MINUTES OF THE SENATE COMMITTEE ON GOVERNMENT AFFAIRS Sixty-eighth Session January 23, 1995 The Senate Committee on Government Affairs was called to order by Chairman Ann O'Connell, at 1:30 p.m., on Monday, January 23, 1995, in Room 227 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Senator Ann O'Connell, Chairman Senator Randolph J. Townsend, Vice Chairman Senator Jon C. Porter Senator William J. Raggio Senator William R. O'Donnell Senator Dina Titus Senator Raymond C. Shaffer STAFF MEMBERS PRESENT: Dana Bennett, Senior Research Analyst Tanya Morrison, Committee Secretary OTHERS PRESENT: David Pennington, Attorney Advisor, Nevada Office of the Military Dean Heller, Secretary of State, State of Nevada Dale Erquiaga, Chief Deputy, Secretary of State Ande Engleman, Lobbyist, Nevada Press Association, Inc. Terry Lamuraglia, Lobbyist, Clark County Frank Barker, Las Vegas Metropolitan Police Department Chairman O'Connell opened the meeting with Senator Raggio who asked for committee introduction of bill draft requests. She explained when a request is made in this committee it has been customary to have the individual requesting the bill draft explain its intent to the committee members. Senator Raggio's first request was for Bill Draft Request (BDR) 23-351. BILL DRAFT REQUEST 23-351: Prohibit payment for overtime to members of state boards and commissions. He explained this BDR is a recommendation of the interim committee which dealt with overtime pay for state employees on boards of commissions. He stated one of the recommendations resulted in this BDR which would prohibit members of state boards and commissions, for the most part, from working overtime and thereby being entitled to overtime pay. SENATOR RAGGIO MOVED FOR COMMITTEE INTRODUCTION OF BILL DRAFT REQUEST (BDR) 23-351. SENATOR O'DONNELL SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. ***** Senator Raggio introduced BDR R-95. BILL DRAFT REQUEST R-95: Urge Congress to propose amendment to U.S. Constitution allowing states to propose amendments to U.S. Constitution. He explained this BDR urges congress to propose an amendment to the United States Constitution which would allow 3/4 of the states to amend the constitution without the necessity of a constitutional amendment. He pointed out this is a movement which is progressing in this country and most state legislatures have been asked to consider proposing this BDR. He stated it has its roots in the Virginia Legislature, but this was designed to avoid the concern that many have that the process of amending a constitution which now requires a constitutional convention. He added whether this is rightly or wrongly perceived it could result in a constitutional convention which could then go on with other issues and not be confined to this particular issue. He told the committee this BDR would propose a new method of amending the United States Constitution. SENATOR RAGGIO MOVED FOR COMMITTEE INTRODUCTION OF BDR R-95. SENATOR O'DONNELL SECONDED THE MOTION. THE MOTION CARRIED. (SENATOR TITUS VOTED NO.) ***** Chairman O'Connell opened the hearing on Senate Bill (S.B.) 57. SENATE BILL 57: Prohibits member of state militia or his dependents from receiving workers' compensation under certain circumstances. (BDR 36-866) David Pennington, Attorney Advisor, Nevada Office of Military, told the committee the reason the National Guard supports this bill is because S.B. 57 is intended to prevent a national guard member from receiving a double recovery for an illness or injury sustained in the line of military duty. He explained it is necessary to understand how the National Guard is organized in order to understand how double recovery can occur. He stated the National Guard is a state militia and in that capacity they are available to the Governor for any state of emergency such as riots or fire. He added the National Guard is also a federal military reserve force available to the President and the Department of Defense as a reserve for the federal military. Mr. Pennington stated unlike the other federal reserve forces such as the army reserve or the air force reserve, the national guards of the various states are all trained under the auspices of the governor in the various states. He explained that means when the national guard goes onto federal training duty the orders are signed by the governor and not the President or under his authority. Mr. Pennington stated because all national guard training is for a federal mission, it is funded 100 percent by the federal government and as would be expected, when a guard member is injured or is found ill while performing military duties, he is fully compensated for that illness or injury by the federal government. He explained this is where the problem comes into effect with double recovery. He told the committee when some guard members were injured during their federal training and after having been fully compensated for that injury by the federal government, they would also file a claim with State Industrial Insurance System (SIIS) for the same exact injury. They were being routinely compensated by SIIS for these injuries. He stated this resulted in a double recovery. Mr. Pennington gave an example. He told the committee in 1992 an Army National Guard lieutenant received a 60 percent disability from the federal government for a service-related illness. He