MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session March 15, 1995 The Committee on Judiciary was called to order at 8:10 a.m., on Wednesday, March 15, 1995, Chairman Anderson presiding in Room 332 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Mr. Bernie Anderson, Chairman Mr. David E. Humke, Chairman Ms. Barbara E. Buckley, Vice Chairman Mr. Brian Sandoval, Vice Chairman Mr. Thomas Batten Mr. John C. Carpenter Mr. David Goldwater Mr. Mark Manendo Mrs. Jan Monaghan Ms. Genie Ohrenschall Mr. Richard Perkins Mr. Michael A. (Mike) Schneider Mrs. Dianne Steel Ms. Jeannine Stroth GUEST LEGISLATORS PRESENT: None STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Patty Hicks, Committee Secretary OTHERS PRESENT: Judge James Mancuso, Washoe County Justice Court, Incline Village Ms. Mary E. Henderson, Lobbyist, Washoe County Mr. Mike Langton, Nevada Trial Lawyers Association Deputy Attorney General Louis Ling, Attorney General's Office Chairman Anderson announced testimony will be heard on A.B. 206. ASSEMBLY BILL NO. 206 - Revises provisions governing existence of commissioner townships for civil marriages. In support of A.B. 206 Ms. Mary E. Henderson, Lobbyist, Washoe County, testified and letters of support from wedding chapels and chamber of commerce were distributed, attached as (Exhibit C). She was accompanied by Judge James Mancuso, Washoe County Justice Court, Incline Village. A.B. 206 is a bill unique to Washoe County. Due to population growth at Incline Village, Lake Tahoe is considered a marriage commissioner township. It precludes the justice court from performing civil marriages. The judge has 20 free marriages he can perform per year. The board of county commissioners reviewed the issue for cost effectiveness of assigning a marriage commissioner at Lake Tahoe. This will give people an option of whether to be married in a wedding chapel or by a justice of the peace. It was deemed not cost effective to place a commissioner at the lake. They would like to have the population cap increased to allow the justice court to continue to provide marriages. Currently, in March, the judge is already well into his free allocation of civil marriages. They would desire the bill to become effective upon passage. Judge James Mancuso, Washoe County Justice Court, Incline Village, testified he has been the justice of the peace for 15 years. Although the workload has increased, he is not a full-time justice of the peace. The purpose of the marriage commissioner was to eliminate performance of civil marriages by the two justices of the peace in the two major counties, allowing more time for their judicial duties. He felt it was never the intent for a part-time court not to be able to perform weddings. The proposed threshold is based on 7,500 registered voters. It will only effect Incline Township and no others in Washoe County. Mrs. Steel asked if it would be better suited if you said number of weddings performed in the year instead of population amounts as far as reaching the threshold. Judge Mancuso replied it may affect other townships in Clark County. Since demographics of population is published every ten years, Chairman Anderson remarked the voter registration number can be readily verified. Mr. Humke mentioned voter registration method of establishing population cut offs is clearly unfair. Mrs. Henderson advised comprehensive planning of population estimates is performed every year in cooperation with the state demographer. The official census is every ten years. Mr. Humke suggested amending the statute using census estimates and projections and not use voter registration numbers. There being no further testimony on A.B. 206, Chairman Anderson closed the public hearing on the bill. Chairman Anderson appointed Mr. Humke to work as a subcommittee on A.B. 206 in cooperation with Mr. Neilander in developing an amendment. ASSEMBLY BILL NO. 40 - Revises provisions that prohibit employers from taking certain adverse actions against employees who serve as witnesses. Chairman Anderson requested Ms. Buckley to present A.B. 40 subcommittee report to committee. Ms. Buckley reported the subcommittee developed two recommendations for consideration: 1) only expand coverage to administrative as well as judicial hearings; and 2) reworked A.B. 40. The main concern of A.B. 40 was subsection 3 which prohibited employers from taking retaliatory action. Retaliatory action included denial of adequate personnel to perform duties, frequent replacement of staff, frequent or undesirable changes in work area, etc. The second proposed version for the entire committee deleted these hard to define proposed retaliatory actions and prohibits instead demotion, pay reduction, deny promotion, suspension, harassment, intimidation actions against employee for his truthful testimony. It adds at the bottom of section (b): this section does not prohibit a taking of any of the above stated actions for non-retaliatory reasons, such as legitimate business reasons. The subcommittee was not able to reach a definite conclusion and proposed two versions of an amendment for the committee to consider. Mrs. Steel expressed desire to exclude parties to the action in the bill which was not addressed by the subcommittee. Ms. Buckley advised that the subcommittee did not consider this concern. She personally has no problem excluding parties to a lawsuit in an employment case. This was initially an attempt to protect witnesses from retaliation. Mr. Humke advised the Humke-Carpenter amendment would expand the existing law to administrative proceedings and provide for truthful testimony. The Buckley- Perkins