MINUTES OF THE meeting
of the
ASSEMBLY Committee on Constitutional Amendments
Seventy-Second Session
May 2, 2003
The Committee on Constitutional Amendmentswas called to order at 11:51 a.m., on Friday, May 2, 2003. Chairman Harry Mortenson presided in Room 3161 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
Note: These minutes are compiled in the modified verbatim style. Bracketed material indicates language used to clarify and further describe testimony. Actions of the Committee are presented in the traditional legislative style.
COMMITTEE MEMBERS PRESENT:
Mr. Harry Mortenson, Chairman
Mr. Bob McCleary, Vice Chairman
Mr. Don Gustavson
Mr. William Horne
COMMITTEE MEMBERS ABSENT:
Mr. Rod Sherer, excused
GUEST LEGISLATORS PRESENT:
None
STAFF MEMBERS PRESENT:
Donald Williams, Committee Policy Analyst
Michelle L. Van Geel, Committee Policy Analyst
Sheila Sease, Recording Committee Secretary
OTHERS PRESENT:
Lucille Lusk, Nevada Concerned Citizens
Andrew List, Nevada Association of Counties
Chairman Mortenson:
The Committee on Constitutional Amendments will come to order. [11:51 a.m.] Madam Secretary, please call the roll. [Roll was called.] We do have a quorum. Assemblyman Sherer asked to be excused.
We will start by hearing A.J.R. 1 of the Seventeenth Special Session and A.J.R. 9 together.
A.J.R. 9, in effect, will work only on A.J.R. 1 of the Seventeenth Special Session because whatever provision we choose for the compensation of county commissioners is applicable to A.J.R. 9.
Assembly Joint Resolution 9: Proposes to amend Nevada Constitution to require each board of county commissioners to determine salaries of certain county officers in its respective county. (BDR C-1301)
Assembly Joint Resolution 1 of the Seventeenth Special Session: Proposes to amend Nevada Constitution to revise certain provisions relating to system of county and township government and compensation of certain elected officers. (BDR C-27)
Chairman Mortenson:
In my opinion, A.J.R. 1 of the Seventeenth Special Session was more or less a disaster bill. I am not sure we had anyone who testified in favor of the bill, and it needs lots of work. In fact, I believe we will not finish it in this work session. We will probably continue it to another one or two meetings.
Those testifying may direct their testimony directly to members of the Committee, not necessarily through the Chair. Please remember to turn on your microphones before speaking.
I believe we will go through the bill piece by piece and suggest amendments. Then, we will have the amendments drawn up and review them at the next Committee meeting and comment further.
The first section that is amended is Section 33A: “The Legislature shall provide by law for a citizens’ commission on salaries for certain elected officers.” It goes on to describe how the commission is to be set up and how it is constituted. The commission will literally dictate the salaries of virtually every elected official.
[Chairman Mortenson continues.] In the testimony, we heard so many objections to the formation of the committee. A committee was to be appointed by the people who would have their salaries determined, irrevocably, by that committee. I would like to hear some discussion from the Committee. I personally think that is a very bad way to proceed.
Assemblyman McCleary:
I don’t like the provision, and I will tell you why. The founders of this state had designated the Legislature as the body to determine those salaries. I think we are pawning this off on someone else because we don’t want to stand up and take the courage to do what is right. It is our duty to do it, we need to do it, and we need to stick to it.
My other problem with this is that this commission would not answer to the people. They really don’t have any consequences, even though they would hold public hearings, but, if the Legislature were to do something out of line, the people have recourse.
Assemblyman Gustavson:
I pretty much agree with my colleague [Mr. McCleary] from southern Nevada. I think our founding fathers had a great deal of wisdom when they put the Constitution of the State of Nevada together. There is a reason why the duty was given to us originally, and we should probably stick with it.
[Assemblyman Horne arrived at 11:58.]
Chairman Mortenson:
We are on A.J.R. 1 of the Seventeenth Special Session. This bill is probably the one bill we got 100 percent testimony in opposition to many of its provisions. We are currently going through the amendments one at a time. We are currently discussing the compensation for county commissioners.
The bill established that a committee appointed by both the Legislature and the Governor would mandate salaries. We heard a great deal of testimony against that provision. A body appointed by officials shouldn’t determine what those officials’ salaries are.
We have just heard the opinions of Assemblyman McCleary and Assemblyman Gustavson. Essentially, they have stated they did not like the idea of the commission. Do you have an opinion on that?
Assemblyman Horne:
I would be inclined to agree. For the most part, I think it could be a good idea to have separate individuals whose function it is to set salaries. They made a good point that the legislators are elected to perform that function, and, if that means sometimes having to “dance with the flame,” I guess that is what we are elected to do as well.
