MINUTES OF THE SENATE COMMITTEE ON JUDICIARY Sixty-eighth Session March 8, 1995 The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 8:00 a.m., on Wednesday, March 8, 1995, in Room 224 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Senator Mark A. James, Chairman Senator Jon C. Porter, Vice Chairman Senator Maurice Washington Senator Mike McGinness Senator Ernest E. Adler Senator Dina Titus Senator O. C. Lee STAFF MEMBERS PRESENT: Allison Combs, Senior Research Analyst Lori M. Story, Committee Secretary Maddie Fischer, Primary Secretary OTHERS PRESENT: J. T. Watson, Jr., Officer in Charge, Immigration and Naturalization Service, United States Department of Justice Rick Eaton, Supervisory Special Agent, Immigration and Naturalization Service, United States Department of Justice Brian Cram, Superintendent of Schools, Carson City School District Jerry Keller, Sheriff, Clark County Victoria D. Riley, Lobbyist, Nevada Trial Lawyers Association Senator James opened the meeting with consideration of a bill draft request (BDR) regarding presentencing reports. J. T. Watson, Jr., Officer in Charge, Immigration and Naturalization Service, United States Department of Justice, and Rick Eaton, Supervisory Special Agent, Immigration and Naturalization Service (USINS), United States Department of Justice, came forward to present a bill draft request. They provided the committee with a packet of information (Exhibit C. Original is on file in the Research Library.). Mr. Watson made a request to amend Nevada Revised Statutes (NRS) Chapter 176 section 156. He said the INS was requesting an amendment that would allow for the release of the Presentence Investigation Report (PSI) by the Division of Parole and Probation to the USINS. He explained the information would be used in deportation hearings and would be used by special agents to detect individuals who make false claims to United States (US) citizenship. He pointed out several states make the reports available to the USINS, but the current Nevada statute limits dissemination of the information to the judge, the defense attorneys and the prosecution attorneys. Mr. Watson said the information could be valuable in deportation hearings following release of the felon from a prison or following a conviction. He reminded the committee the measure would apply only to criminals who are subject to presentencing hearings in district courts. Mr. Watson stated individuals who commit certain crimes in the United States, whether they are legal aliens or illegal aliens, are subject to deportation. He commented in most cases during sentencing hearings the individual pleads to the charges leveled for deportation, but then he is permitted to seek relief during the actual deportation hearing. According to Mr. Watson the relief could take the form of a request for asylum or other forms of relief. He stated most aliens who have lived in the US for 7 years under a legal status will request an Immigration and Nationality Act Section 212 (c) waiver which allows them to remain in the United States. If the request is not granted the aliens will be ordered deported by an immigration judge. Before deciding whether to deport the person, Mr. Watson explained, the judge takes into consideration factors listed in Exhibit C, including family ties, employment, previous criminal records, signs of rehabilitation, and commitment to the community. He said a Section 212 (h) waiver also was included in the exhibit which applies to a person who is not a legal permanent resident in the United States, but who has made application for such. He explained a person who is here illegally and perhaps has married a legal citizen can seek relief on that basis under Section 212 (h). Mr. Watson declared the USINS is at a disadvantage in sentencing hearings because the service is not privy to information on the person's home life, community or employment activity or other matters that would assist the USINS in making a recommendation regarding deportation. He explained the defendant's attorney may raise those issues and the USINS is in no position to refute the matters due to lack of information. Senator James inquired why the USINS would not already have such information. Mr. Watson replied the service does not have enough personnel to investigate and do necessary research. He explained if there is no criminal background on a person who is making application for citizenship the USINS frequently sends an agent to check with neighbors and employers, but he declared the check does not provide the depth of information available in a Presentence Investigation Report. Mr. Watson acknowledged the service seeks to use information generated by Nevada state agencies which, by law, the USINS is presently denied access . Senator James asked if Mr. Watson had ascertained the reason behind the non- disclosure law as now written. Mr. Watson said the Office of the Attorney General has indicated the plain language of the statute bars disclosure. He explained the statute mandates to whom the information can be released, and it denies release to the public. He admitted immigration hearings are open to the public so any information released to the USINS would become public except for portions of the file that are not presented at