stated the lieutenant did not try to deceive anyone, but he filed a claim with the state and advised them up-front that he had been fully compensated for this illness by the federal government. Mr. Pennington told the committee, with full knowledge of the federal pension, SIIS granted him dual compensation under Nevada Revised Statute (NRS) 412.142. He stated the Office of the Military took exception to this and the SIIS decision was appealed to an appeals officer. The appeals officer agreed with the Office of the Military there should not be double compensation for military-related injuries. Mr. Pennington quoted part of the appeals officer's conclusion: Duty under Title 32, which is Title 32 of the United States Code, is not service to the state. Since the purpose of such training was to fulfill the guard's federal mission as a reserve component of the U.S. Armed Forces. There is no statutory authority under NRS [Nevada Revised Statutes] 412.142 which indicates the state legislature intended to provide duplicate state benefits for guardsmen already eligible and receiving federal benefits. Mr. Pennington told the committee this lieutenant did not receive his double compensation, but it has happened in the past. For that reason he asked the committee to adopt the reasoning of the appeals officer and support this bill. Senator Porter asked what the national guard's plans for notification were and would they notify everyone properly and within a certain amount of time. Mr. Pennington stated a letter would be issued to all personnel as soon as this bill is passed. Senator O'Donnell gave a scenario of an individual who is part-time with the national guard and gets injured while on duty with the guard and perhaps loses an arm. He stated this individual is a computer programmer in his civilian profession and with the loss of an arm would be unable to perform his job duties. He told Mr. Pennington if the individual is only compensated for 50 percent by the federal government and then the state tells him he is 65 percent disabled, passing this bill would preclude that individual from getting a 65 percent disability when, in fact, he would only end up with a 50 percent disability. Mr. Pennington explained with Senator O'Donnell's example that would be true, but he stated the argument is not so much whether he should be compensated according to the state formula. He is not in the service of the state, he is performing federal training and should be held to the same rules and compensation to which other reservists are held. He told the committee a member of the Army Reserve or the Air Force Reserve would be held to that federal compensation, and he stated it seems fair and fitting that national guard members in their capacity as a member of the reserve force should have the same compensation. He stated if the state wishes to compensate over and above what the federal government allows, it is certainly at this committee's and the legislature's discretion. He added, in the interest of fairness, the national guard are in no better or worse position than a member of the Army Reserve or the Air Force Reserve. Senator O'Donnell stated he understands Mr. Pennington's point, but he is interested in someone who may be unfairly treated because he volunteered to serve his state in the national guard; and because he did that and was injured on the weekend, he loses his right to go back to SIIS to get some kind of fair and just compensation. He added, that individual may not be able to work for the rest of his life. Mr. Pennington stated there is a distinction between federal training and active federal duty and state service. He explained when the Army National Guard mobilized for riots in California they were put on active duty by the Governor for that. He stated they were not in a federal status at that time. He explained had any one of the reservists been injured they would have been entitled to the workers' compensation according to the state formula. Mr. Pennington pointed out this is not what this bill is addressing. He stated it addresses federal training that is performed under either Title 10 or Title 32 of the United States Code and he stated that is fully funded by the federal government. Chairman O'Connell asked Mr. Pennington if he could explain to the committee under what grounds SIIS accepted the claim. Mr. Pennington stated the original hearing officer did not draw a distinction between military duty that was performed at the direction of the Governor and military duty that was in the service of the state. He explained under Title 32 of the United States Code, all training, even federal training is done at the direction of the Governor, but it is federal authority and federal money that provides that training. He explained that is due to the Militia Clause of the United States Constitution. He stated all military training is done by the various states. He told the committee when they raised the distinction there is a difference between performing duty at the direction of the Governor and performing duty in the service of the state, which is what the National Guard believes this workers, compensation statute was entitled to cover, then the appeals officer agreed with them. Chairman O'Connell closed the hearing on S.B. 57. She opened the hearing on Senate Bill (S.B.) 83. SENATE BILL 83: Eliminates fees for