Chairman Mortenson:
I am going to play the devil’s advocate in this issue. I don’t approve of an appointed commission setting the salaries, because there is not much recourse by the citizenry.
Yes, the Constitution stated the Legislature will set those salaries, but, if you talk to many of the longer-serving legislators, they say it just isn’t working under the current law, because many elected officials have gone several years without any raises, including the legislators themselves. The system is not working the way it supposed to, and I don’t think there is much this Committee can do to make it work.
I do have one alternative that I found in the Constitution of the State of California. It requires the governing body of each county to adopt ordinances setting the compensation of its members. But the ordinances prescribing the compensation are subject to a referendum. In other words, the county commissioners can pass an ordinance raising their salaries, but it is up to the citizenry to ratify it. I throw that out as one possibility.
Ms. Lusk has had some very good ideas.
Lucille Lusk, representing Nevada Concerned Citizens:
[Introduced herself.] My suggestions are found under Tab B of the work session document (Exhibit C). I would be happy to answer any questions with regard to the proposals.
Chairman Mortenson:
Ms. Lusk, would you please review the suggestions for the Committee?
Lucille Lusk:
The idea is very much like what some of your Committee members have already stated. The Legislature, in fact, has this responsibility and should face up to the responsibility.
My idea would put in place certain provisions requiring that action be taken in every legislative session to review these salary questions so that they are kept small enough to be reasonable to consider. After 8, 10, 12, or 15 years, it is no longer reasonable and “everybody goes crazy.” But if every legislative session those salaries were required to be reviewed, then the numbers would be reasonable.
We also suggested that the LCB [Legislative Counsel Bureau] is the appropriate agency to provide research on comparative salaries, as opposed to the establishment of an entirely new system to do it. You have a very fine staff. That research could be done in the interim period. It should certainly not be loaded on them during a legislative session. There would be some comparatives that legislators would then use to determine what should be considered. One choice is perhaps a comparison with the public and private sectors, or those kinds of things.
Along with that, we clearly need a constitutional change to specify that legislators should be paid for every day of service. We talked about that in one of the previously heard bills. The question of postage is fairly “iffy.” I believe the Committee has decided not to address that at this time, because of the potential confusion.
Apparently, the Committee needs to address the fact that county and township governments should be uniform. It is my opinion that the intent of that specification in the Constitution was that all counties and townships should have an elected form of government, not that all the salaries should be the same. However, I have been told that there has been what I consider to be a misinterpretation on the part of some lawyers that it may mean that salaries have to be the same. If that is so, you may wish a clarification in the Constitution.
Chairman Mortenson:
I talked to you briefly about the suggestion to use the California style where the commissioners set their salaries, but they are ratified through a referendum of the people. Please give us your opinion of that proposal.
Lucille Lusk:
I certainly have no problem with that. However, it is such a significantly different concept from anything that has been discussed. If the Committee is going to pursue something similar to that, it should probably be noticed, so that all the interested parties can have an opportunity for input.
Chairman Mortenson:
I don’t believe we will adopt any proposals during this work session. I simply wanted your opinion of that proposal. A.J.R. 1 of the Seventeenth Special Session still needs a lot of work.
Lucille Lusk:
I, personally, have no problem with the proposal. It is an unusual concept. I think one might argue that, if that concept were the one being put in place for county commissioners, perhaps the Legislature would want to do the same for its own salaries, making theirs subject to referendum. That creates a whole new discussion.
Chairman Mortenson:
I agree. Are there any questions for Ms. Lusk?
Assemblyman McCleary:
I don’t have a question for Ms. Lusk, but I do have a comment on the California language proposal. I am leaning against that, and I will tell you why. I received e-mails, phone calls, and correspondence that make comments like, “You people need to get out of your limousines and see what traffic is really like,” or “You people are overpaid.” I don’t think the people understand what salaries we are earning here and how many legislators are suffering.
It is our constitutional responsibility, and I stand on that. I think we need to make that decision, regardless of whether we are purged as a result. We need to preserve this institution for those who will follow after us.
Chairman Mortenson:
If all the legislators were like Assemblyman McCleary, there would be no problem. We would “bite the bullet and do all these things.” Unfortunately, that is not the case. Mr. List.
Andrew List, Nevada Association of Counties:
[Introduced himself.] I would like to express our gratitude for Assemblyman McCleary’s views. I think he has a good point. It is the duty of this body to set those salaries as stated in the Constitution.
[Mr. List continues.] I would like to point out that this system is somewhat, if not entirely, broken. It is somewhat dysfunctional, at this point. We do have several salary bills in process at this point, which we are pushing and hoping will be successful. If they are passed, this constitutional amendment might not be necessary. We would appear before this body every 2 years to ask for cost-of-living adjustments for county elected officials.
