MINUTES OF THE SENATE COMMITTEE ON GOVERNMENT AFFAIRS Sixty-eighth Session June 26, 1995 The Senate Committee on Government Affairs was called to order by Chairman Ann O'Connell, at 3:00 p.m., on Monday, June 26, 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 GUEST LEGISLATORS PRESENT: Assemblyman Wendell Williams, Assembly District 6 Assemblywoman Chris Giunchigliani, Assembly District 9 Assemblywoman Diane Steel, Assembly District 16 Assemblyman Roy Neighbors, Assembly District 33 STAFF MEMBERS PRESENT: Dana Bennett, Principal Research Analyst Teri J. Spraggins, Committee Secretary OTHERS PRESENT: David Morton, Executive Director, Reno Housing Authority Carolyn Stockton, Executive Director, Nevada Rural Housing Authority. Tony L. Abbatangelo, Judge, Las Vegas Municipal Court Robey Willis, Judge, Carson City Municipal Court Thomas J. Grady, Executive Director, Nevada League of Cities. Frances Doherty, Deputy Attorney General, Nevada Commission on Ethics, Office of the Attorney General Thomas Wilson, Chair, Nevada Commission on Ethics Dale Erquiaga, Chief Deputy Secretary of State, Office of the Secretary of State Ande Engleman, Lobbyist, Freedom of Information Howard Barrett, Research Director, Nevada Taxpayers Association Senator O'Connell opened the committee with the announcement that the amendments for Assembly Bill (A.B.) 532 are not yet prepared. The committee will not hear the amendments until Wednesday, June 28. ASSEMBLY BILL 532: Requires governmental bodies to provide monetary payments for dwellings and business establishments destroyed by governmental acquisition of real property. Senator O'Connell closed the discussion on A.B. 532 and opened the hearing on A.B. 204. ASSEMBLY BILL 204: Requires one commissioner of each housing authority to be representative of tenants of project of authority. Assemblyman Wendell Williams, Assembly District 6, stated the bill provides that a recipient of public housing serve on the board of commissioners of the housing authority. If there is a tenant organization for public housing structure or for people receiving housing assistance, they would submit a list of names to the appointing authority. It would not interfere with local governments who currently have a tenant on the housing authority board. He stated the bill follows what other states and Reno are currently doing. Senator Raggio asked if housing projects had such an organization. Mr. Williams responded that the bill provides for this. Senator Raggio asked what happens if the commissioner ceases to receive assistance? Is that person automatically replaced. Mr. Williams responded that the person may leave for any reason. The second choice from the list would replace the commissioner. Senator Raggio stated the bill lists 4-year terms, and the bill specifically says the commissioner must be a current recipient of assistance, selected from the list. He asked if in the middle of the term, the person stops receiving assistance, should the bill have a provision that the person is replaced. Mr. Williams stated he had no problem with putting that provision in the bill. Senator O'Connell reminded the committee that there is a conflict amendment on the bill. The bill conflicts with A.B. 35. Discussion of possibly amending the bill ensued. Mr. Williams stated they could resolve the need for the new amendment when they resolved the conflict amendment. ASSEMBLY BILL 35: Reorganizes Nevada rural housing authority. David Morton, Executive Director, Reno Housing Authority, provided handouts to the committee (Exhibits C and D). He said the bill was revised after they testified before the Assembly. He opined that the amendments complicated the bill instead of resolving the problems. He said the problem with the bill is that the tenants have good intentions, but are unaware of the nature of the housing programs and the nature of the boards that they represent. Senator O'Connell asked if he had expressed his concerns to Mr. Williams. Mr. Morton stated he expressed all of this when he testified before the Assembly Committee on Government Affairs. Senator O'Connell stated if Mr. Morton is requesting an amendment, Mr. Williams must be made aware of the amendments. Senator Raggio noted that the proposed amendment is in the letter presented to the committee (Exhibit C). He opined that the amendment is appropriate. Discussion ensued regarding the amendment and coordination of lists. Carolyn Stockton, Executive Director, Nevada Rural Housing Authority, testified next on A.B. 35, reminding the committee of the conflict amendment. Senator O'Connell closed the hearing on A.B. 35 and A.B. 204 and opened the hearing on A.B. 635. ASSEMBLY BILL 635: Revises provisions governing opening of legislative sessions and contests of election of legislators. Assemblywoman Chris Giunchigliani, Assembly District 9, testified first on A.B. 635. She provided amendments to the committee (Exhibit E). She provided a section-by-section analysis of the amendments to the bill. The committee discussed the proposed amendments. Senator O'Connell closed the hearing on A.B. 635 and opened the hearing on A.B. 372. ASSEMBLY BILL 372: Revises provisions governing residency requirements for candidacy for and retention of public office. Assemblywoman Diane Steel, Assembly District 16, told the committee she introduced this bill to provide clarity for the courts and for the candidates regarding the meaning of residence. This bill states that the candidate swears an oath, at the time of filing for candidacy, regarding where their residence is. The bill also defines "domiciles" in statutes. A domicile is defined as the place where the candidate lays their head. The bill removed the issue of intent to reside. The days of residency to be qualified changed from 30 days to 90 days. The candidate must be a resident of a district for 90 days before the election. Discussion of the various residency requirements for cities and towns ensued. Ms. Giunchigliani told the committee that this bill does not affect the cities. Discussion of primary residences, constitutional challenges, and out-of-state residency followed. Senator O'Connell closed the hearing on A.B. 372 and opened the hearing on A.B. 345. There is a proposed amendment to the bill (Exhibit F). ASSEMBLY BILL 345: Revises provision governing sale, lease or exchange of land owned by the City of Henderson. Tony L. Abbatangelo, Judge, Las Vegas Municipal Court, provided an amendment to the bill to make all municipal court judges have 6-year terms. He explained currently justices of the peace, district court judges, family court judges, and supreme court judges all currently have 6-year terms. This bill will change the Nevada Revised Statutes to permit 6-year terms for municipal judges. Senator O'Connell asked if all of the city charters have to be changed. Mr. Abbatangelo stated that would streamline the process. He said five city charters would have to be changed. Robey Willis, Judge, Carson City Municipal Court, stated this is enabling legislation. He stated the municipal judges are the only judges left who do not serve 6-year terms. He told the committee there are 130 judges in the state, and 13 of them are the only ones with 4-year terms. He urged the committee to pass this legislation to equalize the terms. Senator Porter asked why any of them should be 6 years. Mr. Willis stated 6-year terms take the judges out of the 4-year political arena. Senator Porter asked it if was less political at 6 years rather than 4 years? Mr. Willis responded that any political pressure would come once every 6 years, instead of 4 years. Discussion of general law of municipal courts ensued. The discussion included applicable statutes, charter cities, and permissive versus mandatory language. Thomas J. Grady, Executive Director, Nevada League of Cities, spoke in favor of the bill. He said some of the judges are appointed by city councils. He said the bill would affect the larger cities. He said charters would have to be changed. No other cities have asked for their charter to be changed. Senator O'Connell closed the hearing on A.B. 345 and opened the hearing on A.B. 526. ASSEMBLY BILL 526: Makes various changes relating to commission on ethics. Before the committee heard testimony on A.B. 526, Senator Porter asked Senator O'Connell about protocol for introducing an amendment on the floor. He was referring to S.B. 556. He said he has requested an amendment which is similar to a motion that failed in the committee. Out of courtesy to the committee, he asked the committee to support his introduction of the amendment on the floor. He said the amendment is a little different, because it includes restrictions of annexations and unincorporated towns being formed during the study. SENATE BILL 556: Provides additional circumstances for creating unincorporated towns and revises provisions governing establishment of basic ad valorem revenue for certain local governments. Senator Raggio commended Senator Porter for notifying the committee in advance. The committee resumed the hearing on A.B. 526. Frances Doherty, Deputy Attorney General, Commission on Ethics, Office of the Attorney General, stated this bill will improve the statutes to allow the commission to fulfill their duties. She provided a section-by-section analysis of the bill. Thomas Wilson, Chair, Commission on Ethics, explained that public offices are defined constitutionally as public officers. All of the management is not a public officer. He said most management in state offices are public employees. They are not named as public officers. He provided examples of this definition. He said the largest body of people subject to the jurisdiction of the commission are employees. They are not administration, but may be involved in management. He said it is clear that they have jurisdiction over officers after they have left their office. However, this is ambiguous when referring to the commission's jurisdiction over state employees. He testified: The matter most recently came up in the University of Nevada, Las Vegas (UNLV) basketball contract case, the Masamino contract. Coach Masamino was an employee not a public officer. By the time we heard the case, most of the cast of characters were gone, with the exception of Weaver who was a newly hired athletic director about 4 months before this began. He was the only one left in the case. The case involved a lot of people, over most of whom we did not have jurisdiction, including the former president. In the middle of the case, Mr. Masimino settled his contract dispute with the UNLV administration; terminated his employment as part of the settlement in the middle of our hearing; we no longer had jurisdiction over him. I am not necessarily suggesting that he was the villain. We felt those who had management responsibilities were those who ought to be subject to the opinion. Those who were subordinate ought not [be subject to the opinion]. We finished the matter with jurisdiction only over the newly hired athletic director. We took the position that the hired hands should not pay the bill. We wrote an opinion which discussed the circumstances and facts with respect to everybody involved, not just the one remaining public employee over whom we still had jurisdiction. This [bill] is an attempt to get rid of that anomaly and provide some clear basis over jurisdiction over both officers and employees. Senator Raggio asked if there was a year time limit. Mr. Wilson stated there is no limitation under the present law. The Assembly felt there should be a statute of limitations. The year time limit begins after reasonable discovery. Senator O'Donnell asked if a request for an opinion 10 years after an incident occurs would be considered reasonable discovery. Mr. Wilson stated that reasonable discovery is when the facts and circumstances are known. The time lapse between the incident and the allegation or the incident and the request for the opinion is not important. It is whether the facts and the circumstances were known. Ms. Doherty explained: The standard would be akin to when they knew or should have known. Someone putting together an alleged violation because they have done research 10 years after the fact, and they can put everything together -- that clearly is not within the jurisdiction of the commission. The 1-year statute is very tight. It is only going to extend beyond the 1 year where facts such as a secretive document or contract becomes known, publicly. If no one does anything about it, then jurisdiction lapses. But if someone does something, the commission has the jurisdiction to look at it. Ms. Doherty continued her section-by-section analysis of the bill. She said the second significant thing that the act does is on page 2, subsection 4. This part of the bill eliminates the confidentiality provisions with respect to past conduct. An opinion request involving the past conduct of a public officer or employee, or a former officer or employee will no longer be confidential. The primary reason for that is the Ninth Circuit Court of Appeals, in which the commission is located, has determined that confidentiality requirements are unconstitutional based on 1st Amendment rights. Senator Raggio expressed grave concerns regarding this portion of the bill. He said the commission was set up to provide guidance for public officials who had no way to have legal opinions developed. He said the Legislature allowed any person to request an opinion. He said the way the bill reads, even the request for an opinion is public information. Ms. Doherty responded, "With respect to past conduct." Senator Raggio stated there was a request for an opinion against 15 legislators about two weeks ago. He said he is not sure that anyone can vote on this bill. He opined that the request for the opinion against the 15 legislators was ridiculous. He expressed concern that this would make every request for an opinion a public record. He asked why opinions or requests for opinions which are, "frankly crank in many cases, without merit, become public record, until some opinion has been rendered which says so." Mr. Wilson responded that as the act has evolved, the process is now open to everyone. He said when the theme of this provision was first drawn and approved legislatively, the commission was only advisory and it applied to future conduct. Everyone was careful to avoid disincentives for anyone to come to the commission to seek advice about governing oneself in the future if there was a conflict. He said private information is disclosed to the commission. He said the bill does not change anything regarding future conduct. Requests for opinions from anyone remain confidential with respect to future conduct. He said the difficulty concerns past conduct. They have found it difficult to administer the rules of confidentiality as to past conduct. They are inefficient. Senator Raggio asked why the request should be made public. He said they do not require it for the judicial discipline commission. Mr. Wilson stated there is room for reasonable argument that third party requests ought not to be public until after the first hearing has been held to determine if there is just or sufficient cause and only in the event that just and sufficient cause is found. He discussed examples of this. Discussion ensued regarding the Ninth Circuit opinion, confidentiality, 1st Amendment rights, and the news media. Senator Raggio stated: I don't care if the person that makes the request goes out and speaks freely, but I'm not going to be a party to authorizing the ethics commission to publish and make open every crank complaint that is filed against . . . it is hard enough to get good people to run for office as it is, without putting more and more of these kind of requirements upon them. Ms. Doherty responded: The remaining part of the confidentiality provision goes to first party opinion requests which again, are confidential. Just for the record, the point that we think will withstand the constitutional scrutiny of the Ninth Circuit test is that the future conduct of an individual, in giving guidance to a public officer or employee seeking advice from the commission, we think would meet the compelling state interest standard that we are not able to defend in the other types of opinion requests involving past conduct. The final thing that we did, other than clarification language, is on page 4 and 5. We have made the penalty sections of the statute applicable to both public officers and public employees. Mr. Wilson asked if this allowed the commission to fine someone who breaches confidentiality. Ms. Doherty responded in the affirmative. Mr. Wilson stated if an amendment is going to be processed to protect the confidentiality rule with respect to past conduct, only, until the commission takes jurisdiction, he asked the committee to leave the language in which provides imposition of a fine for the party leaking the story. He said they would apply the fine and see what the Ninth Circuit Court of Appeals does in that case. He said there is no authority unless this is included in the bill. Senator O'Connell temporarily closed the hearing on A.B. 526 and opened a preliminary hearing on A.B. 404. Ms. Doherty told the committee that the commission is not opposed to the amendments for A.B. 404. Senator O'Connell stated the Legislative Counsel Bureau has requested an amendment for A.B. 404 for a technical change. ASSEMBLY BILL 404: Makes various changes regarding financial disclosure by public officers. Senator O'Connell closed the preliminary discussion of A.B. 404 and opened A.B. 619. ASSEMBLY BILL 619: Makes various changes to provisions governing elections to comply with National Voter Registration Act. Dale Erquiaga, Chief Deputy Secretary of State, Office of the Secretary of State, provided amendments to the committee (Exhibit G). Senator O'Connell asked Mr. Erquiaga to go through the bill and identify the sections which are not needed. Mr. Erquiaga responded, "I did talk with your staff about that. Everything in this bill is required to implement the federal act. There is another bill, A.B. 618, that came out at the same time as this bill that has a great many sections that are not related to the voter registration act. This bill, in its entirety, is needed by the secretary of state to avoid a lawsuit from the U.S. Attorney General in our opinion and upon the advice of counsel. It was amended. There are five changes made by the Assembly and I will go to those first if I might." ASSEMBLY BILL 618: Makes various changes in provision governing elections. Mr. Erquiaga provided a section-by-section analysis of the bill and the amendments, referring to Exhibit F. He said the law does three things. It allows for agency-based registration, mail in registration, and motor-voter registration. It eliminates the purge of nonreponsive voters from the system. It establishes procedures to allow a voter who recently moved to vote in a previous precinct. He explained how the federal law has withstood several court challenges. Senator Shaffer asked for the compliance deadline date and how much it will cost to establish the program. Mr. Erquiaga stated the date to comply was January 1, 1995. The state complied by placing voter registration forms within the agencies of public assistance at a cost of $18,000 for the first 6 months of 1995. He said during the biennium, those agencies have built these costs into their printing budgets. He said he does not know the total as several agencies are involved. Senator Titus asked if there has been an increase in registrations in public agencies. Mr. Erquiaga stated the numbers in Nevada are increasing at the normal rate. They have not seen a huge jump. Nationwide, however, he contended, there is an increase claimed by the groups who sponsored the bill. He said there has been an increase at public assistance agencies in Clark County and in Washoe County for about a total of 6,000. There have been minimal registrations from the rural counties. Senator O'Connell closed the hearing on A.B. 619 and reopened the hearing on A.B. 526. Ande Engleman, Lobbyist, Freedom of Information, stated the bill is supported by the Nevada Press Association and Common Cause. She said: I did not bring with me the Ninth Circuit court case, but let me address one issue raised by Senator Raggio. The Ninth Circuit court case, which found the gag order...I personally delivered to the Chief Justice, Thomas Steffen, three weeks ago. This Wednesday morning at 11:00 a.m. the Supreme Court is holding an open hearing to draft new rules regarding the judicial discipline commission and what is open and what is closed. From the petition that was filed by Justice Springer on Friday, it would appear that they are going to open it up quite a bit. Exactly how far that will be, I will not know until Wednesday morning at 11:00 a.m. The fact is that the present language is unconstitutional. It is a restriction on freedom of speech. It says that if you file a complaint and if you go home and tell your wife, you can be fined $5,000. This is America. I understand the concern about frivolous complaints. Certainly the press cannot print such things or they are liable; or they can be sued for slander...We are talking about every citizen's 1st Amendment rights. I don't have a problem with you taking out this line that says it is public record, but without a doubt, we are talking about something that has been upheld in court. I think that is all the ethics commission is trying to do, is keep their statute constitutional so it cannot be challenged and overturned. A gag order, such as the judicial discipline commission has on people who file complaints against judges and as presently in the law on the ethics commission, is inappropriate. Senator O'Connell closed the hearing on A.B. 526 and reopened the hearing on A.B. 404. Mr. Grady testified this bill is sponsored by the Nevada League of Cities. He said the bill allows that one yearly disclosure form is filed, instead of one disclosure form for every board or commission that a person is on for a year. He said if a city or county has a form that they use, it can be submitted instead of the form which the ethics committee has. Senator O'Connell reminded the committee that the ethics commission supports the bill. Senator O'Connell closed the hearing on A.B. 404 and opened the he ar in g on A. B. 67 8. As th er e wa s no on e pr es en t to te st if y, th e bi ll wa s se t as id e. ASSEMBLY BILL 678: Revises various provisions relating to chief of risk management division of department of administration. Senator O'Connell asked the committee to consider Bill Draft Request (BDR) 17-2160. Discussion of floor assignments ensued. BILL DRAFT REQUEST 17-2160: Contingently provides for increases in compensation of legislators commensurate with increases in salaries of certain state employees. SENATOR TITUS MOVED FOR COMMITTEE INTRODUCTION OF BDR 17- 2160. SENATOR PORTER SECONDED THE MOTION FOR DISCUSSION PURPOSES. Discussion ensued regarding how to implement pay raises. Senator O'Connell explained she asked for someone from the Legal Division of the Legislative Counsel Bureau to clarify the discussion. She told the committee that the vote on the bill draft request would wait until after the discussion. She closed the hearing on BDR 17-2160 and opened the hearing on A.B. 433. ASSEMBLY BILL 433: Revises certain provisions governing employment of county surveyors. Assemblyman Roy Neighbors, Assembly District 36, explained this bill expands the services which may be assigned to a county surveyor, and revises the provisions regarding compensation. He said both Washoe and Clark counties have submitted letters of support to the legislators. He said there was no opposition testimony in the committee hearings on the floor of the Assembly. He explained it allows counties to employ county surveyors on a full-time basis and pay salary. He said the salary is set by the county board of commissioners. He explained a county surveyor can be a surveyor in more than one county. The only rule is that they must have an office in each county that they service. He stressed the surveyor is paid by the job. He emphasized the bill is enabling language that any county can implement. The county would pay a salary and benefits instead of paying for each separate job. Senator O'Connell asked what the impact is on county government. She said the counties would pick up another person to pay benefits to. She asked what problem caused the bill. Mr. Neighbors explained that the growth in Nye County precipitated the bill. They would like to hire a full-time surveyor. He opined there would not be an impact because the counties are not mandated to do it if they do not want to. He said because of the mining maps and the claims and the travel, the county feels that, "it would be a wash." If the county surveyor wants to moonlight with other surveyor jobs, he cannot do anything that might conflict with a decision that might come before his county board of supervisors at a later date. He emphasized that the counties do not have to do it. Nye County feels that it would be dollars ahead to do it. Senator O'Connell closed the hearing on A.B. 433. She told the committee that they have three different conflict notices on bills. SENATE BILL 456: Authorizes local government to establish certain funds for local financial administration. (BDR 31-1661) Senator O'Connell stated this is Senator Porter's bill. The Assembly has put an amendment on the bill to roll A.B. 48 into this bill. Senator Porter stated it does specify that the maximum amount is 10 percent. SENATOR TOWNSEND MOVED TO CONCUR WITH AMENDMENT NO. 1043 TO S.B. 456. SENATOR PORTER SECONDED THE MOTION. THE MOTION CARRIED. (SENATOR RAGGIO WAS ABSENT FOR THE VOTE.) ***** Senator O'Connell closed the hearing on S.B. 456 and opened the hearing on S.B. 446. SENATE BILL 446: Revises provisions for failure to report certain campaign contributions and expenditures. (BDR 24-1100) Senator O'Connell stated this resolves a conflict with Senate Bill (S.B.) 169. SENATE BILL 169: Makes various changes to provisions governing governmental contracts with legislators and contributions made to certain public officers. SENATOR TOWNSEND MOVED TO CONCUR WITH ASSEMBLY AMENDMENT NO. 1241 TO S.B. 446. SENATOR TITUS SECONDED THE MOTION. THE MOTION CARRIED. (SENATOR RAGGIO WAS ABSENT FOR THE VOTE.) ***** Senator O'Connell closed the hearing on S.B. 446 and opened the hearing on S.B. 543. SENATE BILL 543: Exempts certain public works projects from provisions governing local government purchasing and public works. Senator O'Connell stated the Assembly Amendment No. 1219 makes the bill more specific. SENATOR TOWNSEND MOVED TO CONCUR WITH ASSEMBLY AMENDMENT NO. 1219 TO S.B. 543. SENATOR SHAFFER SECONDED THE MOTION. THE MOTION CARRIED. (SENATOR RAGGIO WAS ABSENT FOR THE VOTE.) ***** Senator O'Connell closed the hearing on S.B. 543 and reopened the hearing on A.B. 678. Howard Barrett, Research Director, Nevada Taxpayers Association, testified that this bill is a result of a request from the group insurance committee. The request would allow them to have a separate budget to employ a chief executive officer. He explained this request is the result of an audit of the state group insurance program. The main recommendation of the audit is that the group insurance committee should hire a chief executive officer. The group insurance committee presently has no staff. They have a contract with the Department of Administration, Risk Management Division, which performs all of the administration, research and work of the committee. The committee is charged with administering the program, but has no staff. The auditors who did a management study of the system indicated this is a top priority. The committee agreed and asked for a separate budget to pay for the chief executive officer. He explained that the Assembly Committee on Ways and Means denied this budget request. He said the Assembly put this bill in the system whereby the risk manager would be appointed by the benefits committee with approval of the director of administration who is also a member of the group insurance committee. Senator O'Connell asked if the bill is in compliance with the auditor's findings. Mr. Barrett stated the bill is less than the auditor recommended, but this is the extent to which the ways and means committee would go. Senator O'Connell closed the hearing on A.B. 678 and reopened the hearing on BDR 17-2160. Dana Bennett, Principal Research Analyst, Legislative Counsel Bureau, told the committee that this bill draft request establishes an ongoing policy. It sets the base at $130 per day for the legislator whose term begins in the year 2000. When the term of office begins in 2001, they will get $130 plus the percentages that were granted from June 30, 1995 to January 2001. She said this is how the holdover senators are picked up. It begins with a base amount and adds the percentage for each office. Senator Titus asked if a senator, who was elected in 1994 and who was not entitled to the raise the first time, would make up for it the second time by getting all that had been offered up to that point. Ms. Bennett stated that is her understanding. Discussion ensued regarding how the raises would be implemented. Senator Titus explained that the public only votes one time on the bill. The raises will then be automatic every two years, depending on the raise given to the state employees. She explained there would only be one session where half the senators would not get the raise, but the next session, everyone would make up for it the next time, and would be even from that point on. Senator O'Connell stated they would ensure that staff writes the bill and explains it in that manner. The committee decided to hold the vote on the bill until after they see it during a floor meeting the next work day. Hearing no further testimony forthcoming on any of the bills, Senator O'Connell adjourned the committee meeting at 4:20 p.m. RESPECTFULLY SUBMITTED: Teri J. Spraggins, Committee Secretary APPROVED BY: Senator Ann O'Connell, Chairman DATE: Senate Committee on Government Affairs June 26, 1995 Page