copying certain documents. (BDR 18-929) Dean Heller, Secretary of State, State of Nevada, addressed the committee and introduced Kateri Cavin, Deputy Attorney General, Secretary of State's office. He stated he had told the committee this bill is a minor change. He explained this amends the current requirement to allow them to stop charging fees for anything being copied that is under 16 pages. He stated this would apply to the press, other agencies in the state, organizations in the state and individuals asking for copies of information. He explained a lot of this information is only four or five pages and they are required now to send a letter asking for a small amount for the copying fee. Mr. Heller presented the committee with amendments to the bill (Exhibit C). He explained the amendments to the committee. Chairman O'Connell asked for the amount of the current fee. Dale Erquiaga, Chief Deputy, Secretary of State, told the committee the fees vary depending on the type of request. He explained if the request is for a copy of the database on tape, the cost would be $25 or $50 depending upon which database. If they are asking for a copy of the microfilm it is approximately $50. He emphasized to the committee if they charged the per page fee it would be in excess of $3,000 if they got a microfilm roll and in excess of $110,000 for a copy of the computer database, if charged by page. Mr. Erquiaga stated that is why they set a flat fee. He explained this would be even cheaper, because it would be the cost of a floppy disk or a tape and the personnel time involved. Mr. Heller explained section 2 of the amendment which creates the office of the elections division within the Secretary of State's office. He stated this particular division was created in 1989 by the finance and ways and means committee and he pointed out in the NRS the office does not exist. He told the committee he would like to have the budget match the statutes and hereby create the elections division so it can perform its duties under NRS 293.124. Mr. Erquiaga explained section 3 of the proposed amendments to the committee. He told the committee what this definition would do is make the secretary of state's records subject to a records retention schedule. He stated that must be approved by a committee that includes representatives of the executive branch of government as well as the general public so they will not be suddenly destroying records. He maintained their office would allow the archives to destroy some of the ministerial documents, like the notices of ministers and deeds that are no longer in effect and have no historical value. He emphasized they could destroy them after 6 years or 10 years, whatever time limit is set. Mr. Heller explained section 4 of the proposed amendments. He stated this would give the Office of the Secretary of State the option of retaining independent counsel. He told the committee the wording in this proposal is the same wording which already exists in the Secretary of State's Office which deals with the securities division. He emphasized his office already has the option to use independent counsel when they deal with the security division so they would like to expand the wording so it meets with the other divisions within that office, especially the elections division. He explained some of the issues facing the election division can be contentious and it would be more productive for the division to have their own legal counsel to help in meeting with some of the problems in that division. Mr. Heller stated this would allow the division to be a little more independent. He told the committee there are several entities within the state which have their own legal counsel, such as the university system, the State Industrial Insurance System (SIIS), state insurance and the Governor's Office. He maintained the Secretary of State's Office is not dissatisfied with the help and services they are receiving from the Attorney General's Office, but they are asking for the option to retain legal counsel when, in fact, the Secretary of State's Office deems it necessary in their office to do so. Chairman O'Connell asked for an example in which the Secretary of State's Office would need to retain their own legal counsel. Mr. Heller stated there have been instances brought before this committee in the past, but one example he explained to the committee was when a bill was brought before the legislature pertaining to the terms in which a governor can serve. At that time, the present secretary of state told the committee it was the position of that current secretary of state that it was not legal, but the attorney general stated otherwise. Mr. Heller explained it is the responsibility of his office to regulate election laws, which makes it difficult to take an independent position when the legal counsel comes from an entity within the government who has a differing opinion. He told the committee he would like the opportunity to obtain legal opinions under situations such as this one. Senator Porter asked why the bill mentions 16 pages and how they came up with that amount. Mr. Erquiaga stated the average size of a campaign contribution report is 15 pages or under. He explained that is the most common document requested from the elections division. He pointed out this amendment would allow those copies to be more widely available to the general public for free. Senator Porter asked how much it costs to send these documents at this point. Mr. Erquiaga told the committee the amount must be prepaid before the documents are mailed, no matter how small the amount. He stated because of the statute now, the election division will not provide a service prior to receipt of the cash. Mr. Erquiaga explained section 5 of the amendment which deletes a statute in chapter 225 of the NRS. He pointed out the statute of concern is an old statute from 1865 which gives to the secretary of state custody of all state contracts, deeds and conveyances. He told the committee as a practical matter over the ensuing 100 years, duplicate statutes have appeared and now contracts are filed with the budget office and deeds are now filed with the Division of State Lands. He emphasized as a practical matter no deed or conveyance has been filed with the Secretary of State's Office in anyone's recent memory, state lands holds them all. He pointed out his office is still required to bind them in well-bound books and only the secretary of state or his deputy may carry them on his person. He estimated one out of ten contracts actually gets to the Secretary of State's Office and the state has been accused in lawsuits of failure to comply with this statute because the contracts do not reside in the Secretary of State's Office; when in fact, it resides in the budget office and then moves to the state archives for a period of 6 years from the last date of the contract. Mr. Erquiaga reiterated this amendment would give custody of records to the entity where they belong. He explained the archives used to be housed within the Secretary of State's Office, which has changed, and they are trying to keep pace with these changes by changing the statute. Chairman O'Connell asked if there is a penalty if these contracts are not in the Secretary of State's Office. Mr. Erquiaga stated there was no penalty for that. Senator Porter asked about the history in section 2 regarding the election division. Mr. Heller explained the election division was run by one person during the 1970s who is currently still there, but the division was not created until 1989. He pointed out there was only one person doing the work of the election division; so, in 1989, the secretary of state noticed the work load was increasing and at that point created this division and added the new elections individual. The individual in charge of the elections division now controls and handles the office, so it was actually in 1989 when the elections deputy was created. Mr. Heller told the committee his office would like to add this person into the statutes. He emphasized there is no existing statute regarding the elections deputy and therefore the position could be deleted without legislation. Mr. Erquiaga explained the statute which is referenced, NRS 293.124 is one in which this committee added to the secretary of state's duties in 1993. He reiterated the secretary of state has always been the elections individual and this statute would declare the secretary of state to be the chief elections officer with responsibilities to execute and enforce the law. He pointed out to the committee members this has been an evolving process in recent years to actually codify that as a role. Senator Porter stated the Secretary of State's Office has not added another person on staff with this amendment and asked for clarification of this. Mr. Erquiaga stated the elections deputy was added in 1989, but that individual was already on staff at that time, therefore they are not adding any new individuals. Ande Engleman, Lobbyist, Nevada Press Association, spoke in favor of S.B. 83. She told the committee she agrees with the deleting of the filing of the contracts since that law is not enforced at this time. She stated she also supports the creation and codifying of the elections division. Ms. Engleman pointed out the elections division is probably one of the best personal relations branches of government which the executive branch has. She explained the amount of information average citizens and the press can get out of the elections department to relay to the public is unbelievable. She emphasized the Nevada Press Association supports the removal of a fee for elections information up to 15 pages. Chairman O'Connell closed the hearing on S.B. 83 and opened the hearing on Senate Bill (S.B.) 55. SENATE BILL 55: Revises provisions governing fees charged by constables. (BDR 20- 926) Frank Barker, Las Vegas Metropolitan Police Department, stated he also represents Sheriff Jerry Keller. He told the committee their interest in this bill at the current time is because the sheriff of Clark County was appointed constable of Las Vegas township by action of the county commission in early January or late December. He explained this bill was submitted by the constable of Las Vegas at that time, Bill Nolan, and the purpose of the legislation is to recover costs associated with providing a service. In the past the charges would be controlled by the county commission. He told the committee, currently NRS 258.170 limits the Las Vegas Constable's Office's ability to serve the public by not allowing the constable to charge for services not mentioned in the chapter. He defined these services to the committee, which included the actual typing of the request for judgements for evictions and other writs of judgement. He explained when these services are available they are usually not in the vicinity of the courthouse which causes inconveniences to individuals seeking these services. He told the committee most of these requests come from landlords, but they do get requests from citizens who do not understand the process do not have the means to get the documents typed. He emphasized the constable's office also receives many requests to do research or to provide information to landlords which is not required; but is a service they provide and it can prove to be time-consuming. He explained this information normally requested is along the lines of how often individuals are evicted from other locations, which is valuable information for a landlord to know. Mr. Barker told the committee due to the time required in typing and the research by the constable's office, they would have to add personnel to provide this service. He reiterated the passage of S.B. 55 would allow the Las Vegas Constable's Office to provide the service to those who need it, while recovering the associated costs without putting a burden on the taxpayers who do not use this service. He stated the individuals using these services should be the ones paying the fees. He explained in most townships the constable's serve the papers and the constable keeps the fee associated with serving the papers. He pointed out in the Las Vegas township, at the present time, those fees go into the county general fund and the deputy constables are paid an hourly wage. He stated for the services mentioned, the fees are meant to recover the cost of operating the constables office, including the wages. Chairman O'Connell asked Mr. Barker to clarify why the constable's office needs to be paid, in addition to the wages they already receive, since they already have individuals being paid for providing these services. Mr. Barker explained when an individual requests research for audio searches, someone from his office has to stop their duties to do the search. The police department charges $30 per hour for searches on audio tapes and the search of the computer system costs $100 per hour, and this is done in hourly increments. He reiterated the individuals who do these searches are taken away from the job they are being paid to do. They must stop their work, do the searches and retrieve the information requested; so he feels they should be compensated for this extra work. Senator Titus asked what the special fees are which are mentioned in NRS 258.125 in the bill. Mr. Barker stated those fees generally tend to be set up by the statutes for both the constable's office and the sheriff's civil bureaus. Senator Titus asked what the standby time is which is referred to in the bill. Mr. Barker stated whenever a writ of eviction or writ of judgement is served, a lot of times it involves individuals who live in an apartment, for instance. The eviction is served on them, and they have to remove their property from the apartment. At that point, the constable's office, or, if it is a district court order, the deputy sheriff stands by while the person moves their personal property out and turns the real property over to the rightful owner. He stated in the case of a writ of judgement such as a car, the constable has to stand by while the wrecker gets there to tow the car. Senator Titus asked if that was not what the constables and sheriffs are being paid for already. Mr. Barker stated under the other chapter there is a flat fee. He explained the fees in this bill are meant to recover the cost of the sheriff or constable's salary as they stand by during these events. He told the committee in most townships these are served for the prices enumerated in Chapter 258 of NRS and the constables do not work on an hourly wage. They work by the documents served. Senator Titus asked how much a constable would make serving a writ of eviction. Mr. Barker stated the average wage for the deputy constables in the Las Vegas township is $15.18 per hour. Senator Titus asked if this bill would give the constable an additional $15.18 per hour over and above his original $15.18 per hour. Mr. Barker explained the $15.00 standby time would go into the county general fund which the officer would be paid from. He emphasized the officer would get no more money for standing by than his normal salary, the money goes into the previously mentioned county general fund. Senator O'Donnell suggested to the chairman the wording on lines 9 and 10 be examined and make sure a couple of words were not left out of the bill, which may cause problems later. Senator Porter clarified the fees requested in this bill go to the county, because the population is over 250,000 or more. Mr. Barker stated that was correct, in the townships of over 250,000. Senator Porter stated representing a district which is two-thirds rural and one-third urban, in many of these cases the constables may only have two or three summons per month. He asked why this bill would be limited to only the townships that already have the staffing to handle these problems. He suggested the other townships should have the ability to charge for their services. Mr. Barker told the committee his only response is that the Las Vegas township constable did request these fees. He pointed out he was not sure the constables in the other townships were consulted. Mr. Barker explained the constables in the other townships do these writs as a part-time job and they collect the fees according to NRS 258. Chairman O'Connell stated she had a concern on line 4 of the bill where it states, "a board of county commissioners may approve reasonable fees for additional services performed." She asked if this language will allow the counties to set further fees, in addition to what is already on the book, plus the three additional fees requested. Mr. Barker stated that was not clear on that question, but he would speak with the requester of the bill and get back to the committee. He told the committee the language in the bill does sound like other fees could be set. Chairman O'Connell asked about the fee of $5 mentioned on line 8 and how much time would be involved in filling out the paperwork. Terry Lamuraglia, Lobbyist, Clark County, told the committee it is his understanding it is not any more than 15 minutes. He explained the form is in the computer and can be typed with the information given by the public. Chairman O'Connell asked what the base salary would be for an individual doing this job. Mr. Barker stated the information he received that morning was the mid-salary amount per hour was $15.18 in addition to that for the standby time. He explained the understanding of standby time is one-quarter hour of pay for each hour of standby or $3.80 per hour as related to line 9 of the bill. Chairman O'Connell summarized this bill is adding more money to the county commission's budget. She stated this bill sounds as though the county commission wants to remove the police department out of the budget by providing the cost of the police department strictly to be funded by user fees. She asked how the commission is currently funding this and is this the direction the county commission is headed. Mr. Barker told the committee he feels removing the police department from the county commission budget is the purpose of this bill. He explained the passage of this bill would provide the service and allow the constables' office to recover the cost without putting a burden on the taxpayers that do not use that. He stressed currently that is how the Las Vegas township constable's office is funded, from the fees collected which go into the county general fund and offset the operating cost of the entire office. He stated in order to continue or to provide these services they would have to charge these to have the personnel to offer these services. Chairman O'Connell asked if Mr. Barker knew what the current budget for the county commission would be. Mr. Barker stated he did not have that information. Senator Porter stated an eviction process has a number of fees which are paid to the constable and additional fees to the county which he feels is very costly. Mr. Barker told the committee if a private service drew up and filed the papers it would be an even larger expense. He explained this bill is a service to speed up services to the customers who use the constable's office and to lower their costs, somewhat. Senator Titus stated she thought Las Vegas got rid of their constables. Mr. Barker explained that is why he is involved in this bill. He concurred the county commission eliminated the elected office of constable in Las Vegas township, therefore, the Las Vegas Metropolitan Police Department, is working with the county on legislation that will change both the sheriff's civil bureau setup and the constable's office. He pointed out the police department is temporarily responsible as the constable of the Las Vegas township. Chairman O'Connell asked if any thought had been given to privatizing the constable's duties. Mr. Lamuraglia explained Las Vegas has not settled on an exact way to go with the sheriff's civil bureau and he stated there is some proposal to eliminate that particular responsibility from sheriffs of counties. He told the committee it could either be in favor of privatization or a county-run department, but he does not know if those plans have gotten to the point where they can be presented. Chairman O'Connell asked if the general feeling of the individuals discussing this issue favorable to privatization. Mr. Lamuraglia stated he was not at the meeting where privatization was discussed. He commented there is widespread support among the sheriffs for the sheriff's civil bureau. He stated he is not familiar with how the constables feel, but he is sure they have an opinion they would be glad to share with the committee. Senator Porter stated one of the arguments for changing the system in Las Vegas township is that it would be more efficient to have the county take it than have it be a separate entity. He stated he philosophically believes local entities should set their fees and be accountable to their constituents, but maintained this issue is more involved than just the fee issue because of the frustrations in Las Vegas township. He told the committee he would be anxious to hear the response to Chairman O'Connell's question on privatization at another time. Chairman O'Connell closed the hearing on S.B. 55. The meeting was adjourned at 3:05 p.m. RESPECTFULLY SUBMITTED: Tanya Morrison, Committee Secretary APPROVED BY: Senator Ann O'Connell, Chairman DATE: Senate Committee on Government Affairs January 23, 1995 Page