the hearing. Senator James inquired if the requested amendment would apply to someone who had already become a US citizen. Mr. Watson responded the law would apply to aliens, but there are individuals who make false claim to citizenship. He said in other states information can be learned from review of the PSI report such as the citizenship of the parents. If both parents and all brothers and sisters were born in a foreign country, it raises the question how the person came to be a US citizen; and the USINS makes further investigation. Senator James restated the bill draft request, saying it would deal with the issue of disclosure of PSI reports for people who are involved in deportation proceedings, who would be subject to the USINS jurisdiction. Additionally, it would cover the issue of false claims to citizenship. Mr. Watson confirmed the statement. Senator James indicated support for the request. He indicated the committee would solicit input from the Division of Parole and Probation regarding work load and fiscal impact. Mr. Watson pointed out there is a letter from Richard Wyett, Chief, Nevada Division of Parole and Probation included in Exhibit C. Mr. Watson acknowledged there would be an extra cost to supply the documents which, he alleged, would be offset by the savings which would accrue upon deportation of criminal aliens. SENATOR ADLER MOVED FOR INTRODUCTION OF THE BILL DRAFT REQUEST. SENATOR LEE SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. * * * * * Senator Titus commented opening Presentence Investigation Reports to the USINS may cause a debate as to whether one agency can be singled out for access to the information. Senator Adler wondered if PSI reports could be considered public documents already because reference is made to the reports during hearings and corrections are often made on the record. He suggested the status of the reports may need to be redefined. Mr. Watson commented Arizona, which releases PSI reports to the USINS, has a third-agency rule which prevents the USINS from disclosing information in their files to other agencies or to the public. He indicated the only way the information becomes public is when it is made part of a decision or is disclosed during a public hearing. He said both the State of Hawaii and the State of California have legislation which designates USINS agents as peace officers to whom the information may be released. Mr. Watson interjected the request would apply only to serious crimes which would make a person deportable, typically narcotics trafficking, murder, mayhem, theft, armed robber, hijacking vehicles and similar crimes. Mr. Eaton pointed out the adoption of the statute would save the state the expense of incarcerating those people at a cost of approximately $15,000 per year. Mr. Watson added sometimes those people are subject to imprisonment in a federal prison under laws enacted in 1990, which would effect a savings for the state. Mr. Eaton said a person who returns to the United States after having been deported is subject to imprisonment in a federal prison for 5 to 15 years for an aggravated felony. He stated such individuals are typically career criminals. SENATE BILL 229: Provides specifically for personal service of summons in civil action upon party who is outside State of Nevada. Senator James opened the hearing on Senate Bill 229. He pointed out the statute had been amended in the Sixty-seventh Session of the legislature. He explained the statue, called the "long arm statute," allows Nevada courts to exercise jurisdiction over persons outside the state if those persons have committed some act inside the state, or which would connect them with the state, and which would satisfy the elements of due process. He said it allows the state to reach out to require those people to answer to Nevada courts even though the people may not have been in the state at the time of the event at issue. Senator James declared the Supreme Court of the United States ruled states could reach out under a long-arm jurisdiction and bring people in to the state court. He declared NRS 14.065 formerly set forth a series of criteria with which the courts had to comply which required the person to commit the act within the state, transact business within the state, or hold property in the state. He explained the US Supreme Court effectively set up a test which provides a broader standard through which people can be brought into the state to face charges. As an example, he said, "California ... eliminated all those statutory criteria and just said `We exercise jurisdiction to the limits of the federal constitution.'" Senator James indicated the Nevada statutes were amended accordingly last session, but when the bill was drafted the mechanism to serve process outside the state was omitted. According to the Supreme Court decision, he said, the statutes must provide a method by which the state can confer upon the courts the power and mechanism for the serving process outside the state. S.B. 229 would provide the mechanism for out-of-state service. Senator Adler concurred the bill should be passed. SENATOR WASHINGTON MOVED TO DO PASS S.B. 229. SENATOR ADLER SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. * * * * * SENATE BILL 120: Limits civil liability of county school districts, local law enforcement agencies and certain other persons with regard to volunteer crossing guards for schools. Senator James commented the language of S.B. 120 has been the source of controversy regarding liability issues. He invited Brian Cram, Superintendent of Schools, Carson City School District, and Jerry Keller, Sheriff, Clark County, to discuss the bill. Sheriff Keller related as a youngster he had been a crossing guard and though Las Vegas has grown he declared crossing guards face many of the same problems today. He said there are 101 elementary schools under the jurisdiction of the Las Vegas Metropolitan Police Department (METRO) which employs crossing guards. He explained the placement of the guards is done according to a warrant study based upon national criteria and conducted by city and county traffic engineering departments. He declared the criteria determine where and when crossing guards are justified. Sheriff Keller stated the study is the result of a meeting in which he, Senator James, Las Vegas councilmen and patrol members met with the parents of an 8- year old boy who had been hit by a speeding, errant driver near a school where no crossing guard had been warranted because it did not qualify under the national criteria. He pointed out the crosswalk is within 800 feet of an intersection controlled by a signal,May 1, 1995 but the boy had not crossed at the signal; he had crossed where there was no signal or crossing guard. As a result of the meeting it was determined the sheriff's department would accept some of the liability for injuries to the boy. Sheriff Keller noted after that incident a pilot program was established in which the crossing guard supervisor trained several parents to act as crossing guards at that intersection. He stated it is difficult to hire crossing guards, but there are parents who will participate in volunteer crossing-guard programs. He advocated the use of parents taking an active role in the safety of their children. Sheriff Keller pointed out there has been opposition from the Clark County School District to the use of parents as volunteer crossing guards for fear the school district would have to assume liability for the program. Also, he said, adults are reluctant to volunteer for crossing guard duty due to concern over liability. He indicated the bill would remove that concern and would provide the same protection for volunteers that applies to paid crossing guards. Senator James asked if there are 120 crossing guards at elementary school crossings in Las Vegas whereas there are 250 crossings that may be in need of guards. Sheriff Keller responded he does not know the exact number but he affirmed there are multiple points of access to each school that are not covered by crossing guards under the federal guidelines. He recalled there are 87 paid crossing guards for 300 elementary schools. He reiterated there are parents willing to volunteer who hesitate due to liability issues. Senator Adler asked why parents would be liable. He pointed out there are reserve police officers in many of the rural counties who work as volunteers who have not faced liability problems. Sheriff Keller responded, "The issue is to exclude the liability for the police department for the volunteer crossing guard." Senator Adler agreed, "That does create liability for the volunteer." Sheriff Keller asserted S.B. 120 would provide exclusion from liability for volunteers. Senator Adler opined section 2 would provide "good faith and unity under the statutes" because the volunteer would hold the same position as a public employee. The liability for public employees is limited to $50,000 indemnified by the public entity by which they are employed. He cautioned section 3 tends to negate the provisions of section 2 by indicating nobody would be liable. Under those circumstances, he explained, a severely injured child would not be protected by the $50,000 payment. He stated in that situation an attorney would probably take action against the volunteer. Senator Adler warned sections 3 and 4 would undo the provisions of section 2 and would expose volunteers to liability. Sheriff Keller interjected the driver of the automobile would have the liability. He suggested all volunteer programs would be in jeopardy if the victim is looking for a person to sue. Senator James disagreed with Senator Adler but did agree with Sheriff Keller's opinion the victim would sue the driver. He said: They're not left without anybody to sue. They're left with the person to sue who hit them, and they're not doing anything with that at all. I think we're getting lost in this issue of who these other people around the problem are, and maybe somebody is trying to find a deep pocket.... If you didn't have crossing guards, if the child was crossing somewhere where it wasn't [protected by] a crossing guard program, which makes it more unsafe, then the parents ... would have the people to sue that they would have to sue in any other kind of situation. Senator James declared, "All this bill does is recognize that when kids are trying to get to and from school there are certain places where they have to try to get across the streets that might be dangerous." He noted there are not enough trained people in safety positions and S.B. 120 would provide training for crossing guards. He reiterated his belief if a child is hit the parents would sue the person who hit him, but emphasized avoiding accidents is the purpose of the bill. Sheriff Keller stated: If there is no adult volunteer, then the only person to sue in the scenario is the 10-year-old who said, `Let's go.' And so you can sue them ... or we can add a layer of safety and have an adult there who is voluntarily under the guidelines that are prescribed, and trained for the paid crossing guards for ones not warranted by the national criteria and where the community doesn't have the need to spend the money, or the money to spend, to be there making decisions of when to or when not to cross the street. Senator Porter submitted there are two issues, one being the proper training of crossing guards. Regarding the other issue-liability, he said the driver could be sued if he has insurance or the capability to pay the family, but he asserted that is not always the case and should be ruled out. Senator Porter continued: The problem is the deep pockets and we've had statistics before us that traditionally crossing guards are not sued, but ... we're a litigious society and the odds are pretty good that this is going to happen. The school is going to be named, METRO is going to be named, the crossing guard is going to be named, the family of the 10-year-old that led the young man across the street is going to be named. What we're trying to do is resolve who has the ultimate responsibility. Senator Porter pointed out in the case of injury the first call will be to 9-1-1 emergency services and the first response will be from METRO. He suggested this responsibility should be vested in law enforcement entities, as well as the responsibility for the volunteer training program. He viewed the provisions of the bill as removing the liability from the law enforcement agency. Sheriff Keller concurred. He stated the purpose of the bill is to eliminate any liability, which would allow parents to feel more free to volunteer. Agreeing the victim would go after the "deep pockets," he declared: There is the school district, and there is the Metropolitan Police Department, and there is the parent. And you mentioned the 10-year old. And what happens without passage of a bill that will put these parents out there as a volunteer is you eliminate the school district anyway, you eliminate the Metropolitan Police Department anyway, and you eliminate the adults because the only one making the decision to cross is the child.... And you cannot sue the parent of the child, your playmate's parents.... Sheriff Keller maintained it is six times more likely that youngsters will be injured by their traffic decisions than that they will be put in harm's way as victims of violent crime. He declared, "If we have no program whatsoever, we still have kids making those decisions and there is still not anybody to sue." Sheriff Keller asserted parents want to help. Even though the police department does not have funds with which to provide crossing guards, parents are still unwilling to volunteer if they may be sued. He asked why the police department should be liable if a driver has no insurance. Senator Porter agreed the need for guards is critical, and he reiterated his opinion that if law enforcement provides the training and organizes the program law enforcement should carry the liability. He declared the issue needs a resolution. Senator Titus agreed with Senator Porter that crossing guards are needed. She suggested the national criteria may need revision, funding must be made available, or portions of S.B. 120 should be enacted. Concurring all liability should not be relinquished, she said: I can't understand that ... these people ... receive the same training as the paid crossing guard, it's going to be safer. And yet, for some reason you're afraid to accept the liability, even though it caps at $50,000, no matter what might possibly happen to the child. Why is it that you just refuse to accept the liability? Senator Titus pointed out there are people performing as volunteer firemen who come under the $50,000 liability umbrella. Sheriff Keller responded, "These are not volunteer police officers, they are parents." He described a program called Parents on Patrol in which the parents wear identifying shirts and make themselves visible during the periods when children are going to and from school, but the parents do not act as crossing guards. They are simply there to give the children a sense of security. He asserted, "I don't want those parents to be agents of this police department either." He declared he has a duty to the community, not only to protect the citizens, but also to protect the resources. Sheriff Keller stated, "Without them we have no one to sue. Why should we, with them [there], have someone to sue?" Senator Titus asked if it is correct the volunteers receive the same training as the paid crossing guards. Sheriff Keller replied they receive 45 minutes of training. He reiterated the program would not train the volunteers to act as police. He pointed out he has citizen block captains who assist in making neighborhoods safer, but they are not indemnified. Senator Titus