amendment would create a cause of action for every employee in the state, public and private sectors. This is a major leap and the cost prohibitive. Mr. Humke noted this section was taken from the state's whistle blower's statute which protects state employees from certain job actions by employers. It is wrong to extend the scope of this bill to the private sector. Chairman Anderson commented as privatization becomes more of a reality, the public has a vested right to know what is going on with tax dollars. There is a greater need for public protection in today's society. Ms. Steel suggested deletion on p. 1, l. 7, "who is a witness or" to insure witnesses are not volunteering to be involved in a lawsuit. We do have a whistle blower statute which is only for state employees. Mr. Humke stated that in an age when we supposedly have increasing privatization as defined as governments contracting with private businesses, he would be happy to amend the state whistle blower's statute to include those contractors when working within the scope of the contract to make their employees subject to the whistle blower statute. Mr. Humke conferred with two major business groups in the state privately who indicated they had major concerns. Ms. Stroth agreed with Mr. Humke as there was considerable opposition from the Nevada Association of Employers, Clark County, Metro, and Nevada Manufacturers Association in the first hearing. Mr. Sandoval commented under constructive termination theory employees still do have a cause of action against an employer. All concerns contained in the amendment are already met because someone can indeed bring a cause of action against their employer on a constructive termination theory. For those reasons he could only support the amendment as stated by Mr. Humke. Research staff distributed a proposed amendment to N.R.S. 50.070, attached as (Exhibit D). Mr. Neilander was requested to answer the question relative to administrative hearing. Mr. Neilander responded not all agencies have automatic subpoena power. It depends on their enabling legislation. Certain agencies would have that and some would have to go through Nevada Administrative Procedures Act to get that. It would depend on their relationship with the Attorney General's Office. Keep in mind also certain agencies are not subject to the administrative procedures act. It will vary on an agency by agency basis. Mrs. Ohrenschall asked if it was known how time-consuming it is to obtain that power or how much it would cost. Deputy Attorney General Louis Ling advised the boards in the occupational licensing area, for example, that do not have subpoena power in their enabling statutes and have to come to the legislature to get authority to do this. Mrs. Steel explained her initial amendment was to keep parties from being covered by this action. Chairman Anderson proposed inserting after "appear as a witness", "excluding named parties of judicial or administrative proceeding." Mr. Humke and Mr. Carpenter wished to formally adopt the above in their proposed amendment. ASSEMBLYMAN BUCKLEY MOVED TO AMEND AND DO PASS THE BUCKLEY-PERKINS AMENDMENT INCLUDING THE AMENDMENT OF MRS. STEEL TO INCLUDE THE "EXCLUDING NAMED-PARTIES" CLAUSE TO A.B. 40. ASSEMBLYMAN BATTEN SECONDED THE MOTION. Under discussion, Ms. Buckley repeated this bill is necessary to protect employees who testify truthfully at judicial or administrative proceedings. Under the present law that employee cannot be fired for their truthful testimony, but they can be demoted, wages reduced and nothing could be done about it. She agreed with Mr. Sandoval that it would be a constructive discharge, but Nevada is an at will state. There would not be a cause of action based on that discharge unless there was some sort of policy exception supporting that. She believed a balance has been struck by allowing an employer to take any of these reasons for legitimate business reasons. What is being targeted is retaliatory conduct for telling the truth. THE MOTION FAILED. (SEVEN MEMBERS VOTED FOR, AND SEVEN MEMBERS VOTED NO.) ASSEMBLYMAN CARPENTER MOVED TO AMEND AND DO PASS THE HUMKE-CARPENTER AMENDMENT INCLUDING THE AMENDMENT OF MRS. STEEL TO INCLUDE THE "JUDICIAL OR ADMINISTRATIVE PROCEEDINGS" TO A.B. 40. ASSEMBLYMAN HUMKE SECONDED THE MOTION. Under discussion Mr. Batten requested clarification of the motion. Chairman Anderson restated the original language of N.R.S. 50.070, subsection 1(b), in any court to say "judicial or administrative proceedings", and after "his truthful testimony" insertion of "as a consequence of his service. . ." are the amendments to the drafted proposal. Mr. Humke confirmed the Chairman's statement is correct. Mrs. Steel pointed out the purpose of the bill was to include administrative proceeding. This amendment accomplishes this and urged support of the motion. THE MOTION CARRIED. (ASSEMBLYMEN BATTEN, GOLDWATER, PERKINS, BUCKLEY, AND ANDERSON VOTED NO, ALL OTHERS VOTED YES.) Mr. Humke was asked to handle A.B. 40 on the floor of the Assembly. Chairman Anderson drew attention to the committee room minute book for perusal of members and asked for approval of January, 1995 minutes. ASSEMBLYMAN GOLDWATER MOVED TO APPROVE JANUARY, 1995 MINUTES. ASSEMBLYMAN PERKINS SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT. There being no further business to come before the committee, Chairman Anderson adjourned the meeting at 10:19 a.m. RESPECTFULLY SUBMITTED: Patty Hicks, Committee Secretary APPROVED BY: Assemblyman Bernie Anderson, Chairman Assemblyman David E. Humke, Chairman Assembly Committee on Judiciary March 15, 1995 Page