from Humboldt County addressed the committee regarding the thirty second commercial to raise money for the translator. He said few, if any, use this thirty second commercial for several reasons. He stated first, there is the hardware aspects, additional operating costs, additional maintenance costs. Many of the rural F.M. translators are located on mountain tops and hospital environments where access is difficult or impossible for a good portion of the year. He said this would mean additional equipment would have to be purchased to transmit the original signal to the transmitter site. Studio type facilities of some fashion would be required for the production of these commercials. He stated these are not simply financial or reliability issues. F.M. translator licensees generally have other vocations or are in charge of maintaining many translators and have neither the time nor the interest to produce these commercials. He said there was some confusion as to the FCC regulation regarding primary stations support of translators. He said prior to 1990, this was allowed. Primary stations could operate translators outside their coverage area, pay for, and hold the license for these. After 1990 the FCC changed the rules. If a primary station previously owned a translator out of its coverage area, they could keep this. He said no new F.M translators can be supported by a primary station outside its coverage area. Mrs. Lambert asked that a phone message from Joe Torsitano, supporting A.B. 8 be put in the record. Chairman Lambert then closed the meeting on A.B. 8. At 9:35 a recess was taken. At :50 a.m., the meeting reconvened. Chairman Lambert opened the meeting on A.J.R. 12. ASSEMBLY JOINT RESOLUTION NO. 12 Proposes to amend Nevada Constitution to prohibit exemption for legislators, officers, employees, or agencies of state from laws applicable to general public. (BDR C-1139) Mr. Max Bennett, Assemblyman District 14 spoke regarding A.J.R. 12. He said this bill addresses the accountability of the government. He said his constituents are fed up with the exemptions granted to our federal government. Examples were stated as the Civil Rights Act, OSHA, ADA, and most recently, exemptions from any federally mandated health plan. He stated A.J.R. 12 would insure our Nevada citizen legislature remain, just that. He said by addressing this issue, prior to the advent of a legislature abuse of power, the citizens confidence in our citizen legislature will be strengthened. He said he feels strongly that A.J.R. 12 should remain a constitutional change to the Nevada Constitution. He asked for questions. Chairman Lambert recognized Mr. Harrington. Mr. Harrington asked if there was an answer on the striking of state employees. Mr. Bennett replied this would not affect anything from the past, only for the future. Chairman Lambert recognized Brenda Erdoes. Brenda Erdoes of the Legislative Counsel Bureau gave an opinon they believe based on case law, this provision if enacted, passed, and put into the constitution will not repeal any existing laws. It will apply prospectively only. If there is any concern about that application it was suggested an amendment could be added to that section. It is the LCB's belief this would only apply prospectively. (Exhibit I). Chairman Lambert recognized Mr. Bache. Mr. Bache stated he was concerned about a number of things done in state government, in that if we did have it retrospectively, it could be affected by it or even prospectively could change behavior for future employees or future elected officials. He gave as an example the Legislative Retirement System. He asked if this would affect any future legislatures to be precluded or would we be rolled into the Public Employment Retirement System. What would be the affect to this area? Brenda Erdoes responded this constitutional amendment would not have an effect on the retirement system, but is aimed at laws that affect everybody. She gave an example of an attorney getting a postponement of a case while serving in the legislature. Mr. Ernaut stated presently we are exempted from receiving a ticket if we are on the way to the legislature to vote. He asked if this would be affected in any way. Brenda Erdoes stated she was unaware of the exemption he was speaking of. As far as she was concerned, criminal process still gets served. Any rights presently existing are still protected. Chairman Lambert recognized Mr. Harrington. Mr. Harrington asked if the retrospective or prospective not being a solid principle of law, would she expect a challenge of this and have litigation if passed without amendment. Brenda Erdoes replied she often finds if something is not stated in the face of the law, someone will bring a challenge to it. Another possibility she pointed out was when this is put in the constitution, the case law can change. Mr. Harrington asked if this legal principle was an "in between" category of rock solid or shaky. Brenda Erdos stated she thought it " in between", simply because it was not stated in the face of the constitutional amendment. If it were stated there, I don't think there is much anyone could challenge about it. She said without it stated, she felt comfortable that this is the state of the law, but again it would fall in that middle category. Chairman Lambert recognized Mrs. Segerblom. Mrs. Segerblom stated this would have to go to a vote of the people and would be costly. Brenda Erdoes replied, generally what happens with a fiscal note for constitutional amendments that are not completely self enacting, is when an actual bill comes under that, it costs money, that is when the fiscal note is analyzed. She said because of its prospective application, there is no fiscal impact present. Mr. Nolan asked if this would waive the possibility of prosecution. Brenda Erdoes, said it would not have that effect, because this constitutional provision speaks only to the legislatures. It would have the effect in that the legislature would be prohibited from providing a legislator being not prosecuted during session. You cannot exempt a legislator from a criminal law based on this provision. Chairman Lambert recognized Mr. Harrington for a second time. Mr. Harrington directed his question to Mr. Bennett, stating he would feel more comfortable if it would be changed on Line 5 to say.... exempting legislators or executive officers ... and eliminate the phrase employees of the state or agencies of the state. This would avoid the non decision making or non executive decision making employees of the state and it would avoid potential problems that may arise. This would still keep the idea that legislators and executive officers do not create special perks for themselves. Mr. Bennett replied he would take it into consideration. Chairman Lambert recognized Mr. Bache. Mr. Bache asked if this would apply to elected officials from counties or cities and would this be amended to include them? Mr. Bennett replied "no" not at this time. Mr. Bache asked why he would want a different standard for them than for the elected officials for the state. Mr. Bennett stated county officials are more closely accountable than legislators, the Governor and the employees acting under the direct order of the executive branch. He said legislators are the target, not the county government in the public's mind. Chairman Lambert recognized Mrs. Krenzer. Mrs. Krenzer asked if there are not currently laws that legislators are allowed to break, she asked why do you want another law to prohibit something we do not do? Why target just the state and not the county? Mr. Bennett answered it was the trickle down effect by the federal government. He said he was not satisfied with a law made by man that can be changed by man. A constitutional amendment will take a little longer to enact, but again, it will take the same amount of time to change back the way it was. Chairman Lambert recognized Mrs. Freeman. Mrs. Freeman stated it seemed to her if this committee were to pass a recommendation for a constitutional amendment, it should address all elected officers. She disagreed that the legislators were less accountable. When it is put on the ballot, do it the right way and cover all elected officials. Mr. Bennett responded he had no objection. He read the amendments as written. (Exhibit J). Chairman Lambert interrupted saying that a copy would be appreciated. Chairman Lambert recognized Ms. Tripple. Ms. Tripple stated her concern was if this was put to public vote, would it not create a great deal of suspicion. Mr. Bennett replied this is what the public wants. The public would not be suspicious. He said his campaign legislative reform was received with a positive reaction from the public. He said the citizens want to be assured that we have a citizen legislature, not a set of self proclaimed demigods as they preceive Washington. There being no further testimony, Chairman Lambert closed the meeting on A.J.R. 12. Chairman Lambert reminded Mr. Nolan that A.J.R. 7 was on second reading to be amended on this day. Chairman Lambert reminded Mr. Ernaut that A.J.R. 9 was on second reading to be amended also. With no further business before the committee, Chairman Lambert adjourned the meeting at 10:10 a.m. RESPECTFULLY SUBMITTED: Kelly Liston, Committee Secretary APPROVED BY: Assemblyman Douglas A. Bache, Chairman Assemblyman Joan A. Lambert, Chairman Assembly Committee on Government Affairs February 24, 1995 Page