MINUTES OF THE ASSEMBLY COMMITTEE ON GOVERNMENT AFFAIRS Sixty-eighth Session June 6, 1995 The Committee on Government Affairs was called to order at 8:00 a.m., on Tuesday, June 6, 1995, Chairman Douglas A. Bache 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 Ms. Patricia A. Tripple Mr. Wendell P. Williams STAFF MEMBERS PRESENT: Ms. Denice Miller, Senior Research Analyst OTHERS PRESENT: Mr. Bob Gagnier, Executive Director, State of Nevada Employees Association; Ms. Nancy Angres, Chief Deputy Attorney General, Human Resources Division, Attorney General's office; Mr. Gary Yoes, Local 1864, Service Employees International Union; Mr. Dennis Healy, Protective Association of Gaming Enforcement; Mr. Wayne Gilliland; Mr. Bruce Gates; Mr. George Pyne, Executive Officer, Public Employees Retirement System; Mr. Robert Hadfield, Nevada Association of Counties; Mr. Thomas Grady, Nevada League of Cities; Mr. Andy Anderson, Nevada Conference of Police and Sheriffs (See also Exhibit B attached hereto). SENATE BILL NO. 357 - Revises provisions governing disclosure by state officer or employee of improper governmental action. Mr. Bob Gagnier, Executive Director, State of Nevada Employees Association (SNEA), testified. He advised S.B. 357 would make five changes to the "Whistle Blower Law." Mr. Gagnier said the first change, contained in lines 7 through 12 of S.B. 357, was recommended by the Attorney General and was supported by the Department of Personnel. Mr. Gagnier pointed out the second change, in lines 14 and 15 on page 1 and lines 1 through 3 on page 2, provided the Personnel Commission could adopt regulations to govern hearings held in "whistle blower" cases. Mr. Gagnier referred to lines 21 through 23 on page 1 and explained the change contained in those lines resulted from an incident in which a hearing officer ruled against an employee because the hearing officer believed the employee had provided his information to the wrong person. He indicated the intent of the Whistle Blower Law, as originally drafted, was to provide that a state employee who wished to give evidence of wrongdoing could provide that evidence to anyone he wished. He said the purpose of the change being discussed was to ensure a hearing officer could not rule against an employee solely because the hearing officer believed that employee had provided his information to the wrong person. Mr. Gagnier advised the final change S.B. 357 would make to the existing law was contained in lines 19 through 21 on page 2. He said, during the past biennium, an incident occurred in which an individual exposed what he considered to be wrongdoing and, although the agency (which he accused of wrongdoing) could not retaliate against him, retaliatory action was taken against him by the licensing board through which he was licensed. He explained many state employees were required to be either licensed or certified by boards and suggested, if a state agency was able to circumvent the law (prohibiting retaliation) by filing charges against a state employee with the board which licensed him, it would "...put a real dent in the purpose of the Whistle Blower Law." He indicated the change contained in lines 19 through 21 on page 2 was necessary to prevent that from happening. He told of a situation in which nurses who worked in the Medical/Mental Health Division of the Department of Prisons had wished to expose some wrongdoing, however, when they were told, because of a flaw in the law, their employer could file charges against them with the state nursing board, those nurses withdrew their allegations rather than run the risk of losing not only their jobs but their livelihood. He suggested, because of that situation, information which might be beneficial to the citizens of Nevada was suppressed. Mr. Gagnier urged the committee to support S.B. 357. Assemblyman Tripple said, for the record, "As I look on page 2, this kind of laundry list here of `a' through `k', now, these were the items we had before and they seem to be actions, and then when we come with this new one, the `m', it sort of -- it seems like "m" ought to be pulled out as maybe number 6. It doesn't have a parallel construction to what you have above. Am I just misreading it? Some of them are directives and the old ones are actions; the new ones are directives." Mr. Gagnier suggested Ms. Tripple read the language to which she referred in the context of the language contained in lines 4 and 5 on page 2. He asserted the wording was developed by the bill drafters "...and the lawyers indicate this is the way to word it." Ms. Nancy Angres, Chief Deputy Attorney General, Human Resources Division, Attorney General's office, testified. She expressed the support of the Attorney General's office for S.B. 357. Ms. Tripple asked whether it was believed the language on lines 7 and 8 of page 1 of S.B. 357 would reduce the number of frivolous complaints. Mr. Gagnier replied the Attorney General's office had recommended an individual who claimed he was retaliated against for having reported wrongdoing should be required to make that claim in writing. He advised, in SNEA's opinion, some frivolous actions had been brought under the Whistle Blower Law. He suggested the language to which Ms. Tripple referred would help balance the concerns of state employees with the concerns of management. Ms. Angres also responded to Ms. Tripple's last question. She said she believed the language to which Ms. Tripple referred would help to reduce frivolous claims. She advised, in some past instances, an employee would "...file a claim that they blew a whistle and they want a hearing, but they never specify what was it they blew the whistle on or what was the action that was taken against them that was retaliatory." She suggested it was hard to defend a case when the claims which were the basis for the case were not specified. She advised the language under discussion would require an employee who claimed retaliatory action had been taken against him to specify what actions he had taken, the wrongdoing which was the basis for his actions and the retaliatory action which was taken against him. Mr. Gary Yoes, Local 1864, Service Employees International Union (SEIU), testified. He advised SEIU supported S.B. 357 and believed S.B. 357 was necessary in order to correct some flaws in the existing statute. He suggested everything should be done which could be done to eliminate anything which would deter a state worker from disclosing improper governmental activities. Mr. Yoes pointed out S.B. 357 both prohibited a hearing officer from ruling against a complaining party on the ground his complaint was not provided to the appropriate individual or entity and recognized the filing of a complaint against such a party with his licensing board as a form of reprisal. He contended those additions to current statute removed two impediments to reporting of improper governmental activity. Mr. Yoes stated SEIU asked that the committee support S.B. 357 and recommend its passage to the full Assembly. Chairman Bache closed the hearing on S.B. 357. Assemblyman Lambert disclosed one of her constituents had named her in a whistle blower action but she did not believe this created any "...fiduciary problem..." ASSEMBLYMAN LAMBERT MOVED TO DO PASS S.B. 357. ASSEMBLYMAN HARRINGTON SECONDED THE MOTION. THE MOTION CARRIED. Chairman Bache assigned S.B. 357 to Assemblyman Bennett for the purpose of making a floor statement. ASSEMBLY BILL NO. 657 - Revises provisions governing eligibility of certain gaming control agents for early retirement. Mr. Dennis Healy, Protective Association of Gaming Enforcement (PAGE), testified. He advised there were approximately six gaming control divisions and said A.B. 657 was directed toward the division referred to as the "enforcement division," which, he asserted, regulated Nevada's most important industry. Mr. Healy explained A.B. 657 would provide that agents of the Gaming Control Board who exercised enforcement powers pursuant to the statutes cited in A.B. 657 be "...included in early retirement for the same reason that any other police agency is included in early retirement." He stated, in 1993, the legislature passed legislation, set forth in NRS 281.0353, which expanded the police powers of the Gaming Control Board's enforcement agents to provide such an agent had the powers of a peace officer when, during the performance of his duties, a felony, gross misdemeanor or misdemeanor was committed or attempted in his presence or he had reasonable cause to believe a person had committed a felony or a gross misdemeanor out of his presence. He maintained the enforcement division was both entirely different from other divisions of the Gaming Control Board and similar to other police agencies in that its members were required to be POST certified, were required to meet the physical requirements which "...POST demands..." and carried weapons. Mr. Healey contended, to a large extent, the basis for permitting police officers to take early retirement was the apprehension they experienced in the performance of their duties and the mental stress which that apprehension caused. He advised agents of the enforcement division were first responders to crime scenes and performed many kinds of patrol but predominantly foot patrol of casinos. He explained such agents were required to guard and supervise crime suspects, apprehend and arrest crime suspects and conduct crime investigations. He stated every gaming crime was a felony and contended, when arresting a crime suspect, an agent was faced with the flight or fight syndrome and did not know what might occur when he attempted to handcuff the suspect. Mr. Healey introduced two Gaming Control Board agents, Mr. Wayne Gilliland and Mr. Bruce Gates. He said he, Mr. Gilliland and Mr. Gates would answer any questions the committee might have. Assemblyman Bennett asked whether the Gaming Control Board's agents were scheduled to appear for an eligibility hearing before the Public Employees Retirement System (PERS) later in the year. Mr. Healey indicated whether or not they appeared before PERS depended upon what happened with A.B. 657. Assemblyman Segerblom asked whether any gaming control agent had ever been killed in the line of duty. Mr. Healey replied in the negative. Assemblyman Neighbors asked what percentage of an enforcement agent's time was spent in the field. Mr. Gates responded, "...I believe the last time we went before PERS...we stated that approximately 55 or maybe even 60 percent of our time was for the enforcement part of the job..." He advised he had been a night shift supervisor for approximately seven years, during which time he spent nearly all his time patrolling casinos and conducting surveillance. Mr. Neighbors asked how many arrests an enforcement agent would make as compared to other kinds of police officers and suggested those arrests would be rare occurrences. Mr. Gates responded such arrests were not rare. He said, "...we probably average 500 or 600 arrests a year, but with 85 agents that's not a lot." Mr. Neighbors asked whether the enforcement agents had previously brought the issue of their early retirement before the legislature. Mr. Healy responded this was the first time the agents had done so. Assemblyman Wiiliams suggested what the legislature was being asked to do was revise the definition of "police officer." He asked whether, if that was done, enforcement agents would meet the same criteria as those individuals currently classified, by statute, as police officers. Mr. Healy replied A.B. 657 would revise the statutory provisions governing eligibility of enforcement agents for early retirement but said no change needed to be made to the definition of "peace officer." He indicated enforcement agents had possessed the status of peace officers for some time. Mr. Williams asked, "So, for the record, the rating analysis that is currently in place that other police officers, if you will, meet, these agents currently meet those analysis?" Mr. Healy replied affirmatively. Mr. Bennett referred to Mr. Gates' testimony that gaming control agents made between 500 and 600 arrests per year and asked how many of those arrests involved suspects who were potentially violent criminals. Mr. Gates replied he had been a peace officer in Nevada for 27 years, the last 15 of which he was a peace officer for the Gaming Control Board, and said he believed, during those last 15 years, he had been involved in some of the biggest cases of his career with respect to both the amount of money and the danger involved in those cases. He discussed a particular case in which he had been involved. Mr. Bennett indicated he wished to rephrase his last question and asked, of the 500 to 600 suspects gaming control agents arrested in a year, how many carried weapons. Mr. Gates replied he, personally, had arrested three individuals who were armed with weapons and had removed individuals from cars in which weapons were found. He advised agents had discovered shotguns while conducting searches pursuant to search warrants. He contended a great deal of danger was involved in gaming crimes. Mr. Bennett said he was attempting to ascertain the number or percentage of arrested suspects who were armed. Mr. Gates indicated he was unable to provide that information but said, "...I don't think it's probably that high." Mr. Gilliland asked permission to respond to Mr. Bennett's question. He said he had been a peace officer for 30 years, in both California and Nevada, and indicated Mr. Bennett's question was difficult to answer. He stated anyone about to be arrested was potentially dangerous and the potential for danger was inherent in every arrest. Ms. Tripple referred to the language "earned at least 2 years of creditable service" contained in both line 12 and line 17 on page 1 of A.B. 657 and said she assumed that language pertained to dangerous service. She said, "...but the person must work for...the Gaming Control Board for 15 or more other years, so do we just hinge this early retirement, at age 50 or 55 or something, on action that happened in (employment) when they were in their 20's?" Mr. Healy replied every year an employee spent in the employ of the Gaming Control Board was a year of creditable service "...but they're talking in terms of somebody who had since retired. At least that's the way I read it." Ms. Tripple asked how long an enforcement agent would have to serve in a dangerous position in order to be eligible for early retirement. Mr. Healy replied he believed, after an employee of the state of Nevada had been employed by the state for five years, the employee's retirement was vested. Ms. Tripple qualified her last question by adding "in this special category." Mr. Healy responded, "The specialty on this particular category is it just lowers the retirement age. It doesn't extend or define any more the age for when you become vested." Ms. Tripple pointed out enforcement agents were requesting to be allowed early retirement on the basis their work was particularly dangerous and said she was interested in knowing how long such an agent would have to perform work which was particularly dangerous in order to qualify for early retirement. Mr. Healy replied, if enforcement agents were granted early retirement under the same conditions as policemen and firemen, they would be required to have 10 years of service in order to be eligible to retire at age 55 or 20 years of service to retire at age 50. Assemblyman Harrington pointed out policemen and firemen were not required to perform front line service for the entire period they must serve to qualify for early retirement but could qualify even if they rose to administrative positions. He asked whether that situation would apply to gaming control agents as well. Mr. Healy replied it would. Mr. Harrington asked whether gaming control agents would have to serve in dangerous positions for two years in order to be eligible for early retirement. Mr. Healy replied affirmatively. Chairman Bache referred to Mr. Healy's testimony that, in 1993, the legislature had given gaming control agents the status of peace officers and asked why the enforcement agents had not applied to PERS for coverage under the police and firefighters early retirement plan at that time. Mr. Healy replied it was decided to wait until the subsequent legislative session and make that application to the legislature. Chairman Bache indicated he would rephrase his question. He asked why, when the law was changed in 1993, the enforcement agents chose to pursue obtaining early retirement through the legislature rather than pursuing it through PERS. Mr. Healy replied the decision to do so was made after consulting with PAGE. Mrs. Lambert asked whether, when the enforcement agents made the decision to come before the legislature with their request to be allowed eligibility for early retirement, they were aware they might be setting a precedent for other groups to make the same request and whether they considered they might be doing so when making their decision. Mr. Healy replied the enforcement agents did not consider anyone else or any precedents they might be setting in making their decision. Mr. Healy addressed Mr. Bennett's question of how many of the suspects arrested by gaming control agents were armed. He indicated the percentage of armed suspects arrested by gaming control enforcement agents would be approximately the same as the percentage arrested by police officers. He asserted an enforcement agent's job was potentially more dangerous than a police officer's because each crime in which an enforcement officer was involved was a felony. He suggested, based on the fact a felony was a greater crime than either a misdemeanor or a gross misdemeanor, those who committed felonies were more subject to the flight or fight syndrome (than those who committed misdemeanors or gross misdemeanors). He proposed an individual facing a misdemeanor or gross misdemeanor charge had less desire to attack or to resist a police officer than one facing a felony charge. Mr. George Pyne, Executive Officer, Public Employees Retirement System, testified by reading from prepared text (Exhibit C). He said PERS' board had not had an opportunity to arrive at a position on A.B. 657 but the board's staff would recommend that it oppose A.B. 657. Mr. Pyne contended A.B. 657 treated the position of enforcement agent for the Gaming Control Board differently from the manner in which every other public employee position was treated and would establish a dangerous precedent. Mr. Pyne said, in response to Mr. Williams' earlier question, A.B. 657 "...would carve out an exception, and they would not have to go through that process..." Mr. Pyne advised PERS' board had determined, as of 1991, the position of enforcement agent did not meet the criteria for inclusion in the Police and Firemen's Retirement Fund. He stated, prior to specific criteria for inclusion in the Police and Firemen's Retirement Fund being established, many quasi-police/fire groups appeared before the legislature, each legislative session, to request inclusion in that fund and some had done so even since those specific criteria were established. He advised, as a result, in the 1985 legislative session, the legislature directed PERS to conduct a comprehensive study and to develop a rational and equitable basis for determining which public employees were to be included in the Police and Firemen's Retirement Fund. He provided a copy of the written study together with a copy of Senate Concurrent Resolution 46 of the 1985 session and a copy of the relative statutes which existed prior to 1987 (Exhibit D, collectively). Mr. Pyne also provided a copy of a document entitled "Application Submitted for `Police Officer' Coverage" together with a copy of a document entitled "Police Officer Position Rating for P/F Coverage" (Exhibit E, jointly). Mr. Pyne advised the study concluded new statutory language should be developed to establish criteria by which to evaluate police/fire positions and concluded the retirement board should establish procedures for evaluating positions requested to be included in the Police and Firemen's Retirement Fund. Mr. Pyne provided a document entitled "Approved Police/Fire State Positions" (Exhibit F). Mr. Pyne said, since the legislation (which resulted from the study) was passed in 1987, PERS board had reviewed more than 700 positions to determine their eligibility to be included in the fund. He declared all positions reviewed to determine such eligibility were reviewed using the same criteria. Mr. Pyne explained the procedure used to review positions for eligibility, which he contended was consistently applied, and said PERS board did not believe the Gaming Control Board's enforcement agents should be exempted from that process. Mr. Williams asked whether the Gaming Control Board's enforcement agents met the "...same rating analysis..." as other police officers. Mr. Pyne replied, if A.B. 657 was passed by the legislature, the enforcement agents would have to go through neither the application process for inclusion in the Police and Firemen's Retirement Fund nor the rating evaluation process. He advised PERS' board had previously determined the enforcement agents did not meet the criteria for inclusion in the fund. Mr. Bennett asked whether the gaming control agents had approached PERS to establish a date on which to reapply for inclusion in the fund. Mr. Pyne replied the board had received correspondence from the gaming control agents requesting an application. He advised an application was sent to them but had not yet been returned, completed, to PERS. He said, when the completed application was returned, it would be evaluated and a recommendation would be made to the board. Mr. Bennett asked whether, in light of those positions already approved for inclusion in the Police and Firemen's Retirement Fund and the new duties gaming control agents were given in 1993, the gaming control agents would have a better chance of being approved for inclusion in the fund than they had when they applied for inclusion previously. Mr. Pyne said he was unable to answer Mr. Bennett's question. Mrs. Segerblom asked what "...promotional police/fire state positions..." meant. Mr. Pyne said, in doing the study which the legislature directed be done, positions were reviewed in an attempt to determine whether their duties met certain requirements pertaining to physical capability, emotional fortitude and protecting the public from physical harm. He suggested the position of a front line peace officer met those requirements, however, if such a peace officer was promoted to an administrative position, his administrative position would not meet those requirements and, therefore, if an individual served two years in a front line position and was subsequently promoted within the chain of command of a police or fire department, he was allowed to retain his inclusion in the Police and Fireman's Retirement Fund. Mrs. Segerblom said, "Looking back on this prisons department -- you mean the cook? Now explain that to me." Mr. Pyne advised the minimum requirement for inclusion in the Police and Firemen's Retirement Fund was that an individual must be a peace officer. He said, in addition to that minimum requirement, there were other requirements. He indicated, within the Department of Prisons, the approved position for inclusion in the fund was that of correctional officer. He explained a correctional officer was primarily responsible for guarding and supervising prisoners. He said, technically, anyone who worked in a prison was a peace officer but the only prison employees who could be included in the Police and Firemen's Retirement Fund were those whose job descriptions required them to have "...knowledge of... guarding and supervision of suspects." He advised, therefore, if an individual served two years as a correctional officer and thereafter transferred to or was promoted to the position of cook, he would remain in the fund. Mrs. Segerblom asked whether an individual who was a prison cook for 20 years would be included in the fund. Mr. Pyne replied he would not unless he had served at least two years as a correctional officer. Ms. Tripple observed individuals who were eligible for early retirement paid into the retirement fund for fewer years and received retirement benefits for more years than did those individuals who were not eligible for early retirement and asked, "Now, what's that going to do to the retirement pool?" Mr. Pyne replied members of the Police and Firemen's Retirement Fund paid much higher rates of retirement contributions than regular members of PERS. He advised, under the employer paid program, the contribution rate for members of the Police and Firemen's Retirement Fund was approximately 27 percent while the contribution rate for regular members of PERS was 18.22. He pointed out the fiscal note on A.B. 657 indicated the cost to the Gaming Control Board of allowing its enforcement agents to be eligible for early retirement would be approximately $120,000 per year. Mr. Robert Hadfield, Nevada Association of Counties, testified. He advised the Nevada Association of Counties supported PERS being administered in a uniform manner. He said he believed A.B. 657 was before the committee inappropriately and contended it would set a precedent and would "...take us back to years prior to 1987, when we finally got this...straightened out so that everyone would know what the process was and would know that they would be treated uniformly and with equity in that process..." He urged the committee to reject A.B. 657. Mr. Thomas Grady, Nevada League of Cities, testified. He said the Nevada League of Cities wished to go on record as supporting PERS and opposing the passage of A.B. 657. Mr. Andy Anderson, Nevada Conference of Police and Sheriffs, testified. He indicated he was also appearing on behalf of Mr. Mark Balen who represented the Professional Firefighters of Nevada. He provided a written communication from Mr. Balen (Exhibit G). He advised the Nevada Conference of Police and Sheriffs and the Professional Firefighters of Nevada opposed A.B. 657 and supported the current process used to determine eligibility for early retirement. Chairman Bache asked whether Mr. Anderson was a member of the Police and Firemen's Retirement Fund Advisory Committee. Mr. Anderson replied he was not. Chairman Bache asked whether Mr. Balen was a member of the Police and Firemen's Retirement Fund Advisory Committee. Mr. Anderson responded affirmatively. Chairman Bache closed the hearing on A.B. 657. Chairman Bache called for a motion to approve the minutes of the committee's meetings through May 15, 1995. ASSEMBLYMAN HARRINGTON MOVED TO APPROVE THE MINUTES OF THE COMMITTEE'S MEETINGS THROUGH MAY 15, 1995. ASSEMBLYMAN TRIPPLE SECONDED THE MOTION. THE MOTION CARRIED. There being no further business to come before the committee, Chairman Bache adjourned the meeting at 10:05 a.m. RESPECTFULLY SUBMITTED: Sara Kaufman, Committee Secretary APPROVED BY: Assemblyman Douglas A. Bache, Chairman Assemblyman Joan A. Lambert, Chairman Assembly Committee on Government Affairs June 6, 1995 Page