suggested the "sense" of being safer provided by the presence of a crossing guard should impose a responsibility upon the entity that provides that sense of well being. She declared, "If some accident occurs then you have to be held responsible for having set up that situation." Senator Titus implied it may be erroneous to assume the driver could be sued. She declared Nevada has the highest number of uninsured motorists of any state in the country, many of them tourists driving rental cars. She charged nobody wants to assume the responsibility for the injury of a child walking to school. Sheriff Keller declared that scenario applies right now at the 100 crosswalks that have no guards and there is no one to sue. He said he could not understand why there is opposition to limiting the liability of volunteers when there is no entity assuming liability where there are no volunteers. Senator Titus countered she could not understand the difficulty of assuming liability for volunteers when they receive the same training as paid crossing guards for whom the department assumes liability. She asked, "You still haven't answered my question why you don't want to have liability for these people. Is it because you're afraid they won't do a good job and there'll be an accident out there that you'll have to pay for?" Sheriff Keller denied the query. He stated he does not believe it is the responsibility of the police department to indemnify parents who wanted to assist their children crossing the streets just so that there would be someone to sue. He declared the issue is not one of accountability, but it is one of liability. Sheriff Keller argued, "People are saying ... somebody's going to have to stand to be sued here if there's a kid hit in a crosswalk." He reiterated, "We have an unsafe condition without the liability. Why are we then making it safer in adding, then, the issues of liability to anyone." Senator Adler commented the argument seems to be over technicalities. He declared the provisions of section 2 makes the volunteer crossing guard an employee of the police department so there would be no question that once the volunteer is trained and working he would be considered an employee. Sheriff Keller responded that section should be stricken because he would like to provide volunteers with less training if possible. Senator Adler pointed out the bill includes immunity from suit and caps the amount of liability to the sheriff's department. He said he does not anticipate any lawsuits would be brought under the bill. He offered the opinion if the volunteer does not have good-faith immunity under the provisions of the bill, as a volunteer employee of the police department, someone might make the argument that the crossing guard could be sued. He declared the way the bill is written it would almost guarantee the crossing guard would be sued as an individual. He stated as an attorney he would advise any person considering becoming a volunteer not to do so if the bill should pass as written, because he does not believe it provides protection for the volunteer. Sheriff Keller said he recognizes the issue is complex. He repeated his concern another layer of safety should be created, but added he does not want every person who assists a child across the street to be considered an agent of METRO simply to provide indemnity. He asserted the provisions of the bill would protect volunteer crossing guards and remove them from liability either as individuals or under their own insurance. Senator Adler reiterated his belief section 2 would exclude volunteers from liability, but further provisions of the bill would return the liability to the volunteers. He voiced his opinion the volunteers would have to be considered agents of the police department in order to have the good-faith immunity under the government immunity law, NRS 41.0305. He opined all METRO volunteers would be considered agents of the department under that statute. Senator Adler stated he does not feel it would create a problem because there is a cap on liability and the section requires a higher standard for suit. He suggested the department may want to have the volunteers considered agents. Sheriff Keller responded, "I'm not going to select them. All I'm going to do is provide a trainer to work with them in a classroom." He admitted the responsibility should not lie with the Clark County School District because the school crossing guards work for METRO. He pointed out the program is sponsored by parents, not the police or the school. Senator Adler interjected the liability could not be limited to $50,000 if the volunteer is working independently of the police department. Sheriff Keller countered the law-making board of the state could enact such a provision. Senator Adler denied the assertion and explained: Limited liability has to do with sovereign immunity. Sovereign immunity is immunity which is given to the ... governmental entity. That's where that flows from, so if there's no connection between the volunteer and the governmental entity, we can't grant that immunity on a private individual. Senator Adler claimed there would have to be some connection with either the school district or the law enforcement entity in order to grant immunity. He stated to make use of the immunity provisions of the statutes the volunteer would have to be considered an employee or agent of a public entity. Senator James acknowledged he is trying to determine how the immunity would work under the statutes. He declared, "The government has immunity, period, and has to waive it. In Nevada we've waived it to the tune of $50,000." He voiced his understanding if an employee is acting under the course and scope of his responsibilities he will not be personally liable. He suggested this raises the question of discretionary or nondiscretionary actions. Senator James stated there is limited immunity for employees of the state. Section 2 would provide that same immunity provided to employees, just as it has been provided for volunteer fire fighters and certain other volunteers, he indicated. Sheriff Keller pointed out reserve police officers, search and rescue volunteers or volunteer paramedics, who receive governmental immunity, receive hundreds of hours of training and he would expect them to be covered. Senator James posed a question as to what the extent of liability for the state, as an employer, would be in a situation where an employee is negligent. He implied S.B. 120 would give volunteers immunity under the "good Samaritan" statute, wondering what the liability would be for the entity on whose behalf they are acting. He stated it would be $50,000 under the public indemnification provisions of the law. He asked what scenario would make the police department liable. Sheriff Keller declared he would not wish to create a measure that would have be deciphered to determine if fault had occurred. He proposed: Can we make someone who stops to assist, not an agent of government, and give them some protection so they have the commitment to stop and help, say, `Don't step in the hole.' You don't have to be trained in how to tell people not to step in a hole.... And if they do, ... would that person be liable ... if they warned you and you stepped in the hole anyway, or if they failed to warn you? Senator James responded that could not be done. He stated the traditional rule is if a person is drowning, and someone tries to save the person and makes it worse, the rescuer can be held liable. He declared there must be some training so that volunteers could not make situations worse. Senator Adler interjected since training is included in the bill and the volunteers receive that training, the police department would not be liable for inadequate training. Sheriff Keller asked if he really needed the bill to make the children of Clark County any safer if all he would be required to do is give all volunteers 45 minutes of training to make them agents of the department and they would be covered to the $50,000 limit. Senator James observed those volunteers would have to be included in the waiver of immunity statutes in order to receive the immunity. Senator Washington inquired if the volunteers are not already included under section 2. The response was affirmative. Mr. Cram announced he is having difficulty understanding the problem, but he agrees the concept is commendable. He suggested the first objective should be to obtain immunity for the volunteers. If they cannot be granted immunity, he proposed liability should be limited and a legislative trust fund should be established to provide coverage for whatever entity sponsors the program, such as the police department. He admitted there may be some lawsuits, but he offered the opinion there would not be many cases that would fall under the program. Mr. Cram advised the committee to consult legal counsel to see if his proposals are possible. He submitted the trust fund would not have to be funded with a great sum. Senator Adler pointed out there also could be a problem regarding industrial insurance. He suggested the training portion of the bill should be retained and the limits on liability should be similar to those for volunteer firemen with a deemed wage according to the requirements of the State Industrial Insurance System (SIIS). He stated the volunteers should be covered by SIIS so if they are injured they could not sue either the school or the police department and they could file a normal claim. Returning to Mr. Cram's suggestion, Senator Adler agreed a trust fund might be a good idea to provide a measure of coverage. Senator Lee brought up a new concern. He pointed out there would be legal fees if the volunteer is sued, whether or not the suit is legitimate, and he questioned who would be responsible for the legal fees. He stated he would not be party to a measure that would impose an obligation for legal fees upon a volunteer. Senator James responded the bill would insure that the volunteer would not be left without legal coverage because the volunteer would be deemed an employee of the state and legal assistance would be provided by the district attorney. Senator James stated S.B. 120 is drafted exactly the same as all other measures in Nevada under the "good Samaritan" statute. He noted the bill provides that the volunteer is an employee for purposes of the act of serving as a crossing guard, it makes a promise of representation, it addresses liability and it gives immunity. He compared the wording of S.B. 120 with that of the statute protecting volunteer firemen and found the language identical. He pointed out there is nothing different in S.B. 120. Senator James cited a case setting a standard for making a representation regarding a charge of affirmatively caused harm. He read the Supreme Court of Nevada interpretation of the case: As used in Section 41.0336, ... affirmatively caused harm means that for a fire department or law enforcement agency to be liable for the negligent acts or omissions of its firemen or officers, a public officer must actively create [a] situation which leads directly to damaging results. Thus for [the] deputy sheriff that administers field sobriety tests, the driver of automobile ... failed test, deputy did not arrest driver but ordered him to park his car along the side of the road and made arrangements for [the] driver's mother to come to scene and drive him home. Deputy left the scene to respond to another call, [the] driver resumed driving in violation of [the] deputy's order and was involved in fatal accident. [The court found an] action for wrongful death ... could not be maintained against a sheriff's department or deputy pursuant to this statute. Senator James explained the action could not be sustained because the deputy's conduct was not active. He pointed out liability would only be present if harm is actively created. He said there is case law to support the interpretation of when an agency would or would not be liable. Senator Titus said: If this language is the same that's in the statute, then what we are saying here is that the ... $50,000 limit is still in place even with this statute. So that total liability that you said and you thought that this provided ... was under the $50,000 but you have to prove certain kinds of negligent acts." Senator Titus declared she would have no problem accepting the language of S.B. 120 if the language sets the $50,000 limit of liability. Senator Porter asserted the problem points up a "great travesty of our society" because nobody is willing to take responsibility. He recited his obligation as an elected official is to protect the organization and to protect the citizen. He said: As I read the law, we're protecting everyone but the volunteer, and we're here to represent the volunteer as well as the organization. I see nothing here that protects that particular person that volunteers their time. Which brings us right back to where we started. It is truly a travesty. Senator Porter asked Sheriff Keller, "Currently in your crossing guard program ... there are national criteria set.... Are all those that meet the criteria being protected now by crossing guards?" Sheriff Keller answered all crossings under the criteria are not protected. He stated he cannot hire enough people at just over $6 per hour for just 1 hour in the morning and 1 hour in the afternoon, only 10 hours per week. He said most of the paid crossing guards are senior citizens who serve primarily to make a goodwill gesture, but who are also compensated. Senator Porter asked if the department is subject to exposure already by not covering crossings at places that meet the national criteria. Sheriff Keller confirmed the query and said, "I have exposure when I can't hire enough police officers either." He reiterated the difficulty is finding people who are willing to assume the responsibility who would only work for an hour each morning and evening for $6.30 each time. Senator Porter reported the City of Henderson pays $7.25 per hour and the guards are present all during the school day to promote social interaction between seniors and youngsters. He said Henderson employs 53 crossing guards at a cost of $220,000 per year. Pointing out that Henderson is a different situation, Sheriff Keller conceded he could hire 200 people if he could pay them for full-time employment at $7.25 per hour. He acknowledged it may be that he should form a Las Vegas METRO volunteer crossing-guard corps to resolve the issue. He admitted he hoped to avoid that and he hoped to have a process in place in which a parent could volunteer to help in his own neighborhood without fear of being sued. Senator James interjected parent-volunteers are also needed in places that are not warranted under the federal standard. He declared: I have to repeat myself. Lest there be any - any - misunderstanding whatsoever about this, because it keeps being stated, that we are not protecting the volunteer. That's exactly what we're doing. I represent the volunteers too.... That's what we're doing in section 2.... We're making them `good samaritan' employees of the state.... Senator Adler agreed with Senator James. He stated he recognizes S.B. 120 concurs with NRS 41.0339 which mandates counsel would be provided for volunteers through the Office of the District Attorney unless there had been intentional acts outside the scope of their duties. He acknowledged he had been opposed to part of the bill but he now feels that the bill should be passed to specifically protect crossing guards. Sheriff Keller asked if the bill would give protection with 45 minutes of training. Senator Adler stated he does not believe there would be any problem, and even if problem should arise, he said, the district attorney would have to handle it. Sheriff Keller asked if the bill would provide the same $50,000 cap on liability. Senator Adler confirmed the query and explained it would provide the same limits as those for volunteer firemen. He repeated he would have no problem with the bill if that is the correct interpretation. Senator James suggested removal of section 2 subsection 2 which provides that the school district would have to create the training program. Senator James declared the deletion would allow the training program to be created and executed by METRO without making specific mention of who is to set up the training. He voiced his understanding it would "give the same kind of immunity, limited though it may be, to the different parties involved." He surmised it would not create a category any different than those that apply to other volunteers. Sheriff Keller asked if it would apply even if the parent volunteers came to METRO with a request for training, not wherein METRO would solicit the parents. Senator James replied it would protect the volunteer parents as long as they go through the program because the bill states "if he has successfully completed a training course...." Regarding legal representation, Senator James voiced his understanding S.B. 120 would provide the same coverage as other volunteer statutes. Victoria D. Riley, Lobbyist, Nevada Trial Lawyers Association, declared research performed by the subcommittee, with the assistance of the Legislative Counsel Bureau, tended to provide the same exclusion in the law that current unpaid fire fighters have. She opined that is provided by S.B. 120. Senator James asked if the bill is acceptable if it provides the same coverage as is presently provided for volunteer fire fighters. Sheriff Keller replied: If I have to accept the responsibility [in order] to apply the liability cap for suit protection to them like I do police officers, absolutely. The kids have got to be safe. They're unsafe now. They can be safe tomorrow if you pass the bill. Senator James reminded the sheriff a training program would have to be provided and the parents would have to complete the program. Ms. Riley added the parent volunteers will have to be informed that they must participate in the training course to take advantage of the indemnity. Mr. Cram suggested it would provide consistency to drop reference to the school district in section 3 on line 13 and in section 4 on lines 5 through 7. Senator Adler said he would not exclude all school district language because some school districts manage the crossing guard programs. He proposed retaining "generic" reference to school districts. Senator James reiterated his suggestion to remove the portion of section 2 that makes a requirement for the school district to create the training program. He approved Senator Adler's suggestion to retain the portions of other sections that would provide immunity to persons in other parts of the state where the school district may oversee the crossing guard program. He advocated retention of the language on the first page, line 4, for "a person who volunteers to a county school district" and also retention of line 13. He explained the reference to the school district would only apply if the school district has set up the crossing guard program, so it would not apply in Clark County because the program there would be instituted by the sheriff. Senator James told Mr. Cram the portion directing the board of trustees of a school district to implement the training would be deleted from the bill. Mr. Cram voiced acceptance of the change. Senator Porter requested clarification of lines 10 through 17 on the second page under section 4, subsection 2. He asked if it would open the limits of an insurance policy to exposure. He pointed out it appears to make no limit on a judgement against an insurance policy. He wanted to know if it meant an injured person could not only collect the $50,000 but also could collect against a homeowner's insurance policy. Senator Adler said the reference is to the injured person's policy, not to that of another person. Senator James stated, "It just means that there could be some separate contractual liability for harm that you could still recover." The senators agreed the liability would go against the driver of the car. Senator James indicated there could be another insurance policy to which the judgement might apply. He declared it would not apply to the crossing guard unless the crossing guard purchased insurance specifically for that purpose. Senator James stated: You've got to have a predicate for liability, first of all, and we're taking that predicate and making it only under the circumstances that are limited in the statute.... If you're acting in the course of your responsibilities and your training, you're not going to be liable. SENATOR LEE MOVED TO AMEND AND DO PASS S.B. 120 AS STATED WITH THE DELETION OF SUBSECTION 2 OF SECTION 2. SENATOR ADLER SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. * * * * * Senator James voiced appreciation for the testimony and efforts of members of the committee and testifiers. He adjourned the meeting at 10:30 a.m. RESPECTFULLY SUBMITTED: Judy Jacobs, Committee Secretary APPROVED BY: Senator Mark A. James, Chairman DATE: Senate Committee on Judiciary March 8, 1995 Page