The numbers that we arrived at in our salary bills came from an existing salary commission. I wanted to bring that to the attention of this Committee. It is authorized in NRS [Nevada Revised Statutes]281.157 through NRS 281.1575. That is a salary commission of nine members appointed by the Speaker of the Assembly, the Majority Leader of the Senate, the Governor, and the Supreme Court, and so forth. What the existing salary commission does is study the salaries and return to the Legislature with a recommendation. This commission is also allowed to submit a bill draft request, if they feel it is necessary. So, there is already an existing salary commission in statute. It is this salary commission that arrived at the salaries proposed in A.B. 256 of the Seventy-First Legislative Session, which the Nevada Association of Counties sponsored, but were unsuccessful in their efforts due to the time constraints in the waning moments of the session.
This salary commission is already in law, and nothing else would need to be added. If their recommendations are taken seriously, and the Nevada Association of Counties returns every 2 years, the system might work. However, as I said earlier, the system is dysfunctional. If the system does not work this time around, and I am talking about legislators, constitutional officers, and county elected officials, if you and the other elected officials are not given raises, clearly something will need to be done in the near future.
Chairman Mortenson:
Thank you, Mr. List. Are there questions for Mr. List from Committee members?
Assemblyman Gustavson:
I can see the point that many state and county officials have not had raises. But I voted against the bill, this particular one for the county sheriffs and DAs [district attorneys], because it called for such a large increase. I understand why, and most of us in this body do, but the public can’t understand such a large increase. Maybe, if we went back and didn’t ask for such a large increase, something within reason every session, we would get those salaries up to where they should be, and the public would accept it much easier. People cannot comprehend that, just like the 300 percent retirement a few years back. The percentage only amounted to $25, but shown as the percentage, the press just blew it out of proportion, and the same thing will happen with the county increases.
[Assemblyman Gustavson continues.] In looking at A.J.R. 1 of the Seventeenth Special Session, it is asking for the Legislature to set up a committee to establish their salaries, and, yet, we want to ask the county commissioners to set their own salaries. It is contradicting itself in the original bill. It sets the commission for the legislators, yet tells the county commissioners to set their own salaries.
Andrew List:
I see your point there. This is not a hearing on the elected county officials’ salaries, but I would like to point out, for your benefit, that, currently, we are doing what we can to get those bills through. We are talking about phasing in the elected county officials’ salaries over time, half now and half later, so it doesn’t look so big to the public.
Again, these figures came from an existing salary commission last session. A.B. 256 of the Seventy-First Legislative Session salaries will be raised from those figures by cost-of-living adjustments placed into the current bills. I think the existing salary commission is a good body, and, if their figures were passed into law, they would be made legitimate, and the public could buy into them.
Getting back to your point about the county commissioners, it is a little known fact that Senator Care noted that the legislative body has no constitutional authority to set the wages and the salaries of the county commissioners. If you look at Article 4, Section 32, it lists the elected officials, but it does not list the county commissioners. That may be where A.J.R. 1 of the Seventeenth Special Session, by allowing the county commissioners to set the salaries of other folks and pulling their own salaries from somewhere else, came from.
Chairman Mortenson:
Doesn’t that section also say “and other elected officials?”
Andrew List:
I don’t know the exact words of the section, but it does not say “and other officials.” I know that it does not say county commissioners, but it does list clerks, treasurers, recorders, and public administrators.
Chairman Mortenson:
I am aware of at least one amendment that the Committee desires in the bill. There should be clarification of what the word “uniform” means. The bill needs to say that it applies to the procedures for election of county officers but does not pertain to salaries. I think everyone agreed with that change. Those commissioners in very small counties should not have the same salaries as those in counties like Clark County.
Andrew List:
Ms. Lusk noted the uniform systems of government. I think it has been the legal opinion of the Legislative Counsel Bureau, in the past, that it does not include salaries. The reason is the classification system currently in the elected officials’ salary bill. That system of classes, one through six, was set up and found to be constitutional under the language of the Nevada Constitution. That is the system of uniform government.
Ms. Lusk also just provided me a copy of Article 4, Section 32. It does not say “other elected officials.” It talks about county clerks, county recorders, auditors, sheriffs, district attorneys, and public administrators.
Chairman Mortenson:
I guess by omission, it does omit county commissioners. If that is not in the Nevada Constitution, perhaps we might consider, if it were the will of this Committee, either putting it into the Nevada Constitution, or the California method where they set their own salaries but must have approval through a referendum of the people, or simply set their salaries by themselves.
Assemblyman Gustavson:
To clarify, we could set the salaries by law, since it is omitted in the Constitution?
Chairman Mortenson:
Yes. Any of those options could be legislated.
Assemblyman McCleary:
I would like to ask our research analysts a question, and they could consult with legal staff. It is my understanding that, when things are not clear in the Constitution, and, yet, they have always been done a certain way, it sets a precedent. Is that true? Do we really need to address this?
We’ve always set their salaries, and, if they really believed they had the authority, they would have done it themselves. Do we really need to address this issue?
Don Williams, Chief Principal Research Analyst, Legislative Counsel Bureau:
[Identified himself.] We may want to defer to our legal counsel regarding this. The statements made earlier regarding Section 32 and the statement that we could provide something by statute, if it was not currently clear, is usually the opposite of that.
If it is spelled out in the Constitution a certain way to limit something, then typically we go with the limitation. The Constitution would normally need to be amended to address something.
The issue of the county commissioners’ salaries needs to be put before our legal counsel for an opinion.
Chairman Mortenson:
Mr. Williams, would you please check with the legal counsel on behalf of this Committee?
Don Williams:
We are not planning on processing A.J.R. 1 of the Seventeenth Special Session today, I believe.
Chairman Mortenson:
We will probably carry this bill for another couple of meetings, because there is so much yet to be done.
Essentially your question to the legal staff will be, “If, under the Constitution, the Legislature sets the salaries of the commissioners, and, if the answer is no, does it appear anywhere in legislation as to who sets their salaries? Or, is there a big void in this area?”
Don Williams:
I will ask those questions, Mr. Chairman.
Chairman Mortenson:
I will close the discussion on A.J.R.1 of the Seventeenth Special Session. I have a list here of six potential amendments [Exhibit C], and we have taken care of the second one dealing with uniform systems of county and township government.
How does the Committee feel regarding the issue of uniform county and township government? Do you feel that includes salaries, or that it should not include salaries and only pertains to the method of election?
[Discussion off microphone.] It is unanimous then, we will need an amendment that specifies it does not include salaries.
Amendment 4 addresses salaries.
A.J.R. 1 of the Seventeenth Special Session contained a provision on page 4, at the top, stating, “The Legislature shall provide for their election by the people or their appointment.” I think the testimony of everyone present was that we do not appoint elected officials. Are there any comments from the Committee?
Assemblyman Horne:
I was under the impression that the provision was for those occasions when a vacancy occurred.
Chairman Mortenson:
It doesn’t specify that. It just says “or their appointment.”
Then, it is unanimous among the Committee members that we amend page 4 to delete “or their appointment.”
Another potential amendment to the bill is whether or not to repeal Section 9, page 5, lines 2 and 3. That section essentially says, “The Legislature may, at any time, provide by law for increasing or diminishing the salaries or compensation.” The big part of that is, “no such change in salary shall apply to an office during the term in which they have been elected.”
In other words, if we repealed that section, then the Legislature could change salaries and make them effective immediately. There was a large objection to that. It appears the Committee is unanimous regarding an amendment to reverse that.
Assemblyman McCleary:
Item 3 of Tab A of Exhibit C is a proposed amendment of whether or not a board of county commissioners should set their own salaries. Did we agree on that amendment?
Chairman Mortenson:
It has been noted by Mr. List that the Constitution does not actually say we will set the salaries of the county commissioners, so we are waiting for a legal opinion on that.
Let’s go back to suggestion 1: whether or not to establish a commission to set salaries. We may still need some direction on whether we are going to retain the ability to set the salaries, and, then, whether we are to set up a citizens’ commission that will advise us in that respect. Actually, we would amend that section, because, in the bill, that citizens’ commission mandates the salaries, but the proposed amendment suggests the commission would recommend the salaries. The Legislative Counsel Bureau can research that. They are a good analytical body that can look at what other states do and make a recommendation.
Michelle Van Geel just reminded me that we are discussing state government in this section, because commissions already exist for local government. Do we, for salaries of state officers, set up a commission, or should we let the Legislative Counsel Bureau make a recommendation?
Assemblyman McCleary:
I like Ms. Lusk’s idea. With just a phone call to the LCB, they could be instructed to research this for us.
Assemblyman Gustavson:
I agree with Mr. McCleary.
Chairman Mortenson:
I agree, also. We still have a quorum.
We need to have a proposed amendment that would state the LCB would recommend salaries for state elected officials.
I think that exhausts A.J.R. 1 of the Seventeenth Special Session, and we are as far as we can go at this time.
I received an e-mail about the commission setting the recommendations for their salaries. It would be like Casablanca, where they would round up the usual suspects, the rich and the famous. I like LCB myself.
We will not get the amendments from the Legal Division for A.J.R. 7 today, so we will not hear this bill today. If there is no further business before the Committee, we are adjourned [at 12:32 p.m.].
RESPECTFULLY SUBMITTED:
Cindy Clampitt
Transcribing Committee Secretary
APPROVED BY:
Assemblyman Harry Mortenson, Chairman
DATE: