MINUTES OF THE meeting

of the

ASSEMBLY Committee on Government Affairs

 

Seventy-Second Session

April 3, 2003

 

 

The Committee on Government Affairswas called to order at 8:11 a.m., on Thursday, April 3, 2003.  Chairman Mark Manendo presided in Room 3143 of the Legislative Building, Carson City, Nevada, and via simultaneous videoconference, in Room 4406 of the Grant Sawyer State Office Building, Las Vegas, 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.

 

 

COMMITTEE MEMBERS PRESENT:

 

Mr. Mark Manendo, Chairman

Mr. Wendell P. Williams, Vice Chairman

Mr. Kelvin Atkinson

Mr. Chad Christensen

Mr. Tom Collins

Mr. Pete Goicoechea

Mr. Tom Grady

Mr. Joe Hardy

Mr. Ron Knecht

Mrs. Ellen Koivisto

Mr. Bob McCleary

Ms. Peggy Pierce

Ms. Valerie Weber

 

COMMITTEE MEMBERS ABSENT:

 

None

 

GUEST LEGISLATORS PRESENT:

 

Chris Giunchigliani, Assemblywoman, Assembly District No. 9

Senator Bob Coffin, Clark Co. Senatorial District No. 10

Morse Arberry Jr., Assemblyman, Assembly District No. 7

Vonne Chowning, Assemblywoman, Assembly District No. 28

STAFF MEMBERS PRESENT:

 

Susan Scholley, Committee Policy Analyst

Eileen O'Grady, Committee Counsel

Nancy Haywood, Committee Secretary

 

OTHERS PRESENT:

 

Laura Fitzsimmons, Las Vegas resident

Skip Parker, Las Vegas resident

Ben Contine, Chair, Clark County Advisory Committee on Helicopter Noise

Robert Hanson, Las Vegas resident

Teresa Morrow, Las Vegas resident

Chris Saylors, Las Vegas resident

Pam Kasalski, Las Vegas resident

Dan Musgrove, Director, Office of the Clark County Manager

Scott MacKenzie, Executive Director, State of Nevada Employees Association (SNEA), Local 4041

James R. Richardson, citizen

Rick Bennett, citizen

Danny Thompson, President, Nevada AFL-CIO

David Schumann, Independent American Party

Lucille Lusk, Nevada Concerned Citizens

John Wagner, Nevada Republican Assembly

Ron Dreher, Peace Officers Research Association of Nevada

David Kallas, Detective, Executive Director, Las Vegas Police Protective Association

Mick Gillins, Nevada Conference of Police and Sheriffs

Gary Wolff, Nevada Highway Patrol Association

Stan Olsen, Nevada Sheriff’s and Chief’s Association

Rose McKinney-James, Clark County School District

Wayne Carlson, Executive Director, Nevada Public Agency Insurance Pool

Mike McCormick, Deputy District Attorney, Douglas County

Gary Peck, American Civil Liberties Union

Richard L. Siegel, Ph.D., President, American Civil Liberties Union of Nevada, Professor, Political Science, University of Nevada, Reno

Kathy Stoneburner, Legal Research Secretary, Alliance for Workers’ Rights

 

Chairman Manendo welcomed all Committee members and visitors, in Carson City and in Las Vegas, to the Committee on Government Affairs and called the meeting to order at 8:11 a.m.  The roll was called, and he directed the secretary to mark Committee members present upon their arrival.  The Chair commented to all that the temperature in the hearing room was difficult to control; he recommended wearing a jacket if it became too cold.  The Chairman opened the hearing on Assembly Bill 355 and welcomed the bill’s sponsor, Assemblywoman Chris Giunchigliani, to the witness table.

 

 

Assembly Bill 355:  Provides for exemption from personal property taxation for certain commercial helicopters that use preferred facility for takeoff and landing in certain larger counties. (BDR 44-877)

 

Chris Giunchigliani, Assemblywoman, Assembly District No. 9, as the sponsor of A.B. 355, introduced the bill.  As this hearing was teleconferenced to Las Vegas, Ms. Giunchigliani believed that many constituents were there to testify on the bill as well.

 

Basically, the genesis of the bill was a continuation from the Seventy-First Legislative Session.  The Legislature, in 2001, passed a piece of legislation that created a task force in the southern part of the state to deal with the issue of helicopter noise and safety in the residential areas.  That task force had been meeting but had not concluded its business yet.  One of their recommendations resulted from a recent issue with a helicopter company that requested a special use permit from the City of Las Vegas to create another helipad at the Castaways, right in the middle of another residential area, which would compound the issue of noise.  The group was already working on how to abate the noise.  The Planning Commission voted down the special use permit after hearing testimony from the task force members.  It was appealed to the City Council, but they also voted it down.  That put the issue in abeyance. 

 

Part of the bill was to include a moratorium because it was difficult for neighborhoods, especially for those who lived in the urban core where the flights of the helicopters tended to cluster.  It was also difficult for the task force to organize and attend every city council meeting, and the North Las Vegas, City of Las Vegas, and Clark County commission meetings.  Part of what was being asked was a moratorium on special use permits for the purpose of zoning.

 

The second part, which was contained within the bill itself, was to identify an area for relocation, an issue that the task force was working with the airport to find.  They were also searching for a way to encourage relocation to a different area that would deal with the noise and safety issues for individuals in a residential area.  Exhibit C was the result of that effort, an incentive in the form of a tax incentive.  One suggestion had come from one of Ms. Giunchigliani’s constituents to include in that incentive program the one company that was already moving to a new location outside of the urban core.  It was the decision of the task force that that company would also qualify for the tax incentive offered as part of A.B. 355, despite the fact that the company was moving to an area that had not been declared as a preferred area, although it was outside of the urban core area.

 

Language pertaining to the moratorium, although intended by the original bill, was not included.  To clarify and underscore the concept of a moratorium, that language became part of the amendment also.

 

The next handout, Exhibit D, dealt with additional issues beyond the concerns about noise pollution.  Ms. Giunchigliani lived right off of Charleston Boulevard, over which the helicopters tended to return on their routes outside of the Federal Aviation Administration (FAA) established route pathways.  They often cut across neighborhoods, circled around the Stratosphere, and, from early spring through fall, the noise resembled that of a war zone in that downtown area of Las Vegas as well as on the Tropicana side.  Although the desire was not to put the helicopter companies out of business, as the urban cores had grown, there would hopefully be better routes to select.  While there were efforts to change those routes, there would also be incentives for companies to relocate in an area that was neither an urban nor a residential core.  Issues about safety had to be considered.  According to Ms. Giunchigliani, the FAA had just issued a letter directing the helicopter companies off of the routes over the “Strip,” off of Tropicana, and off of Charleston.  According to that letter, they were now to fly over the neighborhoods for safety reasons, because they were flying too close to the Stratosphere.  Ms. Giunchigliani had placed calls to the FAA to find out why the helicopters had been diverted to do exactly what the task force had been working to correct.  She would be concerned if ever there were a crash.  Some of the helicopters flew very low; it was difficult to find out how low as there were restrictions as to the height at which they were supposed to fly.  Beyond noise, safety was an extremely important issue.

 

Assemblywoman Giunchigliani then introduced Senator Coffin who lived very close to her in Las Vegas when both were not in Carson City.  She had asked the Senator to testify on behalf of A.B. 355, and he had generously agreed. 

 

Senator Coffin congratulated Assemblywoman Giunchigliani for bringing the issue forward for the second legislative session in a row.  He hoped that the bill would move forward during the current session.  He said he lived right in the path of those choppers, and he gave first-person testimony to the repeated violations of the rules despite their origin with the FAA and the local airport authorities.  Additionally, he hoped his concerns would be clearly heard:

• The close proximity of the helicopters that flew next to each other or within just a few seconds of each other, so that they might as well be Siamese twins of each other, even triplets sometimes, was a frightening thing.

 

• The noise that ruined spring, summer, and fall evenings for thousands of people in dozens of neighborhoods, not only where he lived on the Lake Mead turn but, also, the downtown tourist corridor where the helicopters flew their clients past the Stratosphere at about 500 feet, waved at other tourists, and then flew downtown to show the clients Fremont Street, was deafening.

 

• Having lived in his neighborhood since 1951, he noted that the helicopters were very new.  The problems caused by them came to the neighborhoods; the neighborhoods did not grow up after the helicopter companies were established.

 

• It was not a necessity for those companies to be where they were or to fly where they flew.

 

• The companies could be relocated, and the incentives were excellent.  They should work to help get the cooperation of those companies.

 

• The Senator had had many neighbors who told him the noise seemed unstoppable.

 

• The special events that occurred required that the helicopters ferry people back and forth to the Racing Stadium and to other locations for a few hours of entertainment.  The Senator believed that was tolerable as that was life in Las Vegas.

 

• The helicopters were extremely intrusive to residents and tourists alike.

 

Senator Coffin concluded his remarks by asking the Committee to seriously consider the bill and to move it forward.

 

Chairman Manendo complimented both Senator Coffin and Assemblywoman Giunchigliani for bringing so many people together in an attempt to solve a very difficult problem.  There were other legislative districts affected similarly by noise, so he was most appreciative of their efforts.

 

Assemblyman Christensen thanked the Senator and Assemblywoman Giunchigliani, also.  He asked about the FAA corridors assigned to the helicopters and suggested that the pilots became a little lazy or, by choice, they took more convenient routes.  He wondered if the task force or others had attempted to communicate the concerns to those companies.  Although he was sure there had been attempts to do so, he was curious about what the efforts had been, and what their responses were.

 

Assemblywoman Giunchigliani reported that last session she had collected a great deal of information about flight plans, pathways, corridors, and routes.  That information was currently available and relevant today.  The County Commission had been frustrated, she reported, but felt their hands were tied because of FAA rules.  However, with the research done on the issues, Ms. Giunchigliani found that the local government established the flight paths, and then the FAA reviewed them and, if it was found to be agreeable, they became reality.  She remained convinced that the County Commission could make changes to those based on the safety and noise factors.  That remained an issue, however, that the task force continued to work on.  There were some companies who were very careful to follow the approved flight paths; there were some that were not.  As the tourist season heated up, the helicopters tended to fly within three seconds of each other, which was not supposed to happen.  The helicopters tailgated each other, basically, as they flew back on their routes, she reported. 

 

There were occasional jazz festivals, to which her neighborhood tended to go.  The helicopters “forgot” that a jazz festival was in progress; she and her neighbors counted the flights over the festival and found that there had been 67 flights in all.  Many contacted their County Commissioners, which resulted in a rerouting of flights during the remainder of the Jazz Festival.  That lasted for one month. 

 

Ms. Giunchigliani emphasized the ability of the companies to reroute the helicopters during that special event and wondered why it was not possible to do that in areas where people lived every day.  The testimony before the task force was compelling, she reported.  The moratorium was absolutely allowable, and the tax incentive appeared to be a fair way to go.  There were 12 companies in Las Vegas that operated helicopters.  She clarified that the tourists were already coming; the helicopter flights were sidebar attractions that afforded the city, the county or the state little new income or revenue.  When tax rolls were pulled, out of all 12 of those tourist companies, approximately $212,000 was generated by the state out of tax revenues.  The majority of the money returned to the businesses.  The tax incentive was, hopefully, a way to encourage companies to relocate outside of the urban corridors. 

 

At the same time, the task force would work with the FAA on altering the routes for the flights to reduce noise and to increase safety.  Ms. Giunchigliani included a handout regarding a helicopter company in Hawaii that challenged the minimum altitude of flight paths and lost in the Supreme Court (Exhibit E).  The task force, according to Ms. Giunchigliani, believed that those companies needed special use permits in order to continue to do business.  If the city or county chose not to issue them, the businesses had no permission to locate in what the task force considered an inappropriate location.  There was at least some involvement by local governments, separate from that of the FAA, to determine the location and routing of helicopters involved in the tourist trade. 

 

Assemblyman Hardy commented on the tax incentive portion of A.B. 355.  He reaffirmed for himself and the Committee that each company taking advantage of the tax incentive would save $18,000 per company if they chose to move their operations to an airport or heliport that had yet to be determined.  His concern was that the tax incentive would encourage more companies to come to the Las Vegas area, creating more air congestion and noise. 

 

Ms. Giunchigliani stated that the tax incentive could encourage more companies to come to southern Nevada.  The task force was not trying to limit the numbers of companies nor was it attempting to put companies out of business.  Its goals were to decrease noise over heavily populated, urban residential areas and to decrease the possibilities of crashes over those areas at the same time.  If a new company wanted to locate in the area, if new kinds of tours were created, if the federal government continued to allow helicopter flights over the Grand Canyon, an issue still undecided, the task force would not object.  It was possible, with today’s technology, to reduce the noise factor considerably.  The task force would continue to encourage companies to move in that direction.  As helicopters were recycled or outfitted differently, the new technology offered equipment options that reduced noise considerably. 

 

Assemblywoman Giunchigliani reminded Committee members of what Senator Coffin had said.  The residents in the urban neighborhoods were there long before the helicopter companies chose to come.  If a new company wished to come in and then applied for a special use permit agreeing to locate at the newly established location, they would qualify for the tax incentive also.  When asked if there was a way to limit the number of takeoffs, flights, and landings, Ms. Giunchigliani said she believed that those issues were still under the control of the federal government (FAA), although she was not sure of that.  She did believe that the task force or county could set the hours of operation, but that, too, remained unclear.  The task force was made up of both citizens and four helicopter operators and would address that more fully than she was able to do.

 

Ms. Giunchigliani then informed the Committee that Dan Musgrove, Director, Office of the Clark County Manager, had just handed her an amendment that, at a glance, seemed acceptable.  As Mr. Musgrove did not have copies for the Committee to be able to review, Ms. Giunchigliani stated that she would read it more thoroughly and would make the copies while other testimony on A.B. 355 was given, as there were many people in Las Vegas eager to be heard.

 

Laura Fitzsimmons, Las Vegas resident, spoke in support of A.B. 355.  With her to testify also was Ben Contine, Chairman of the Clark County Advisory Committee on Helicopter Noise, and Dr. Skip Parker, the former Chair of that Committee.  Ms. Fitzsimmons stated that she was there to offer very strong support for A.B. 355.  Essentially, each person present in the hearing room in Las Vegas had his own personal story of the devastating effect that that particular industry had had on the enjoyment of his or her homes, neighborhoods, and recreational activities.  Ms. Fitzsimmons offered to answer questions regarding the limits to which local entities, local communities, could attempt to regulate those businesses.  She believed it was a unique opportunity to work with the FAA and to observe the interplay of federal law.  As an attorney, she had very seriously researched situations in which businesses affected communities in similar fashion.  A.B. 355, she stated, should not implicate the FAA regulatory framework for those kinds of commercial businesses. 

 

What the bill did was to give an incentive and create a solution, and it was entirely appropriate.  If you wanted to comply and to work with the citizens by moving from McCarran International Airport and adopting flight paths and hours of operation that mitigated the effects of your businesses on the community, the community would then give to you those tax exemptions.  A.B. 355 was a positive effort to address needs, it was entirely legal, it would survive a challenge that might be brought against it, and it did not penalize those who were hesitant to cooperate.  The task force would attempt to deal with mitigating the effects of the flights by companies who did not wish to participate. 

 

Assemblyman Hardy asked Ms. Fitzsimmons if it were possible for a helicopter company to expand its peripheral property, and, as a consequence, the state would lose revenue that was not directly related to the helicopter portion of a business.  Should that be true, he wondered if something else needed to be added to the bill that would place into statute a limitation of the exemption to the helicopter portion of the company that might see the passage of A.B. 355 as an opportunity for expansion.

 

Ms. Fitzsimmons did not hear Mr. Hardy’s questions due to interference with the recording/broadcasting equipment in Las Vegas.  She asked the Assemblyman to repeat his questions.

 

Assemblyman Hardy restated his concerns.  The tax credit exemption that came on property tax was questioned as to the possibility that a helicopter company would expand its operations to include more peripheral property issues that would cause the state to lose more revenue not directly related to the helicopter portion of the operation.  An enterprising business person would come in, buy a helicopter agency, and all surrounding private or business property surrounding that company became tax exempt.  That needed to be prevented.

 

Ms. Fitzsimmons thought that, while that was an interesting question, the language in A.B. 355 would address it.  There were certain requirements by FAA placed on any company calling itself a helicopter company.  Another witness seated with her at the witness table who made comments to her as she attempted to respond to Mr. Hardy then interrupted Ms. Fitzsimmons.

 

Chairman Manendo restated the rules governing the giving of testimony by reminding all witnesses that they needed to introduce themselves for the record and be recognized by the Chair before speaking.

 

Dr. Skip Parker restated his comment to Ms. Fitzsimmons, which was to address Mr. Hardy’s comments.  The preponderance of income from whatever business was involved would need to come from helicopter operations.  It would not be from non-helicopter operations, which might help solve Mr. Hardy’s concerns.  From a legal viewpoint, that was all he had to say.

 

Assemblyman Hardy wished to include Dr. Parker in his next question.  A properly licensed airline company would not qualify for a property tax exemption based on its purchase of 12 helicopters that would cover all other parts of their operation.  He asked if that would be a fair understanding of the bill.

 

Ms. Fitzsimmons responded that it was the actual helicopter that was exempt, not the business.

 

Skip Parker introduced himself as a resident of Las Vegas who was privileged to be the first Chair of the Clark County Commission Advisory Committee on Helicopter Noise during the past year.  In that capacity, the Committee had proposed 14 possible solutions to the noise pollution in Clark County.  Seven of them were passed.  It was important to note, he continued, that those proposals and all of the Committee’s work to generate them had been done without the assistance of the helicopter industry.  The helicopter industry had been noteworthy in that it had pretty much objected to any solutions proposed and, yet, had made no proposals of its own as to solutions to the existing problem.  Any time a proposal had been made, even the development of A.B. 355, the helicopter industry continued to object.  He wanted to openly invite the helicopter industry to step up to the table and offer solutions to the Committee of their own.

 

There had been one exception to that lack of involvement by the helicopter industry.  Mr. Greg Rochna, President of Maverick Helicopters in Las Vegas, had been outstanding as the only helicopter industry representative who had offered concrete solutions that he was willing to do himself.  Dr. Parker had talked with him personally about proposing tax incentives or financial incentives that would help him do his proposed activities at the next Advisory Committee meeting to be held later in April 2003.  Mr. Rochna had planned to take action in two areas.  He planned to move his operations from McCarran International Airport out to a heliport south of Las Vegas along Interstate 15.  He also planned to purchase “quiet helicopter technology.”  Those were the two major changes needed to make the problem go away.  He was taking the initiative to move forward on his own, and the Advisory Committee, Dr. Parker in particular, applauded him for doing so. 

 

Several key points included that few of those, if any, involved in the problem, hated the helicopter industry or wanted to see them out of business.  They were neighbors, too.  What was hated was the incessant, disruptive helicopter noise that destroyed one’s quality of life.  Getting rid of the noise was the primary goal. 

 

It was ironic that, two years ago during the Seventy-First Session of the Legislature in 2001, in the same building in Las Vegas, many people who were present now were present then to testify in support of another bill proposed by Ms. Giunchigliani, A.B. 490 of the Seventy-First Legislative Session, a bill that eventually led to the creation of the Advisory Committee on Helicopter Noise in Clark County.  That bill was gutted and its force removed by a lobbyist, a Southwest Airlines attorney, who had language inserted in that bill eliminating Part 135 carriers, which included the helicopter companies.  Dr. Parker had pleaded with the Committee whom the proponents of the bill looked to for support and protection from ill-conceived solutions.  He had asked the legislators to help pass the bill as stated, not allowing a lobbyist to come in and strip it of its authority.  “Do not allow special interest lobbyists from the airline and helicopter industries to insert language again that would strip the authority of the bill to get the job done,” he had pleaded.

 

Many Clark County residents continued to work in Las Vegas to help the Clark County Commissioners make recommendations to solve the problems discussed with the Committee on Government Affairs.  The helicopter industry had offered no solutions.  It had stood in the way of every solution proposed.  They had objected loudly about each one and voted against each of them.  Dr. Parker had again challenged that industry to step up and offer its own solutions.  There was a real problem dealt with by real people working on solutions.  There was one member of the industry already working on his own solutions; look to him for guidance.  The Advisory Committee truly wished for the industry’s involvement in solving the problems of concern to the citizens of their community.

 

Chairman Manendo thanked Dr. Parker for his service on the Advisory Committee on Helicopter Noise in Clark County and stated that there was an amendment for consideration provided by Clark County that Ms. Giunchigliani had available for distribution.  A copy of the amendment was being faxed to Las Vegas for the witnesses there.

 

Ben Contine, current Chair, Clark County Advisory Committee on Helicopter Noise, lived in one of the oldest neighborhoods in Las Vegas, one that, in recent years, was experiencing urban revitalization.  At the City of Las Vegas’ request, new residents were moving into that neighborhood and others like it, and older residents were sharing a renewed sense of pride in their homes.  Part of that area was just designated as the first historic district in the City of Las Vegas.  That was the type of urban revitalization that all cities were looking for. 

 

The problem of helicopter noise was preventing that revitalization from happening fully.  Residents in Mr. Contine’s neighborhood and others like it were having their quality of life destroyed by tourist helicopter routes, some of which flew directly over their homes.  Residents sometimes experienced over 40 helicopter flights an hour over their homes.  The traffic was worse over the weekends, the very days when residents were more likely to spend time at home with their families.  The helicopters were so loud that they caused dogs to bark and made it difficult to carry on normal conversations in backyards.  Additionally, as Assemblywoman Giunchigliani stated, his neighbors and he were attending a jazz concert sponsored by Clark County.  It was something that was attended as a community and was looked forward to each year.  At that particular concert, it was nearly impossible to enjoy the music as approximately 67 helicopters flew over in less than two hours. 

 

The problem of helicopter noise was so bad that Clark County Commissioner Myrna Williams held a series of town hall meetings specifically on that issue.  At a recent town hall meeting, Commissioner Rory Reid stated that he had received more calls on helicopter noise than on any other issue during his time as a Commissioner.  That was a devastating problem that disproportionately affected older urban areas. 

 

Those areas were dealing disproportionately with other issues as well including crime, park space, and the homeless issues.  It was patently unfair for them to also have the burden of helicopter noise placed on their shoulders.  Last year, the County Commission appointed the Advisory Committee on Helicopter Noise, which waded through the considerable legal and jurisdictional issues related to helicopters.  Many of the regulations that affected helicopter operations were out of the citizens’ control including, to some degree, assigned flight paths and specific altitudes at which helicopters must fly. 

 

However, A.B. 355 was clearly within the discretion of the Committee on Government Affairs.  It was within the Committee’s discretion to create an environment where companies were encouraged to move to nonurban locations and to insure that the problem was not exacerbated by adding new urban heliports.  It would not be adding any new regulations to current helicopter operations.  Under A.B. 355, if operators chose to continue their current operations exactly as they were doing presently, they were still free to do so.  A.B. 355 simply laid the groundwork for operators to move to more suitable locations.  Mr. Contine asked the Committee members to give residents of neighborhoods like his the ability to simply enjoy the quiet of a Sunday morning in their backyards with their families.  Mr. Contine believed, he stated, that they deserved that.  He asked for “yea” votes on A.B. 355.

 

Mr. Contine continued his testimony by directing his next remarks to Assemblyman Christensen.  There was a great deal of testimony taken by the Advisory Committee.  One of the findings was that veering off the assigned flight paths would only be addressed by moving those operations away from urban areas.  If they were to continue to fly over urban residential areas, there was essentially no way to keep the flights on their assigned flight paths. 

 

Assemblyman Hardy was looking at the amendment proposed by Assemblywoman Giunchigliani and read the words in Section 5, part 1, “shall not, during the period coming on July 1, 2003, and ending on June 30, 2005:” and continued on paragraph (b) “Approve or issue any land use permit, the effect of which approval or issuance would be to authorize the construction or operation of a heliport that was not in existence on July 1, 2003.”  Mr. Hardy believed there was not a place in a nonurban, nonresidential place apparently at the present time.  He asked if the amendment would prevent a new nonurban, nonresidential heliport from being built or even approved or a permit issued until 2005.  That would increase the time needed to accomplish noise reduction and would seem to defeat the purpose of the bill.  Ms. Giunchigliani had sent an original copy of the amendment to Las Vegas and stated that Randy Walker, Director of Aviation in Clark County and the Director of the Airport Authority, had suggested changing “preferred airport” to “nonurban preferred airport.”

 

Ben Contine asked Mr. Hardy if his concern was that the language would prevent a helicopter company from getting a nonurban use permit.  The current language of the amendment used the term ”urban heliport” in it.

 

Mr. Hardy stated he needed help with interpreting Section 5, subsection (b), correctly.  He read it to mean that a new heliport, not currently in existence, was prevented from being constructed until 2005 unless it was permitted before July 1, 2003.  He asked if he was reading that portion of the amendment correctly.

 

Assemblywoman Giunchigliani stated that Mr. Hardy’s understanding was indeed the intent of the moratorium.  That would say that, as of July 1, 2003, if a company was not in existence, then it could not apply for a special use permit to locate in that urban area.  She believed that his former concerns about the influx of new companies coming to Las Vegas to take advantage of the tax exemption were addressed by the moratorium.  Las Vegas would have the opportunity to find and declare a nonurban site for the new location of the helicopter industry.  The only other thing that could be considered would be the setting of a time line after which the exemptions were removed and no longer available.  Ms. Giunchigliani had not really examined the need for it yet.

 

When asked by Assemblyman Hardy if a site was being sought at the current time, she responded that Randy Walker was working on finding a suitable site by the deadline of January 1, 2004.  Separate from the amendment, she asked that Committee members examine the bill itself.  On page 2, Section 3, the Board of County Commissions of each county over 400,000 “shall designate a preferred airport or preferred nonurban airport for the takeoff and landing for commercial helicopters.  Preferred airport must not be the largest airport.”  She also referred Committee members to look at Section 6 of the Act, the Board of Commissions had until January 1, 2004, to establish that nonurban airport designation. 

 

Then, there was the moratorium, which was simply for the issuance of a special use permit or zoning permit for creating a new helipad within an urban area.  The two issues, finding a new heliport site and establishing a moratorium, would not conflict; they should be exclusive.  Section 3 directed that the County Commission and the Airport Authority, under the direction of Randy Walker, would establish a new location for the purpose of the tax exemption by January 1, 2004. 

 

Mr. Hardy asked about finding a way to clean up the language so that there was no appearance of a conflict between Section 5 and Section 6.  Ms. Giunchigliani stated that she thought so and would be happy to work with drafters to make that clearer.

 

Chairman Manendo stated that the intent of the legislation was clear, and, if language changes were needed, the Committee would definitely favor so doing.

 

Mr. Hardy stated that the concept was good, and it was apparently a problem of semantics.  Assemblywoman Giunchigliani stated her appreciation for his input, as it was not her intention to allow for misinterpretation of her bill.  As Dr. Parker mentioned, that was a problem in the last legislative session.  She asserted that A.B. 355 was to be as clean a bill as possible and easily understood.

 

Assemblywoman Pierce confirmed with Ms. Giunchigliani that the current task force existed but questioned its purpose and focus.  Ms. Giunchigliani affirmed that the task force members were charged by the County Commissioners with the task of adopting the intent of A.B. 490 of the Seventy-First Legislative Session, to work with the FAA, to work with the operators, and with neighborhood representatives to find ways to abate the noise and safety concerns.  The task force was looking at the routes and how they were established.  They were looking at times for flying, and they had people tracking the actual flyovers so that the task force could justify the contention that the routes were not being followed.  The full Committee adopted seven of the fourteen proposed recommendations.  The moratorium was one of those recommendations that were adopted.  The task force would also give guidance to the County Commission when it issued its first report on what direction the County could go, and things that needed to be brought to the attention of the congressmen.

 

Ms. Pierce asked if there were some members of the task force who were looking into the corridors for helicopter flight and whether there would be an outcome such as a 20-year plan for the concerns that led up to that piece of legislation.  She was also concerned about current urban neighborhoods and those that were anticipated in the future.  Additionally, stated Ms. Pierce, it was a concern to her that recreational areas such as hiking areas and Lake Mead were not in the path of the helicopter flights.

 

Ms. Giunchigliani stated that, while the task force could look at the flight paths and make recommendations to the County, the County would, in turn, make those recommendations to the FAA and, possibly, if the FAA accepted them, the routes could be changed.  That would not fix the current problem because of current placement of the helipads.  To accommodate Ms. Pierce’s concerns, the Director of Aviation and of the Airport Authority in Clark County, Randy Walker, was charged with finding a way to comply with recommendations for pathways that would not require that the helicopters fly over urban corridors.

 

Assemblyman Goicoechea asked what would stop every commercial helicopter operator in the state of Nevada from basing in Clark County to garner the tax exemption.  Technically, you only had to be in Clark County on July 1, 2003, when you filed your personal property tax declaration.  If you were based in Clark County, everybody would want to be there with his or her valuable machines.

 

Again, stated Assemblywoman Giunchigliani, there was a need for language that specified “those who were currently licensed in Clark County for the purposes of doing business and who already held a heliport permit.”  That might be language that would close that potential gap there.  She was open to that, if the Committee so wished.  Mr. Goicoechea suggested that, as long as the bill was to be amended, attention needed be given to exempt law enforcement, fire departments, and medical air ambulance services from the bill.

 

Robert Hanson, a Las Vegas resident, provided testimony regarding his personal experiences in his own neighborhood.  Mr. Hanson lived on Tropicana and Pecos and could hear the approaching helicopters before they crossed Eastern Boulevard.  By the time they reached his house, there were, in the air and visible, six helicopters flying east and west.  Those flights continued all day long starting at 7 a.m. every day of the week.  He lived in a subdivision of 240 residents, and every resident had complained to the Board of Directors about the helicopters and their noise.  There were millions of acres of desert surrounding Las Vegas.  He wondered why the helicopters had to be based in downtown Las Vegas, flying over residential areas.  They needed to be moved.  A.B. 355 seemed, to Mr. Hanson, to be a good way to begin to encourage those companies to get out of the residential neighborhoods and into the desert areas.

 

Teresa Morrow, Las Vegas resident, was testifying in support of A.B. 355.  She stated she lived about a mile off the flight path off of Las Vegas Boulevard and Charleston.  She had witnessed, daily, the veering of the helicopters from the flight paths.  The volume of noise was terrible, and she had once witnessed a near miss of a collision of a helicopter and a commercial airliner.  The airliners were flying rather low as they approached the McCarran Airport and the helicopters flying in a cross pattern came very close to them.  She was a supporter of A.B. 355, she repeated.

 

Chris Saylors, Las Vegas resident, lived off of Tropicana Avenue, the eastbound route from McCarran Airport to the Grand Canyon.  There was no such thing as sleeping in on a Saturday morning, because, in her experience, the helicopters began their operations any time between 6:50 a.m. and 7:00 a.m.  Even with established routes, which the FAA had determined to be along Tropicana, Tropicana was in the center of many neighborhoods.  Schools, parks, and thousands of residents and their quality of life were negatively affected.  The most central element of the human experience was peace of mind. 

 

Ms. Saylors pleaded with the Committee to restore the citizens’ peace of mind by passing A.B. 355.  When the helicopters flew over her house, they flew at an altitude of 800 feet.  The FAA could not raise the altitude any higher than that because they would then interfere with flight paths for the airliners flying into and out of McCarran Airport, which was another reason why the helicopter industry did not belong at McCarran.  Even with all of her windows closed, she reported, and her doors closed, the helicopters caused the walls of her house to rattle.  If the TV was on, the noise from the helicopters was the prominent noise.  She asked Committee members to imagine reading a book or trying to watch TV. 

 

That was over and above the fact that Ms. Saylors’ backyard had been rendered useless.  Her pool was useless.  When swimming, she reported feeling like she was on display.  She pleaded with the Committee to help encourage helicopters to move out of neighborhoods and help her to preserve her own neighborhood.  She had lived in her house since 1991 and was there before the helicopters arrived.  She was not planning on moving.  She was standing her ground and trying to preserve her neighborhood, as were her neighbors.  Thousands of families beyond the downtown area previously discussed were impacted if they lived in the flight corridors.

 

Chairman Manendo stated that her neighborhood was very close to the district that he represented in the Legislature.  He also reminded those wishing to testify to sign in and indicate the bill number and the position from which they were choosing to speak.  It was critical to have that information, he stated, for the records of this legislative session.

 

Pam Kasalski, Las Vegas resident, lived in a neighborhood about a mile from the Strip.  She wished to go on record as supporting A.B. 355.

 

Dr. Skip Parker made a brief comment of historical interest to the Committee.  One assumption that many people had was that the FAA made the routes, and, therefore, nothing could be done about them.  What most people did not know was that, until 1994 or 1995, the helicopter routes leaving McCarran Airport departed south of McCarran and then west over what was now Henderson.  In 1994 or 1995, someone from the Clark County Department of Aviation requested that the FAA move the routes.  They were rerouted in a very poorly conceived, illogical way with a ten-mile low-level route heading out of McCarran heading east over Tropicana and returning over a very long, low-level route over Charleston to the west and down Interstate 15.  The routes were changeable; the FAA was primarily interested in safety.  If Clark County Department of Aviation were to say that they would like the routes changed to somewhere else, the FAA would examine the safety of the move and would, in all probability, give their approval.  Stating that routes were immovable was not correct. 

 

The current routing should never have happened, but it was the reality at the current time.  There were two primary solutions; one was to move the base for the helicopters out to a rural or nonurban location as routes to the Grand Canyon or over Lake Mead would be over rural areas, and the second was to buy quiet helicopter technology, which was currently available.  It was up to the helicopter companies to make the decision to purchase that technology.

 

Assemblywoman Pierce said that she would like to see a sunset clause in the bill for the tax exemption, as well as a time frame within which the companies needed to buy the newer technology.

 

Dan Musgrove, Director, Office of Clark County Manager, spoke to the proposed amendment he had brought forward in Exhibit F.  He wanted it understood that many of those present might not be around in 5, 10, or 15 years.  As many had seen Las Vegas and Clark County grow, the fact was that a preferred airport was to remain a “preferred nonurban airport.”  Mr. Musgrove referred to Jean, Nevada, as being an extremely rural, small community.  But consider, he said, what would happen to Jean when Ivanpah was built up.  There would certainly be residences that would follow.  At such a time, that area would cease to be rural or nonurban. 

 

Assemblyman Collins spoke of living close to the North Las Vegas Airport.  Since Clark County operated that airport, there were 150 to 450 planes each day that were tourist-based.  People were bussed from the Strip and other areas of downtown Las Vegas and put on a plane.  Too many crashes had occurred in and around that airport.  That affected people in his district, Assemblyman Williams’ district, and Assemblyman Arberry’s district.  If it were proposed that the helicopter industry bus tourists to another location to get on a helicopter, he saw no reason for those businesses to get any tax break.  As their leases or rents expired on the sites in use downtown, he would prefer that the businesses be moved by ordinance.  He was concerned that another source of revenue for the county and the state was being lost when there was not enough to begin with.  Maybe the source of the problem, Mr. Collins conjectured, was the party that issued the permits to begin with. 

 

Assemblywoman Giunchigliani replied that the county or the local government of that area in which a helipad was located issued the permits.  There was one individual granted a special use permit, in ad infinitum, which she found very curious.  That person was located right on the Strip and was right in the center of the “core.”  She was unclear as to why the use permit was granted in the manner that it was.  She had requested further research for a clearer understanding of that situation. 

 

Bussing was a possibility, she continued, which would be a concept that the task force was looking at.  Those in support wanted to be fair, because they wished to avoid the perception of putting people out of business.  If those businesses wanted to take the opportunity presented in A.B. 355, there should be some direct benefit for doing so.  She did, however, agree with Assemblywoman Pierce about placing time limits on the tax exemption offer.  Either the businesses participated in the offer made through A.B. 355, or it went away after a set period of time.  As the industry purchased new machines and parts, there needed to be some way to encourage that the companies invest in the “quiet” technology.

 

Chairman Manendo closed the hearing on A.B. 355, welcomed Assemblyman Arberry, and opened the hearing on A.B. 392.

 

Assembly Bill 392:  Increases amount of longevity payments to state employees. (BDR 23-964)

 

Assemblyman Morse Arberry Jr., Assembly District No. 7, introduced A.B. 392 as the primary sponsor of the bill.  He presented his prepared testimony to the Committee (Exhibit G). 

 

Assembly Bill 392 would increase the longevity payments meant to encourage the retention of employees in state services.  Currently, they were eligible to receive a longevity payment totaling $150 after serving eight years in state government.  The longevity payment increased by $50 each year that the employee remained employed in state services.  After 25 years, a state employee would receive $1000 annually in longevity pay.

 

Assemblyman Arberry’s staff had researched and compared the longevity pay plans currently in place for the state and local governmental agencies around the state.  Elko city and county employees were eligible to receive $900 of longevity pay after just nine years of service.  After 25 years of service, employees were entitled to a total of $1400 annually.  The City of Carson City provided a longevity payment of $200 after seven years, and employees received $650 after 25 years.  Additional research and comparison data on Washoe and Clark Counties was available on page 6 of Exhibit G.

 

Assembly Bill 392 would increase the longevity payment from $50 for each additional year of service to $100 for state employees with at least 17 years of service.  Beginning in the 24^th service year, the annual longevity payment would become $150 compared with the current $50 a year increase.  The bill would increase the longevity payment for state employees with 25 years of service from $1000 to $1450.  The projected cost of A.B. 392 was a total of $351,000 in FY2003 to FY2004 and $776,000 in FY2004 to FY2005.  Approximately half of the cost would be the responsibility of the state’s General Fund.

 

The Governor’s budget for the upcoming biennium did not recommend a cost-of-living salary increase for state employees.  If the salary increase was not provided for the state employees during the coming biennium, an increase in longevity pay to assist in the retention of the most experienced state employees would be important for the legislators to consider.

 

On a side note, there were comments in the general public that were against the state employees:  “If they are not happy with their jobs, they should leave and go to work for the city or county or somewhere else.”  In most instances, those who had stayed at a location or at their job for 5, 10, 15, or 20 years, would be indicating that there was a level of dedication, an enjoyment in their work, and comfort in their place of employment.  They wanted to stay but deserved to be compensated adequately.  Even if a cost-of-living raise was not provided, the increase in longevity pay, as spelled out in A.B. 392, could be an incentive for them to stay in state service.

 

Assemblyman Williams stated that state employees had said in various hearings that they had a problem, not just retaining employees, but also recruiting potential employees.  The frustration of new employees seemed to center around the low pay scale.  As an aside, Mr. Williams wished to again remind those in the hearing and those listening from elsewhere that state employees were the only large group of employees in the state without the benefit of collective bargaining, which A.B. 392 had nothing to do with.  His question to Mr. Arberry was about the incentives, if any, in the bill for new employees.

 

Mr. Arberry believed that A.B. 392 would be an incentive as new employees looked ahead several years.  Through his testimony, he was giving information as to the other entities that had far better longevity pay in place than the state currently had.  State employees deserved a higher longevity pay.  New employees might not even be aware of longevity pay until the pay for same provided by other governmental agencies was brought to their attention.  At least a raise in longevity pay would indicate to new employees that the state was interested in retaining them in state service for many years.  A.B. 392 was a step in the right direction, he said.

 

Mr. Williams then wished to know if there was money available to fund the bill.  Mr. Arberry stated that when the Legislature voted for the new tax increase, there would indeed be money for this bill.  According to Mr. Williams, A.B. 392 would be passed before the Legislature tackled the tax bill.  Mr. Arberry stated that he would like to see A.B. 392 passed out of the Committee on Government Affairs so that it would be sent to the Assembly Committee on Ways and Means, the Committee chaired by Mr. Arberry.  At such a time, the Committee on Ways and Means would sit on the bill until the legislators knew where they were going regarding the new tax increase.  Should there be enough votes to pass the tax increase, legislators would be comfortable with having done the right thing for state government employees, affirmed Mr. Williams.

 

Mr. Williams stated that A.B. 392 was a great bill.  Publicly, he wished to say that state employees were treated differently than other public employees in the state, negatively different, he believed.  They seemed to be the step-employees of all public employees.  They were the only ones who have to give up their organs and bone marrow and everything along with not having collective bargaining.  The bill would be a step in the right direction, to grant our state employees respect and other things that they deserved.  He thought, he stated, that it was a good piece of legislation.

 

Assemblyman McCleary would hope that Ways and Means would give priority to our state employees when considering “the resources that we have because we really need those employees.”  The Legislative Counsel Bureau had been particularly helpful.  He wondered if Mr. Arberry found, in his experience, that state employees were leaving state service to move to local governments frequently, because the pay was not comparable from job to job.

 

Mr. Arberry stated that he would agree with that.  He looked at some of the statistics that were available for prison guards, for example.  Those guards were trained in the same program that the metro officers went through.  Those who were employed by the county law enforcement agencies or by the metro police were earning considerably more that those who took employment as guards.  They were dealing with the same constituency and deserved comparable wages.  Every other entity seemed similar.  He used welfare workers as another example.  The people working in welfare for the state had the same college education, the same training, and they had to pass the same exams as those working for the county welfare agency.  The county worker was making more money that those working at the state level.

 

Mr. McCleary followed up by commenting that several years of training were available to state workers who, once established and highly skillful, moved into the local government agencies taking their expertise with them.  He asked for confirmation that, in the long run, the cost to the state was considerably greater than would be the case if like compensation was offered to retain the employees.

 

Assemblyman Arberry stated that Mr. McCleary was exactly right.  That was the problem faced.  A.B. 392 was an attempt to send the message that state employees were valued and that their experience and education was important to the state.

 

Assemblywoman Koivisto, a long-time state employee, stated that she appreciated Mr. Arberry’s efforts, as well as his bill.  When she received her first longevity check, she was not sure if it was a check or a bill. 

 

Assemblyman Grady asked if Mr. Arberry’s arguments were the same arguments heard from the professional staff regarding Assembly Bill 66 for county professional employees.  Mr. Arberry was not knowledgeable, he stated, about A.B. 66.  He stated that he could not answer Mr. Grady’s question.

 

Assemblyman Hardy declared that A.B. 392 was an excellent way to reward and appropriately give something to those state employees who continued to work for years in state service.  He understood that the longevity pay would be reflected in the Public Employees Retirement System (PERS) as well.  That would be adjusted as well.  Although Mr. Arberry believed, he said, that Assemblyman Hardy’s assumption was accurate, he would be more comfortable if PERS were to respond.

 

Scott MacKenzie, Executive Director, State of Nevada Employees Association (SNEA), Local 4041, thought he would briefly give the Committee a little history about the subject so that all understood the past.

 

Longevity was established by the Legislature on July 1, 1973, as a plan to encourage continuance of service.  The plan was originally for employees with ten or more years of continuous state service.  Those payments began at $175 semi-annually and increased $25 per year to a maximum of $250 for 15 years of service.  In 1975, longevity pay was changed to allow payments to begin at 8 years of service and to continue in increasing increments until the employee had 17 years of service.  The first payment was for $75 with subsequent semi-annual payments increasing by $25 annually until the employee received $300 at which point his payment amount was frozen.  Longevity eligibility dates were June 20 and December 30. 

 

In 1977, the longevity rule was amended to state that, should an employee quit but returned to work, his annual service credit would run out, but his continuous service, for longevity purposes, would not be affected.  In 1979, a maximum semi-annual payment amount was increased from $300 to $375.  Obviously, SNEA stood in support of the bill.

 

Mr. MacKenzie went on to say that he was, at first, concerned about moving from eight years of service to nine years of service.  However, SNEA realized that employees received merit pay through eight years.  He guessed there could be an argument that employees who received both merit and longevity pay were receiving dual pay.  One of the things that he had always noted in his own employment history was that people did not state employment plans in other than five-year increments.  Most often employees would state their intentions to stay for five more years or to retire in about ten years.  If he were to suggest any changes, they would be to base the key years of service in increments of five years.  Examples would be to change the incremental year of service of 17 years in Part A and Part B to 15 years, and to change, in parts B and C, where it says the incremental year 24, change that to 25.  Those changes would help balance out the fiscal note.  It simply made more sense to him, Mr. MacKenzie stated, to make those changes, as employees spoke of and seemed to think of their employment plans in increments of five years at a time.

 

Longevity pay was also a reward for people having a career in state service and understanding how to perform their duties.  There was considerable experience in state service that went unrewarded at the current time.

 

Chairman Manendo, hearing no further comments on the bill, closed the hearing on A.B. 392.

 

Assemblyman Williams reminded the other Committee members that he thought that A. B. 392 was a good bill.  He reiterated that the state workers who did a great job for the citizens of Nevada deserved the increases in longevity pay.  It was a timely bill.

 

ASSEMBLYMAN WILLIAMS MOVED TO AMEND AND DO PASS ASSEMBLY BILL 392.

 

ASSEMBLYMAN ATKINSON SECONDED THE MOTION.

 

Assemblyman Knecht reminded the Chair that he had previously disclosed that he was an employee of the state, and the bill would eventually affect him as it would others.  For that reason, to be prudent, he would abstain from the vote in Committee.

 

Assemblywoman Koivisto, as a state employee, stated that the bill would not affect her any more than any other state employee so she would vote for it.

 

Chairman Manendo had the same disclosure as a state employee and would be voting.  The bill had an automatic rerefer to the Assembly Committee on Ways and Means.  Hearing no further comments, the Chair placed the question.

 

THE MOTION PASSED WITH MR. KNECHT ABSTAINING.

 

Chairman Manendo opened the hearing on Assembly Bill 464 noting, also, that Mr. Arberry would introduce that bill, as it was sponsored by the Committee on Ways and Means.

 

Assembly Bill 464:  Establishes Commission to Review the Compensation of Legislators. (BDR 23-1319)

 

Assemblyman Morse Arberry Jr., Chair of the Assembly Committee on Ways and Means, representing District No. 7, had a prepared statement to present to the Committee (Exhibit H) that was very brief.

 

Assembly Bill 464 was being presented because 18 years had passed since the Legislature had adjusted the salary paid to its members.  Since that legislative session in 1985, the purchasing power of the dollar had declined by 42 percent.  That meant that the 1985 dollar was now worth 58 cents.  After 18 years, it was time to reconsider the salary of legislative members if “we” wished to preserve our citizen Legislature.  He did not need to remind the legislators themselves that each elected legislator received $130 per day for only the first 60 days of each regular session.  That translated into $7800 dollars paid to legislators over the two-year period of service, thus making the legislators of Nevada some of the lowest paid in America.

 

In a citizens’ Legislature, such as ours, he commented, it was vital that members’ salaries were adequate and attracted potential members from all segments of our population.  Assembly Bill 464 would establish a 5-member commission to review the compensation of legislators.  The commission would be required to hold hearings, receive public comments, and then determine the proper level of compensation for legislators.  That determination was to be submitted to the State Budget Director on or before October 31 of each even-numbered year. 

 

Further, the bill required that the Budget Director include salaries recommended by the Legislative Compensation Commission in the biennial budget presented to the Governor.  In determining an appropriate level of compensation for legislators, the bill required the Commission:

 

• To consider the current salary of people with similar qualifications who were employed by the state and in the public sector.

 

• To examine the minimum salary requirement to attract and retain experienced and competent people.

 

• To consider the average number of days legislators served during each term.

 

• To examine the amount of work required when the Legislature was not in regular session.

 

• To explore the opportunities legislators had to earn additional income from outside sources. 

 

Mr. Arberry was also placing responsibility on the Commission to reference the factors pertaining to the relative purchasing power of money such as the current rate of inflation, the average cost of living in the state, and the change in the consumer price index and to include them in that determination as well.  It should be noted that any increase or decrease in legislative compensation that would be approved by the Legislature would not be effective until after the reelection of the current senators and assemblymen and assemblywomen.  Therefore, if A.B. 464 were approved in 2003, the 2005 budget would be the first to reflect the new legislative salaries, which would not become effective until after the 2006 election.

 

Finally, Assembly Bill 464 appropriated $6900 to cover the salary, travel, and per diem expenses of the members of the Compensation Commission for the upcoming biennium.  As a side note, Mr. Arberry stated that A.B. 464 was personally very important to him as a legislator.  He had been preaching the message over the past few sessions and also attempting to get the Legislature to pass a bill to pay legislators what they honestly deserved.  If the plan was to retain good legislators, and he had heard many say that they could not provide for their families and loved ones, and to hear them state that they could not afford to pursue another term to participate in the system, was very sad and of great loss to the state. 

 

Hopefully, the Legislature would pass the bill as it was definitely needed.  Assemblyman Arberry added, “We would not be passing a ‘salary’ bill; we were just passing legislation to provide for a Commission so that, as legislators, we would be able to do what needed to be done.”  If the legislators in 1975 had not voted for what the legislators received as compensation until 1985, the pay for legislators would be much, much lower.  And if the legislators who took the initiative in 1985 to increase wages had not done so, current legislators would not receive their current wage.  To compare today’s dollar with the value of the dollar in 1975, legislators would be working for less that a half-cent on the dollar. 

 

Assemblyman Williams again asked the value of today’s legislative dollar.  Assemblyman Arberry restated its value as worth 58 cents of the dollar’s value in 1985.  Mr. Williams stated that one could buy three shares of Edison stock for that amount of money.

 

Assemblywoman Koivisto stated that A.B. 464 was apparently written before reapportionment, because, on page 3, the bill called for two members, one from each congressional district.  Currently, there were three congressional districts so those numbers would need to be adjusted.  Assemblyman Arberry thanked Mrs. Koivisto for her observation and stated that it was an oversight by the bill drafters.

 

Assemblyman McCleary believed, he stated, that A.B. 464 was very similar to a bill currently being heard in the Committee on Constitutional Amendments.  He asked if there were differences between the two bills.  As Mr. Arberry did not know the answer, Mr. McCleary then asked if the decision of the commission would be binding or would the legislators themselves be asked to vote on the commission’s recommendations.

 

Assemblyman Arberry stated that the commission would make the decision.  The legislative body would not be voting on their own raises.  That was the intent of A.B. 464, to remove the need for legislative approval from the legislators.

 

Mr. McCleary stated that, despite having great respect for Mr. Arberry, he had considerable difficulty with A.B. 464.  Personally, he continued, he was on the verge of economic ruin because of his decision to become a state assemblyman.  While he agreed that legislators needed a raise and would amend the bill himself and champion that for Mr. Arberry, he was strongly opposed to giving the legislators’ constitutional duty to a commission.  The reason, he believed, that legislators had not had a raise in so long was due to their fear of the flack they would get from their constituents should they vote for their own raises.  If the state continued to want citizens to serve in the Legislature, they must be compensated.  He agreed wholeheartedly with those willing to accept the responsibility for voting positively in that regard.  He could not, however, support a commission that did not answer to the people.

 

Mr. Arberry believed that the commission would answer to the people.  That was the reason why the bill stipulated that the commission had to have hearings and take testimony.  Whatever the people brought to them must be heard. 

 

Mr. McCleary did not agree.  He declared that the commission did not report to the people; the legislators reported to them every two years.  If the people did not like the decisions and actions of their elected legislator, they replaced them.  That was his point.  The bill would call for the appointment of representatives; the commission would not be made up of elected officials who could be replaced by the citizens. 

 

Mr. Arberry would love to bring his salary bill forward, a salary bill presented by the Taxpayers’ Association.  All of the parties involved worked on the bill to make it a nonpartisan bill.  That bill was brought before the Legislature during the last session in 2001 (Exhibit I).  It was very difficult to move legislation like that through that body.  He looked at the situation in a very unique way.  Those chairs that legislators sat in were like seats purchased at a basketball game.  Legislators leased that chair when they paid their filing fees for the privilege of running for office.  “We were not going to own those chairs for the rest of our lives.” 

 

The legislators had the responsibility to look out for the people who would come after them, not just for today but for tomorrow, too.  The legislative body needed to be less fearful, despite the economy’s downward trend, to stop planning for reelection, and vote for a salary that would more fairly compensate future legislators.  If anyone campaigned after voting for the increase and got elected, they deserved the increased salary.  If they did not get elected because they voted for the salary increase, so be it. 

 

People had said to him, “Mr. Arberry, you have been here for 20 years, and you have passed some bad pieces of legislation and some good legislation.  Your constituency still supports you.”  The reason his constituents continued to support him, from his point of view, was because he did not sit in his chair every day and think about how he was not going to get reelected if he voted for a raise.  The increase in salary was something that had been needed for many years, and the legislators needed to understand the concept of “leasing that chair”; no one owned it.

 

Chairman Manendo drew attention to page 2 of the bill.  On that page, the language spoke of the public meetings, which would be reviewed, the public would have the opportunity to speak, and the commission would comply with the Open Meeting law with proper postings.

 

Assemblyman Williams stated his belief that, as legislators, each would have an opportunity to vote on that issue.  On page 4, line 5, Section (c), the language of the bill talked about the commission, which said after holding the public meetings:

 

If the Commission determined that changes in legislation were required, the Commission would request the assistance of the Legislative Counsel Bureau for the preparation of a bill draft on or before November 15 of each even-numbered year.  Upon completion of the bill draft, the Legislative Counsel shall deliver the bill draft to the appropriate standing committee of the Assembly or Senate within the first week of the next regular legislative session for introduction.

 

Those Committee members concerned with the commission making the decision needed to read the bill and to note that the commission did not make the decision; it was charged with the responsibility of determining the need or lack thereof, for changing legislation through bill drafting, Committee introduction, and the regular process that continued from there.

 

Chairman Manendo referenced page 2, Section 6, line 25, and stated, “The commission shall review, hold public hearings, and receive public comment.”

 

Mr. McCleary restated his concern and asked for clarification as to his understanding of the language of the bill.  Before the legislators received any pay increases, the commission proposed them and then the legislators themselves voted “yea” or “nay” on a specifically designed bill.  He could support that but did not want the commission to independently set salaries for legislators without the legislators accepting responsibility by means of a vote on the issue.

 

Eileen O’Grady, Committee Counsel, reported that the actual provision on page 3, subsection 3, stated that “The increase or decrease of the level of compensation for the office of Senator or Assemblyman which has been determined by the Commission and approved as part of the budget . . .” So, legislators would be voting on the increase only as a part of the budget.  Whatever the increase or decrease was when voted on by the commission would remain unchangeable, she believed.

 

Chairman Manendo stated his understanding that the commission would report back, and the legislators would vote that legislation up or down.

 

Mr. McCleary asked if the legislators would be allowed to vote specifically on that increase as a line item of the budget.

 

The Chair believed, he said, that it would be part of the budget bill, and one would be able to change budgets, as it would be heard in a public hearing.  A legislator could certainly attend a hearing of the Ways and Means Committee and speak to that issue.

 

Assemblyman Williams stated that the recommendations of the Commission, when it became a bill draft, were voted on by each individual legislator who had the right to vote for or against the bill draft’s introduction as well as the bill when brought to the Floor of the Assembly or Senate.  Even though it was a recommended amount, the Commission itself was not responsible for budget passage.  The legislators were ultimately responsible and would have that opportunity to vote.  The Commission’s appointees were to hold public hearings, to take input from the public, and to set the recommended amount, but the legislators were not “off the hook.”  They still needed to vote on that recommended amount.

 

Assemblyman Hardy referenced subsection 3 on page 3.  The compensation did not change until an individual was reelected.  In essence, one had to stand for election or reelection before one would get at the increased level of compensation.  That could affect senators more than assemblymen.  To each point, Mr. Arberry stated that Mr. Hardy was correct.  In Section 9, page 4, as he read it, that would deal with only constitutional officers, Supreme Court justices, district judges, and elected county officers.  That would not apply to legislators.  That determination in Section 9 would not come to or apply to the legislators as it was currently written.

 

James R. Richardson stated that he had appeared before the Committee on Government Affairs on a number of occasions as the representative from the Nevada Faculty Alliance, but he was testifying at the current hearing on a more personal note.  He was not representing them and even removed his name badge.  He was there because of a promise he made to the late Assemblyman Marvin Sedway many years ago when Mr. Richardson chaired the Benefits Committee for the state of Nevada back in the 1980s. 

 

Mr. Sedway had made an effort several times to get legislators defined as state employees for the purposes of health insurance.  Mr. Richardson said he supported him fully every time he did that and promised Mr. Sedway that he would continue to work for that.  “So, the ghost of Marvin Sedway was visiting the Committee on that day,” he stated.  The bill, as written, would allow for that as it used the word “compensation.”  Mr. Richardson believed that the commission could study that issue because of the use of the broader term “compensation.”  Mr. Richardson was worried, however, because the list in the bill referred only to salary.

 

For the record, Mr. Richardson asked the Committee to affirm or consider that the term “compensation” would be broader than just salary and whether legislators worked hard enough to be defined as state employees for purposes of health insurance.  Some of the Committee members knew that the health insurance plan was not as good as it used to be, but it was still there.  One time, when holding a hearing on that issue, the late Reno Assemblyman Bob Kerns had testified that in one year’s time, he had appeared at 347 functions representing his constituents as an Assemblyman.  Mr. Richardson believed that was pretty well full-time.  State legislators should be considered, according to him, state employees for the purpose of health insurance.  He asked that the Committee affirm, in the record, their belief that the commission would be allowed to consider that issue as well.

 

Rick Bennett testified as a citizen of Nevada.  As a former legislator, he did understand the commitment made to run for office and to serve in the Legislature, not just the individual but their families also.  He assumed that nearly all on the Committee were taking a financial loss to provide public service to the state.  He thanked them for that.  As Mr. Arberry stated earlier, he would ask for support of the bill also, not for themselves, but for those who come after them.  As a legislative leader, he had spent a considerable amount of time attempting to recruit people to run for office.  One of the barriers for many was the level of compensation.  Potential candidates said they could not afford to even consider running for office because of the financial loss.  That was a tremendous loss for the state.  There were many good people in the state who would serve well in the Legislature, but they just could not afford to make that decision.

 

In his first legislative session, he suffered similar circumstances as Mr. McCleary was suffering currently.  Mr. Bennett stated, “It took me considerable time to recover financially from that.”  The issue was not about those who were serving currently; it was about those who would serve in the future.

 

Mr. Bennett suggested that Sections 8 and 9 would no longer apply to legislators if A.B. 464 were passed.  In Section 12, it was clearly indicated that the recommendations from the new commission, related to legislative salaries, must be included in the Executive Budget of the Governor.  As stated, hearings on the budget would be held, the budget could be changed, and, then, as a body, the budget would be voted on as a whole.  They would still be allowed the opportunity to provide input and to vote on the recommendations of the commission, he reminded the Committee.

 

Assemblyman Hardy did not see the bill as precluding the Legislature from doing something else in the way of compensation if that were to be health insurance extended to legislators.  If there was an appetite to amend the bill to include health insurance, there would be others who would support that amendment.  That was a major issue when the session began, and most were left “high and dry.”  It was a potential major problem. 

 

Assemblyman McCleary commented on Mr. Hardy’s input.  He had brought his family with him to Carson City, left an $85,000 a year position, a brand-new car every 3,000 miles, and full benefits.  At the current time, he had no benefits.  Mr. McCleary’s four-year old became very ill a short time ago, the family had very little money in the bank to draw from, and, if it were not for the kindness of his colleague on the Committee, Mr. Hardy, he did not know what he would have done.  He agreed with increasing the compensation and benefits for those who come to Carson City as citizen legislators.  He worried, however, that A.B. 464 allowed current legislators to shirk their responsibility.  He would amend the bill immediately in whatever way was necessary to clarify for the constituents what was needed and to place the responsibility back on the shoulders of the legislators.  If he was not a legislator for the next session, so be it.  It was important to take care of those who would be.

 

Assemblywoman Weber stated, on a personal note, that, had it not been for one of those “professional physician” members of the Committee, Mr. Hardy, she would not be as functional as she was at the current time.  Her colleague was truly a healer for many of the members of the Committee and in the Legislature.  It was not often that she spoke personally in the Committee, she continued, as she thought she was trying to do the work of the people.  She did, however, applaud the efforts of the intent of the bill.  In 1985, when they were faced with that decision, the folks then, looking to the future, were not looking at health care as it was currently.  She knew, personally, that she faced the same situation as did Mr. McCleary.  She did have health insurance coverage, but it was very expensive.  She loved to serve, as did all members of the body, and she, as well as they, would appreciate help by whatever means possible. 

 

James Richardson stated that he did have a specific suggestion and appreciated that two Committee members had spoken up on the very important issue of health insurance costs.  He recommended an amendment that would begin on line 32 on page 2.  Consider adding, he suggested, a subsection (e) or reordering it to say “Consider defining state legislators as state employees for purposes of health insurance.”  The implication was that whatever the state was subsidizing for employees’ health insurance would extend to the legislators who had none.  He saw it as a miniscule amount as there were just 63 legislators, and many already had their own insurance paid through other sources.  He again urged that the legislators make an explicit statement somewhere in the bill that they wanted that issue considered by the commission, and that the suggested wording be placed in the bill as well, regarding legislators as state employees.

 

Assemblyman Goicoechea stated that, although he did support the bill, he would have to vote “nay” on it if Assembly Bill 66 did not pass.  A.B. 66 was the same scenario; which was the elected officials’ pay increase, and those people had worked for a long time without a pay increase.  If the Legislature was not going to address that, he would not agree to address the legislators’ needs. 

 

Chairman Manendo explained, for the benefit of the listening audience, that the bill under discussion did not have a specific amount of money attached to it as there was no way of knowing what the commission would recommend to the legislative body nor what the public would suggest.  That was quite different from the specific percentages of pay increases, some at 50 percent and some higher, for county elected officials in Assembly Bill 66.

 

Assemblyman Goicoechea commented that the majority of counties were looking at a pay increase on the average of 27 percent over eight years.  There was a need to anticipate that it would be a long time before pay increases would be considered again.

 

Assemblywoman Pierce appreciated what Assemblyman McCleary said.  She also thought that each legislator should have a chance to vote on the suggested and recommended pay increases, but was comfortable with the idea that the bill would put pay increases into the proposed budgets and that it could be left there or taken out.  She was also in favor of the establishment of a commission, as there was education that was needed for the general public as to how much money was earned by a legislator, how much was done by each, and to gain a clearer insight into what was meant by the term “citizen legislator.”

 

Danny Thompson, President, Nevada AFL-CIO, stated that too often issues, such as were addressed in A.B. 464, were left undecided because of fear of repercussions during a campaign.  While much of what legislators did was open game in a campaign, the issue under discussion should not be dealt with in those circumstances.  He stated that an increase in benefits and salary needed to be done, it should be done, and it was ridiculous to look at the amount of money paid to legislators in Nevada, and it was ridiculous that legislators did not have health insurance. 

 

Mr. Thompson stated that he had been lobbying for health insurance coverage for workers for 23 years and saw one of the problems in the current budget was that too many people did not have health insurance.  People who did not have health insurance not only caused Medicaid budgets to increase, they also caused the cost of providing services to the people who paid to go up because that was where the money was coming from.  It was ridiculous that it had come to that, but the AFL-CIO wholly supported A.B. 464.

 

Mr. Thompson added that it was unbelievable that legislators had put their lives on hold, done at their own free will, and were not making enough money to live on.  As an organization, the AFL-CIO believed that the issue should not be politicized and reassured the Committee that his organization would not do so.  It wholeheartedly supported the bill and urged the Committee to adopt an amendment that would allow the commission to consider the issue of health insurance.

 

Assemblyman Grady commented that he paid more for health insurance than he received as a salary for serving in the Legislature.

 

Chairman Manendo stated that, in all of his years as a legislator, he had never carried health insurance, as he could not afford it.

 

Assemblyman Christensen thanked Mr. Thompson for his statement.  He agreed, although his situation was a little different than most.  He owned his own shop, and his only worker was himself.  While he was in Carson City, he continued to take care of some clients.  His insurance continued, and, if he remembered correctly, there were restrictions related to health insurance if one were to leave a job.  The health insurance coverage would not be extended for personal pay indefinitely.  He was shocked and believed that health insurance was a disincentive to come to Carson City, sacrifice one’s normal life, and serve the people. 

 

Legislators earned an average of $5 per hour, and Mr. Christensen said he believed he earned more than that when he mowed lawns in high school or even in junior high school.  He appreciated and respected Mr. Thompson and others for coming forward and stating that the issues were not political issues.  His understanding of the bill as it currently read was not much different from the Governor’s Board that would come together to make recommendations.  At the end of the day, they could amend, change, or vote for or against.  At least it helped the process.

 

Assemblyman Atkinson absolutely supported the bill.  He was one whose insurance coverage was affected, and he worked for another governmental agency.  Because he was on leave without pay, he had to pay his own insurance, which rose from what it was as an employee at $12 per month to what it was as an individual person at $460 per month.  Like Mr. Grady, much of his salary would be used to pay for his health insurance.  He strongly disagreed, however, with Mr. Goicoechea.  A.B. 464 was separate and apart from A.B. 66.  A.B. 66 required directly voting for large and specific salary increases; what was asked for in A.B. 464 was for a group to look at the salaries and insurance issues of state legislators.  The legislators who would deal with those recommendations had the opportunity to remove or change the recommended amounts at some point in the future.  A.B. 464 was much different.

 

David Schumann spoke as a representative of the Independent American Party.  His testimony was in support of Mr. McCleary’s position, he stated.  Anybody who knew him, he said, knew he was for smaller government and less taxes, but he truly believed legislators were underpaid.  A.B. 464 indicated a lack of confidence in the common sense of the Nevada taxpayers.  He stated that Nevadans had the luxury, and it was truly a luxury, of a Legislature that met once every two years. 

 

The legislators should meet and raise their pay to $20,000 a year for that one year.  He would go out and support that in groups that were probably more to the right than the current group of legislators.  He had zero trust in a commission.  Even though its recommendations would be placed in the budget, and the legislators would be able to vote on the budget, it would be “hidden away.”  Mr. Schumann stated it was a difficult proposition to draw one thing out of the budget, separate it from the whole, and change that recommendation.  Budgets would go up and down.  He did not believe that the people of Nevada would get upset if the current legislators who met for only one-fourth of a year were to multiply $6800 by 3 and they quickly came out to $23,000, plus or minus, divided by 2, because they only met once every two years so “you are only costing us $12,000 or less per year to have the state Legislature as we have it.  It was worth a heck of a lot more than that to have a state Legislature.” 

 

The current legislators should stand up and vote for their own raises.  He did not believe the people would have as dim a view of that as, apparently, they did.  “The congress took that route, and they were grossly overpaid at $144,000.  They were just not worth that much; they simply were not.  You guys are worth a heck of a lot more than $6,800,” Mr. Schumann stated. 

 

When asked by the Chair if he would be willing to participate on a commission and to give public testimony about the numbers, Mr. Schumann said he certainly would.  The Chair continued to explain that the commission would hear from the public, take those recommendations, and bring it back to the Legislature.  If they presented the Legislature with a number that the public did not like and they participated in that process, the legislators would hear that from the folks.  That would mean there would be two opportunities for the public to participate: one through the commission, and one through the Legislature.  If that happened, and the bill had to go before Ways and Means if it were to pass out of the Committee on Government Affairs, the Chair would love to have Mr. Schumann, as a member of the public, participate.

 

Mr. Schumann believed that the bill could be cleaned up in the current Committee.  The experts would come together and agree on the language, and then they would have a distinct single recommendation to make to the legislators.  The legislators would then vote on the recommendation.  But to stick it into the General Budget, to make it a line item, would make it almost impossible to pull back out to vote it up or down.  If they were to vote directly on the recommendation, he believed the legislators would get a very high mark from the public for having the courage to do that.

 

Lucille Lusk, representing Nevada Concerned Citizens, opposed the method for arriving at salary increases.  Transferring legislative duties to non-elected bodies was one of the problems created as more and more commissions came to be.  Although it was fairly easy to say that the public would have input, the fact was that the general public did not know when the commissions met.  They were really not involved at that level.  She did see, however, some aspects of the bill that she believed had constitutional conflicts and that were impractical or unworkable. 

 

Ms. Lusk stated that she wished to share her concerns with the Committee, in case they chose to pass the bill, so that they would be considered.  At the close of that testimony, if she would be allowed a few more minutes, she would like to offer some alternative ideas that she believed, over time, would accomplish the purpose better and were consistent with maintaining legislative authority.  Those ideas were not developed in relationship to A.B. 464 but were in relationship to A.J.R. 1 of the Seventeenth Special Session.  Those ideas would work in combination with the current bill and, indeed, with A.B. 66, even though those were entirely, as was stated, separate bills.  The concept would have some relation to it.

 

Speaking to A.B. 464 itself, Ms. Lusk pointed out those areas she believed were problematic.  On page 2, line 30, it specifically read that the Commission was to “determine the level of compensation,” not to recommend it, she reported.  The bill also read on lines 35 and 36 that, among the things they were supposed to do was to “compare the current salaries of persons with similar qualifications who were employed by the State of Nevada and in the public sector.” 

 

Ms. Lusk needed to make the legislators aware that the qualifications for running as a legislator were simply to “be a registered voter and to reside in your own district.  You really did not want to do a direct comparison with only those qualifications.  You needed to add to that to say those qualifications and duties or just duties.”  When the bill stated that the comparison was to be with those who were employed by the state and in the public sector, as on lines 36 and 37, it would be wiser, she stated, to have that compared with the private sector and the public sector, but not the public sector alone. 

 

Ms. Lusk continued that on page 3, line 8, the language stated that the recommendation of the commission was to be approved as part of the budget, and stated that it was “not effective until the completion of the current term of office of Senator or Assemblyman.”  That specific provision, from her point of view, was a constitutional provision so was not optional unless the bill’s sponsors chose to go with a constitutional amendment. 

 

The aspect of being approved as part of the budget was an area of real concern, Ms. Lusk added.  The Constitution of the State of Nevada specifically stated that the compensation of the legislators “shall be fixed by law.”  It could be considered that the approval of the budget constituted being “fixed by law,” but, clearly, it was not the intention of the people.  When the people say “fixed by law,” they meant that the legislators would have a piece of legislation in front of them that they would approve by passage or not.  While it might meet the technical letter of the Nevada Constitution, it did not meet the spirit. 

 

Moving on to page 4, Section 10 completely removed all reference to the compensation within the constitutional limit of 60 days.  Whatever was recommended and approved still had to be based solely on 60 days unless a constitutional amendment was sought.  It did not matter that the 60 days were left unmentioned; the Commission recommendation would have to be divided by the 60 days.  That would result in a daily salary that looked untenable.  That was the reason, she continued, that she would offer some alternatives. 

 

Ms. Lusk wanted the Committee to know that she was in agreement with some of the Committee members’ comments and with Mr. Schumann.  There should, in fact, be something done about the current compensation levels for legislators.  She was very interested by the mention of health insurance.  She did not recall hearing that in the past.  While she did not agree that the Legislature should define itself as state employees for any purpose whatsoever, she did agree that the Legislature should provide for health insurance for its members during the time each served in the legislative session.

 

Chairman Manendo interjected that time was running out as the Committee had another bill to deal with also.  Ms. Lusk asked for three more minutes but was offered only one by the Chair with apologies for the short time left for her testimony.

 

Ms. Lusk simply stated that a minute was not long enough to offer alternative ideas.  She wanted the Committee members to know that they did exist.  She did, however, change her mind and decided to try to get as much said as possible.

 

What she would like to suggest was, either by law or through a constitutional amendment, that there be a requirement that the Legislature would, in fact, fix the salaries of the legislators and other elected officials during each session.  That would get it on a track so that the issue was regularly dealt with and would result in keeping the amounts down so that raises would be considered “reasonable.”  It would be specified that the Legislative Counsel Bureau (LCB) did the research to compare salaries with the public and private sector.  The Legislative Counsel Bureau would provide that information to the Legislature.  There would be no fiscal note, research was what the LCB did, and the comparison would be between duties rather than qualifications. 

 

It would specify that the salary set by the Legislature would not exceed that composite of the public and private sector.  That would create a reasonable limit but not $130 or $160 per day that would be considered regularly.  Health insurance was already mentioned and would become part of the compensation package.  Combined with that, a constitutional amendment was needed to specify that legislators were to be paid for each day of service.  That would be automatically limited to the 120 days so that people would understand that it met the parameters of “basic fairness.”

 

Legislators would look, at the same time, at the constitutional limit set on postage and stationery expenses at $60 per session.  Ms. Lusk was not sure how it was currently handled, but it was obvious that it could not be done for that price per session.  She would frankly suggest that the requirement of the Legislature to act on the compensation package during every session be part of the constitutional amendment as well.  Then one could say that the issue had to come forward every session, as the Constitution required it, the people approved it, and the people wanted us to stay consistent.  Ms. Lusk continued by discussing aspects related to A.B. 66.

 

Chairman Manendo interjected that there would be no discussion of A.B. 66 during the current hearing.  A hearing had been held, and, if it were brought back in work session when time was allotted, the Committee might take additional testimony.  There were questions from Mr. Knecht and possibly other Committee members and another witness.  Again, he apologized for limiting Ms. Lusk’s time before the Committee.  Ms. Lusk added that what she was trying to say was that the same ideas could apply to A.B. 66.  The Chair stated his appreciation for her suggestions and thanked her for her contributions. 

 

Assemblyman Knecht was comfortable with the bill as proposed, he stated.  He was more comfortable with Mr. Richardson’s health insurance amendment.  He said he believed, however, that he would be even more comfortable with Mr. Schumann’s idea that legislators should vote their own compensation levels and, especially, Ms. Lusk’s suggestion that it be done on the basis of duties each session.  He had checked with Ms. O’Grady, the Committee Counsel, about what the constitutional restrictions were as to what legislators were able to do.  As a very preliminary opinion, it would be possible, in his mind, having read the constitutional restriction, to do two things:  one would be to increase the per diem, and two would be to provide for an additional lump sum amount which would reach a market-based or duties-market-based compensation.  After the Committee heard from the rest of the witnesses, Mr. Knecht was willing to move the bill as amended by Mr. Richardson’s insurance proposal.  But, if there were the opportunity, he would be willing to move it to make some increases right now along the lines that Mr. Schumann suggested.

 

John Wagner, representing Nevada Republican Assembly, a volunteer group, wanted it noted that he was a conservative Republican.  He supported the fact that legislators needed a salary increase and health insurance for themselves and their families during each session.  He had spoken with another legislator in the halls that day asking him if the legislators had a way to raise their own salaries.  That gentleman stated that they did have that ability currently, but the legislators lacked the courage to do it. 

 

As Mr. McCleary stated, Mr. Wagner believed that it just should be done.  Like Mr. Schumann, he did not think anybody would complain if the legislators “upped” their salaries.  It surely would not be used as a campaign issue against any of them.  Mr. Wagner believed it was justified when one considered how little was earned by the legislators.  He also had a concern about the constitutionality of it since that was considered in Mr. Mortenson’s Committee, and the issue was balked at.  He wondered if it was possible to accomplish raises and insurance through statute alone.  He also did not like the idea of the senators, mid-term, receiving an increase.  He believed that any increase should not be effective until the Seventy-Third or Seventy-Fourth Session of the Nevada Legislature. 

 

The idea of an independent committee, even with public input, was not to his liking.  That committee could say and do as it wanted.  Even though the legislators had the final say, Mr. Wagner affirmed that he did not trust committees or commissions at all.  He did trust the legislators to do the right thing.  He did not believe that the legislators would vote for some huge raise.  If salaries were increased to $20,000 for the session, he did not think there would be any complaints.  He surely would not, and he was an active campaigner during election years.

 

Mr. Schumann spoke in support of Ms. Lusk’s ideas regarding health insurance.  He stated that he had not mentioned that before.

 

Chairman Manendo, hearing no further comments, closed the hearing on Assembly Bill 464.

 

As the Committee waited for Assemblywoman Chowning to arrive to introduce Assembly Bill 330, Chairman Manendo spoke of accusations that, under NRS 241.020, had been made that the Government Affairs Committee had violated the Nevada Open Meeting Law by not giving notice of the hearing on A.B. 330 within three working days.  Under NRS 241.015, “the public body” did not include the Legislature of the State of Nevada, so we would not be able to break the Open Meeting law.  However, that law had not been breached, Chairman Manendo declared.

 

For the record, A.B. 330 was first posted on March 19th at 4:55 p.m. for a hearing on March 25.  It was then posted on March 26 at 1:58 p.m., for an April 1 meeting.  It was then removed [from that agenda] and reposted on the 31^st of March at 2:07 p.m. for this particular hearing on April 3, all over the three-day posting.  In fact, this bill has been on an agenda for 15 days.  I take great offense that anyone in this public who has criticized our staff for violating a law that it did not violate.  We have wonderful staff in this Committee, they work very hard, and they are as accommodating as they can possibly be to legislators and the general public.

 

Assembly Bill 330:  Makes various changes concerning peace officers and other public officers and employees. (BDR 23-899)

 

Chairman Manendo welcomed Assemblywoman Vonne Chowning and introduced her to the Committee and the public.  He encouraged her to bring to the witness table with her any others whom she wished to have speak on Assembly Bill 330.

 

Assemblywoman Vonne Chowning, Assembly District No. 28, thanked the Committee for inviting her to speak about A.B. 330.  It was a privilege, she confirmed, to bring helpful pieces of legislation to the Committee for all to address.  Assembly Bill 330 was a “Peace Officers’ Rights” bill.  She had proudly been a part of passing “peace officers’ rights” legislation in the past.  She was the first cosponsor, along with Assemblyman Williams, of the “racial profiling bill” of the Seventy-First Session, which was landmark legislation.  She had always been supportive of the review boards, the citizens’ review boards, and stated that she was one who had and would continue to steadfastly stand for the protection and rights of all citizens.  That included the everyday, regular citizens that all legislators were proud to represent.  It also included peace officers who deserved rights to a hearing as well.  She declared that we all needed to place ourselves in each of those positions and see how we would prefer to be treated.

 

Assemblywoman Chowning affirmed that she had always stood for and had always taught her children as well as her constituents to always stand for “good behavior needs to be awarded; bad behavior needs to be punished.”  It sounded simple, but it came down to that, she confirmed.  No matter who the person was, that was the underlying principle.  And, that was the underlying principle, as well, in the bill she was introducing to the Committee.

 

Mrs. Chowning stated that she was not a police officer; she was a former schoolteacher, real estate sales person, a mother, and a grandmother.  She was not an expert in being a peace officer.  However, she declared, she was proud to represent the principles that lay within the office of a peace officer.

 

Mrs. Chowning elected to underscore the goal of Assembly Bill 330.  The bill supported the objectives that had already been established in the Nevada Legislature in recognizing that the rights and protections provided in NRS 289 were supposed to be “due process” rights.  Effective law enforcement was dependent upon stable employer/employee relations between professional peace officers and their employers.  To ensure that those stable relations continued and to further ensure that effective services were provided to all people of the state, it was necessary that that NRS chapter apply to all peace officers, which were defined in that chapter, wherever they were situated within the state.  A.B. 330 additionally extended protections to employees of law enforcement agencies sometimes known as civilian employees. 

 

Assembly Bill 330 had been amended extensively (Exhibit J).  The amendment had been approved after much diligent, steadfast, and time-consuming work had been done on it; it earned approval of law enforcement employees, management, concerned legislative advocates, and other concerned citizens and groups.  Everyone’s issues and concerns were brought forward and were hopefully met in the amended version of the bill. 

 

Assemblywoman Chowning chose to walk the Committee through the amended version of A.B. 330, section by section (Exhibit J).  She asked the Committee to first look at Sections 12 through 17 and to pretend that they were not there.  The entirety of those sections had been deleted.

 

Ron Dreher, representing the Peace Officers Research Association of Nevada, stated that Assemblywoman Chowning was quite correct.  By deleting those sections, the current language of the law stayed in effect.  What the Committee was looking at, if they looked at the bracketed language from Section 12 back, they would see that the language originally contained in A.B. 330 had been eliminated.  The deletions were made for Sections 12 through 15 for the purposes of A.B. 330, the original as well as the amended version.

 

Chairman Manendo stated that he was lost in the discussion.  While other Committee members had copies of the bill printed in black and white, he had a copy that was colored.  He asked if the discussion would be based on the colored copy in his possession.  Mr. Dreher assured him that it would.  The Chair further requested reassurance that in the black and white versions, sections 12 through to the end of the document would not be crossed out.

 

Mr. Dreher asked Committee members to look at Section 12:

 

There is not a bracket there … because that is the current language in the law.  But, if you look at the beginning of the very next page, under Subsection 4 just before it says “Section 13,” the brackets enclose “and Sections 3 and 4 of this act.”  Indirectly that said that Section 12 has no meaning.  For the purposes of what we are talking about, Sections 12 through 15 or 16 or 17 are removed.  Even though it is still within the concept of this, those sections and the proposed language in those sections that we had have been deleted.

 

Assemblywoman Chowning stated that it was a little confusing, but it referred back to original statute, and the changes that were going to be made had now been eliminated.  For all intents and purposes, in the final version of A.B. 330, those additionally would be eliminated.  It just referred back to what was already contained in statute.  There was no change.

 

Chairman Manendo referenced Section 13 as an example.  It would return to the current language in the law.  Mr. Dreher confirmed his observation.

 

Assemblywoman Chowning asked the Committee to turn back to Section 1 of the amended bill.  In Section 1, the first four lines were eliminated.  Language was added to state that “For purposes of NRS Chapters 281 and 289,  ‘employee of a law enforcement agency’ means any person employed by any law enforcement agency, entity or authority, commissioned or non-commissioned, included within the purview of NRS 289.150 to 289.360, inclusive.”  Such an employee would be able to receive the same protection afforded to law enforcement officers under NRS 289.  Section 2 simply added new sections, Sections 3 and 4.  Section 3 restricted the disclosure of internal affairs records after five years from the conclusion of the investigation with certain exceptions.  In Section 4, the bill restricted compelled statements of peace officers from being used in proceedings with certain exceptions. 

 

Chairman Manendo asked if Mrs. Chowning wished to take questions section by section as they continued through the amended bill.  She agreed to do so.

 

When Assemblyman Williams asked Mrs. Chowning to repeat her explanation of Section 4, she stated that it “restricts compelled statements of peace officers from being used in proceedings with certain exceptions.”

 

Mr. Williams asked what the purpose of that language was.  Mr. Dreher responded by stating the purpose was to restrict the disclosure of compelled statements of peace officers in civil proceedings.  Currently, when a peace officer was involved in an internal affairs hearing or investigation, they were subject to the rules of NRS 289.060, which set forth procedures that led up to an investigation.  The peace officer was read a warning, called a Garrity warning for Garrity v. New Jersey.  The admonishment stated that the officer was compelled to provide a truthful statement to the agency and that any statement made “cannot be used in any subsequent criminal proceeding.”  Section 4 would extend that same admonishment to cover civil and administrative proceedings with several important exceptions.  Those exceptions were debated over a long period of time, and that same language had been introduced in the past two legislative sessions, but without the exceptions.  Currently, A.B. 330 spelled out three exceptions.

 

One exception was if the law enforcement agency brought a concern or a civil proceeding against a peace officer.  If it were brought by the peace officer or the representative of the peace officer to contest the imposition of any disciplinary action, as that was a concern, previous language would have restricted them from using that information.  Second, it would also have restricted the department, the city, the attorneys, and others from using it.  Essentially, what was said was, “Here are the exceptions.  This is when you can use them in civil proceedings.”  The third was “to impeach the testimony of that peace officer if, authorized by the court or administrative hearing officer, as applicable in any civil action where relevant.”  If an officer said one thing in a compelled statement in an interview, and subsequently testified in a civil proceeding about something else that was the opposite of what was said in the internal affairs hearing, then that statement could be used against that peace officer to impeach his testimony.  Those were the exceptions placed there for very good reasons.

 

Assemblyman Williams questioned Mr. Dreher’s comments that the language had been presented in the last two sessions except for the exceptions.

 

Mr. Dreher stated that what one would find regarding Assembly Bill 323 of the Seventy-First Legislative was that the legislators did not receive the amendments in time, and the bill died.  During the previous session, the Seventieth Legislative Session, the language was tied to the polygraph exam, and the bill was killed over that.

 

Assemblyman Williams expressed concern about the language in the bill.  He stated that legislators had worked on the language to put it into place over the last several sessions, including a Citizens’ Review Board.  The language in all of those bills represented compromises and agreements made with law enforcement.  What he wanted was clarification as to the status of those agreements.  He wondered if they were now “off the table.”  Much of the language diluted and turned back the clock on all of the bills passed, such as the establishment of Citizens’ Review Boards, police review boards, and other agreements. 

 

If those agreements were now no longer valid and “off the table”, he needed to know that, because the Committee was working its way through A.B. 330.  What he had read so far in the bill wiped out everything that had been done in the past when it came to those particular situations, he stated.  So, as they went through the bill, and it might take time when he asked about “why” those sections came out as they did, it was very important to him that the agreements were kept.  If law enforcement agencies around the state had agreed to A.B. 330, then Mr. Williams believed they were back to “square one.”  That was what it sounded like to him at that point.

 

Detective David Kallas, Executive Director of the Las Vegas Police Protective Association, was speaking on their behalf, as well as on the behalf of the Police Managers and Supervisors Association.  He presented a copy of his position paper to the Committee (Exhibit K).  Regarding the Citizens’ Review Board, in the initial bill draft proposal, there was language that memorialized what they believed was the intent of the Legislature when they enacted the law that gave power to that board, and to limit their subpoena powers of police officers.  Since the time of the initial proposal until the Committee had received the amended version of A.B. 330 during the current hearing, they had eliminated that proposal to agree with the language in the Citizens’ Review Board’s makeup, and their ability to subpoena witnesses before them.

 

For the record, continued Detective Kallas, as the representative of those two organizations, he did not believe it was ever the intent of the Legislature nor the intent of the authors of the bill proposal and that law to give the Citizens’ Review Board the power to subpoena police officers to compel them to testify in front of their board in the venue in which they could possibly receive punitive disciplinary action.  With that in mind and in order not to muddy the balance of the current bill proposal, he and his organizations had agreed in their meetings with management and other employee representatives to withdraw any proposed changes to the language about the Citizens’ Review Board and their powers or lack thereof regarding subpoenas of police officers.

 

Assemblyman Williams stated his understanding of what Mr. Dreher had said in testimony.  Subpoena powers that the Citizens’ Review Board now had in Las Vegas, the only place that had such a board in Nevada, still existed, and it was not the intent, with A.B. 330, to remove those.

 

Mr. Dreher declared that Mr. Williams was correct.  If the occasion arose in which the police officers felt the Citizens’ Review Board was overstepping the limits imposed on them by the Legislature, they would seek the appropriate judicial review of those powers in district court.  There was no intention of asking the Committee or the Legislature or challenging the current regulations governing the Citizens’ Review Board currently to make any changes.

 

As one of the authors of the bill proposing the Citizens’ Review Board, Assemblyman Williams clarified that the intent to have subpoena powers was always his intent.  It appeared that, to some people, the authors were anti‑police.  He wanted to be clear once again that he supported police in the same way that Assemblywoman Chowning had said she had in her opening statement.  Even though he had personally authored bills about eliminating the use of chokeholds by police officers, racial profiling, and the Citizens’ Review Board, he had also authored past legislation that paid college tuition of the children of police officers killed in the line of duty.  The Legislature was pro‑police.  But, when it came down to one particular bill that would wipe out previous agreements and bills, he had a grave concern.  Negotiations about police-related issues were continuing for the current legislative session and, before going any further, he needed the reassurance that agreements reached were agreements that were still viable.

 

Ron Dreher responded to Mr. Williams’ concerns by stating that there was no intention of attempting to obliterate any past agreements.  As Mr. Kallas testified, that was not the intent.  The intent was to provide “due process” and to enhance the substantial due process currently available; because peace officers were held to a higher standard, they needed to be held accountable for their actions and responsible for all those things that they had.  There was nothing “off the table” as far as he knew that would change agreements of the past.  A.B. 330 simply provided the protections that peace officers needed when compelled to provide testimony in an internal affairs hearing.  That was all that the bill intended to do.  That was the civil protection portion.  There were other protections placed in the bill for due process purposed with the exceptions needed to hold peace officers accountable.  Basically, peace officers simply wanted the same rights that every other citizen had when going through an internal proceeding.  Nothing about it was intended to undo what had been accomplished because peace officers had been given their “bill of rights” over the years.

 

Mr. Williams wondered if giving peace officers the same rights as all citizens had meant that there would be a time limit when records and/or information would be expunged.

 

Mr. Dreher stated that that was done currently.  What A.B. 330 was tied to was the internal hearings, not criminal hearings.  If peace officers were arrested for criminal matters, subsequent to the punishment taken after sentencing, one was able to return to get the record expunged.  The next section of the bill was a nondisclosure portion, which stated that departments were prevented from disclosing information, but with exceptions.  Those exceptions were needed.  At the end of five years, or a lesser time based on the agency, as existed for most agencies, information was sealed.  It was not expunged.  The question was, “Could you get those records back and use them against an officer?”  That was the concern. 

 

Those working on amending the bill met with attorneys, as Assemblywoman Chowning stated, in an effort to work that out with management, with the citizens’ concerns, and other things, to put those issues “to bed” and to have a closure for an officer who had been disciplined for whatever reason.  If there was a civil proceeding, though, that date expanded and remained expanded until the appeals process was finished, which could be eight to ten years, or longer.  If there was a similar act, the clock never started on the five years, until the investigation was complete for those same or similar acts.  The checks and balances that were placed in A.B. 330 were there, not to cover up actions of peace officers, but to place a point of closure so that one would be able to move on.

 

Mr. Williams attempted again to confirm that whatever was done for police officers was what was done for the regular citizen.

 

Mr. Dreher reiterated that the very first portion of the bill simply extended to law enforcement employees, under NRS 281, the same rights and privileges that the law enforcement officers had currently under NRS 289.

 

Assemblywoman Chowning wanted to make absolutely clear that the intent of the bill was definitely not to afford privileges to peace officers that were not the same as those of the regular citizens in the state.  When the bill first came out, it did appear that there were past agreements that were being turned away.  Because of that appearance, much work had been done since then to make certain that the past agreements remained intact.

 

Assemblyman Collins asked for clarity when expunging and/or sealing records was mentioned.  People became confused.  Nevada did not allow criminal records to be expunged.  The differences in the handling of records needed to be more clearly stated regarding criminal, civil, and internal affairs records. 

 

Mr. Kallas stated that Mr. Collins was correct.  The matters being discussed were internal employee/employer matters.  There was no intent to seal criminal records in the bill under discussion.  The statutes were in place to direct the handling of those.  A.B. 330 was directed to strictly internal employee/employer relationships.

 

Chairman Manendo gave notice to Committee members that he had requested e-mail notification when the Floor session was to meet so that the legislators would be able to attend.  He would recess the hearing until after the Floor session stating that the Committee would continue with the bill then until another committee required the use of the room.

 

Assemblywoman Chowning asked Committee members to look at Section 5, middle of the page.  Section 5, she stated, enhanced the definition of “punitive action” which was present in subsection 3.  It read “any action which may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer of a peace officer for purposes of punishment on grounds other than merit.”

 

Section 6 prevented law enforcement agencies from the use of punitive action against a peace officer if he exercised his rights under the existing NRS 289.

 

Section 7 clarified the existing statute, NRS 289, by defining what a reasonable time would be for the interrogation or hearing held by the agency against the peace officer.  It clarified the admonishments that must be given to peace officers who were noticed of an internal affairs investigation.  It prohibited photographs of peace officers from being released to the media without the consent of the officer.  As the bill was still in progress, Mrs. Chowning noted, that portion was being changed as well.

 

Mr. Dreher stated that the purpose was to have some consistency as to how officers were notified in regards to a complaint that had been lodged against them with a time frame in which they had, along with their representative, to respond to internal affairs or to command-level investigation with their representative.  The amendment presented by Mr. Dreher, Exhibit L, clarified that a “representative” would be an individual other than a collective bargaining agent if such an agent did not exist.  Regarding the photograph, that portion of the bill had already been amended.  In Section 8, subsection 4, it would state, “the agency shall not provide the home address or photograph of any peace officer to any news media without the consent of the peace officer unless the peace officer had been arrested and/or indicted.”  There would be no release of a photograph of a peace officer involved in an investigation that was internal in nature.

 

Assemblywoman Chowning continued the explanation of A.B. 330 by drawing attention to Section 9.  Section 9 provided notice of investigations to any peace officer who was involved in an internal affairs investigation.  It also provided the peace officer the right to have access to and to copy the investigative files after the investigation had been concluded if the police officer appealed a recommendation, which was for the purpose of imposing punitive action. 

 

Assemblyman Williams asked if other parties of an investigation also had the right to get that information.

 

Mr. Dreher stated that, currently, some agencies allowed that; some agencies did not.  Some agencies would give “you” copies; some agencies would not.  That was one of the reasons for expanding Section 9 to include employees of law enforcement agencies as well. 

 

Assemblyman Williams stated that if there were an investigation, that information would include those who filed the complaint.  He wondered if those individuals had the right to get information that involved them as a part of the investigation.

 

Mr. Dreher answered Mr. Williams’ query with a simple “No.”  The files of internal affairs were kept entirely confidential.  They had been that way “forever.”  The only time those files were even discussed or given out was if a peace officer was appealing a disciplinary action, and it were to go to court for wrongful termination or discipline in those matters.  If a citizen made a complaint against a peace officer and that individual wished to find out what the internal affairs investigation concluded, they did not get that information.

 

Assemblyman Williams spoke more pointedly, he said.  The information that the officer requested concerning himself or herself was accessible to the officer; if part of the investigation that directly involved the citizen were requested by the citizen, he wondered if that citizen would receive that portion of the investigation that involved that citizen only.

 

Mr. Dreher stated that it had always been the position of internal affairs regarding any type of investigation whether it were criminal or administrative, that, if a citizen provided a statement, he/she was certainly entitled to a copy of that statement.  Most statements were tape-recorded, and, yes, the citizen was allowed a transcript of his/her own statement.

 

Assemblyman Williams followed up by asking if a citizen, who filed a complaint or who intended to file a complaint, were required to submit to a polygraph test prior to giving testimony.

 

Mr. Dreher answered, “No.”

 

Assemblyman Williams asked if there would be a problem placing that language in Assembly Bill 330.

 

Mr. Dreher believed, he said, that during the last session of the Legislature, in 2001, there was a great deal of discussion about that.  The result was that the polygraph was eliminated, and it was his understanding that that had become part of the Nevada Revised Statutes. 

 

Assemblyman Williams wanted language included in A.B. 330 that stated that a person would not be asked, upon filing a complaint against an officer of an alleged situation, nor told that a polygraph test was expected prior to the filing of that complaint.  Again, he wondered if there would be problems with including language directed to that in the bill.

 

Mr. Dreher stated that it had always been a tool of the police officer when conducting an investigation, when the interview was concluded, to ask how the individual would do if he were to take a polygraph test.  They did not, especially after the long discussions during the previous legislative session, start with any statement that would be construed as a request for the citizen to take a polygraph test regarding the complaint that the individual was about to make.  That was not done to his knowledge.  He represented police officers at internal affairs investigations and administrative hearings, and that question had never been asked as far as he was aware, especially in view of discussions of the past. 

 

Assemblyman Williams stated that he was very careful to say “alleged” complaints as they were all alleged until proven.  People who brought complaints or who intended to bring complaints for an alleged incident that they felt was incorrectly handled by a police officer, were many times very emotional, very nervous, and very reluctant to even approach the agency to file a complaint, even if they felt very strongly about what had allegedly been done to them. 

 

Assemblyman Williams stated that many people had spoken to him who found themselves in that situation and were very discouraged, because they felt wronged in their hearts and minds.  To hear, when they entered the agency, “The first thing you have to do…” or “Would you mind…” or “Before you file a complaint, we have to give you a polygraph test“ was not acceptable in his mind.  All present had agreed that polygraph tests were not admissible in court.  Many continued to find it confusing that a person would still be asked a question about taking a polygraph test.  There was also confusion by many about the necessity for submitting to a polygraph test when such a test was not admissible. 

 

For the benefit of the law enforcement community and the community at large and to continue to build the partnership that he wanted to see, it would be a very good idea, he said, to include in A.B. 330 that a person should not be asked about or asked to submit to a polygraph test based on the desire to file a complaint.  He stated that if the sponsor of the bill would agree, it would take away a lot of the confusion that existed.

 

Detective Kallas stated that he thought that issue would have to be addressed with the employer and the law enforcement agency itself.  They would be the ones who determined how complaints were taken and dealt with.  In today’s world, complaints could be filed by fax, by phone, by e-mail, and over the Internet anonymously.  He was not sure under what circumstances people were being asked to take polygraphs before a complaint would be taken.  He would have to defer to the management or the employer of the law enforcement agency about the practices specific to them.

 

Assemblyman Williams affirmed that a very good thing about the state’s legislative body was that they set policy that would affect all law enforcement agencies in the state.  When something was stated in the law, it reaffirmed the meaning of the law.  If that type of language were in A.B. 330, it would be very clear to everyone statewide.  If a person who lived in Mesquite were to move to Elko, that person would like to know that there was consistency in the application of the rule about not requiring a polygraph test to make a complaint.  Each agency that might not enforce that ruling currently would again be given clear knowledge of the law concerning the taking of a complaint. 

 

Assemblyman Williams suggested making it very clear in the law before them today that the polygraph test was not admissible in court, the polygraph test would not be suggested, and the polygraph test would not be given when a person had a complaint.  He wanted language in A.B. 330 that made clear that a person would not be subjected to the question of whether he or she were willing to take a polygraph test.  If a person volunteered to take such a test, that would be fine, Mr. Williams concluded.  If a person felt so strongly about his complaint that he wanted to submit to a polygraph test, that was also fine.  However, there were many people who filed complaints who were told, when walking through the door, that the first thing that the individual had to do was to agree to take a polygraph test.

 

Assemblywoman Chowning reported that she had been told that that question was not asked.  If it happened, then that would be a grave concern.  It would not apply to the section of the bill being discussed, however, nor to the section of the statute addressed by the bill.  The willingness of the sponsor was absolutely there to address that concern and to work towards getting the truth out to see what had happened.  If it were verified, it would not hurt to put that language somewhere in A.B. 330.  It would strengthen the bill and would be addressed to another section of the statute.

 

Assemblyman Williams stated that he wished he could say, in his district, that no one had made such a claim.  If a new section were added to the bill, he would agree that it would strengthen the bill.

 

Mr. Dreher spoke again to address Mr. Williams’ concern.  The original intent of Section 1 would have included that under perjury.  Language about that was eliminated.  There were, however, still sections of state law where that language would certainly fit.  NRS 289 was, however, basically limited to peace officers; that was their “bill of rights.”  Placing a statement that a person filing a complaint was not to be asked to take a polygraph nor be asked if he wanted to take one would be more appropriately placed into NRS 281, he thought.  Maybe Legal Counsel would be more appropriate to ask.  Obviously, there was no problem in adding that language; the difficulty was to find the proper place for it.

 

Assemblyman Williams than asked if it was necessary to find the appropriate section of the law for such an insertion.  He wondered if the sponsor of A.B. 330 was agreeable to draft language that would eliminate the demand by law enforcement to force people or to suggest to people to take a polygraph test based on the filing of a complaint.

 

Assemblywoman Chowning stated, “Yes.”

 

Assemblyman Collins suggested that, at the top of the form, in a block on the complaint sheet, a statement be included to state, “You should not be asked nor be required to take a polygraph test.”

 

Assemblywoman Chowning continued with her explanation of A.B. 330.  In Section 10, peace officers employed by the state were to be allowed to disclose information regarding improper governmental action without fear of retribution by their agencies.  That would be the same as was afforded to other peace officers.

 

Assemblyman Williams wanted clarification as to whether the exclusion of state police officers was to be deleted in subsection 5.  Mr. Dreher affirmed that and added that there was a whistle-blower law currently for state law enforcement.  Deleting subsection 5 would allow state law enforcement the same whistle-blower laws that local government had. 

 

Moving on to Section 11, Mrs. Chowning explained that it provided the ability for courts, state or local review boards, arbitrators, or internal agency review boards to sanction law enforcement agencies, employees’ agents, or representatives of those agencies for excluding evidence or information obtained as a result of the violation of the rights of the peace officer during an internal investigation.  For further explanation, Section 11 contained three subsections.

 

Ron Dreher explained the three subsections.  First, the purpose for having the penalty within NRS 289 for violations through intentional or unintentional actions was that police officers had been told that NRS 289, in its entirety, was an advisory-only set of laws.  It contained no penalty, even if the allegation was undisputed, if a violation of rights had occurred.  He was prepared to present evidence in the original bill that showed the Committee and to articulate for them what had happened to individuals over the years.  In an effort to get a sanction against purposeful violations, those who worked on the bill began with just small sanctions.  If, in fact, someone violated provisions of NRS 289, in the course and scope of his employment, the result was the loss of the case if it were shown that one violated the person’s rights.  It would be up to the court, the arbitrator, or the internal affairs review board to decide that.  There were sanctions placed against violations, and there was at least a penalty phase in NRS 289.  It would no longer be advisory only.

 

Chairman Manendo referred to a single-page amendment that was offered by Mr. Dreher (Exhibit L).  In Section 7, Mr. Dreher noted that some of the language had been amended but had not included all that was discussed between interested parties.  Near the bottom of the page, at the beginning of Section 8, language was added to what existed in the amended bill.  It stated, “The agency shall provide reasonable written notice to any peace office interviewed during the investigation and his collective bargaining agent or representative, if no collective bargaining agent exists, if practical under the circumstances, which notice shall not be less than 48 hours, unless otherwise mutually agreed upon by the agency and the peace officer.”  It just added and clarified what a collective bargaining agent was, what a representative was, and when, in fact, no collective bargaining agent was available, then the other provisions of that section would apply.  It was clarifying language.

 

David Kallas reaffirmed the addition of “if no collective bargaining agent exists” to the bill.  When the concerned people originally met with the employer group and discussed the bill, that language was supposed to be in there.  It set up the appropriate protocol as to whom the notification was sent regarding the internal investigations.  In some agencies, there were collective bargaining agents; in some agencies there were none.  It allowed those groups to receive the same notification as was received by the employee.

 

Chairman Manendo also asked about Section 17 and the repealed section of language.

 

Ron Dreher explained that the language was removed from A.B. 330.  LCB had placed the language into the bill on purpose when the original section of the bill was still there.  Because Section 1 changed, Section 17 was no longer needed.

 

Assemblyman Williams commented on Section 17.  It had been deemed unconstitutional.  He asked that it be repealed from the statute all together.

 

David Kallas responded by stating that he believed that was why it had been included.  If so, it could be shown that it had been repealed and would be removed from the statute, because it was ruled unconstitutional.  It should be stated that Section 17 was removed from the bill and would be removed from the statute.

 

If that was not clear, stated Mrs. Chowning, to repeal the statute, she would be happy to include that language.

 

Assemblywoman Pierce questioned Section 3, subsection 1.  Beginning in the middle of that long sentence, she read, “…shall not disclose the existence of that material in the file to any person or organization outside of the law enforcement agency unless said time limit is extended due to a sustained complaint of the same or similar nature.”  She wondered if the frequency of the occurrence often required an extension of the time limit due to a sustained complaint.  She also wondered if there was further information about that in some other place in the statutes.

 

Mr. Kallas stated that the general language contained in that section was similar to language contained in some law enforcement agencies’ own policies.  It was placed in the bill for that reason.  The authors and sponsor of the bill along with employers who participated in the language changes agreed that the words “the same or similar” were somewhat subjective.  They were working on a way to get vocabulary that would reflect what a “same or similar” situation would be.  As part of that section, on the third to the last line that ended with “outside of the law enforcement agency,” it should also say “unless authorized to do so by the employee for purposes of employment by another law enforcement agency.”  If an employee decided he wanted to hire on at another law enforcement agency, that agency should be made aware of the type of background that individual had.  If the employee authorized its release, the agency would be obligated to release it to the other agency.

 

Chairman Manendo apologized for stopping the hearing.  Speaker Perkins was in place, and the Floor session was about to begin.  The hearing was recessed until immediately after the Floor session.  All materials could be left in place.

 

 

Chairman Manendo, following the Floor session of the Assembly, called the hearing back to order.  He noted that the videoconference link with Las Vegas had disappeared.  He apologized for the loss of the teleconference link and stated that he hoped it would be restored quickly as the hearing progressed.

 

Assemblywoman Pierce affirmed that Mr. Kallas had answered some of her questions, but not all.  She was confused by the answer she had received when she asked about the last few phrases of Section 3, subsection 1.  She hoped for further explanation.  She wondered if there was a mechanism in some other part of the statutes that addressed or described in greater detail how a time limit was extended, who extended it, and for how long it was extended.

 

Detective Kallas stated, that, for NRS purposes, that was the only reference that he was aware of.  He thought that in the individual law enforcement agencies there might have been similar language defining the “same or similar nature.”  In regards to NRS, he did not know.

 

Mr. Kallas gave clarity to the language regarding the section Assemblywoman Pierce was speaking about, and he chose to read the language that had been included.  Section 3, subsection 1, read:

 

Except as otherwise provided by federal law, not later than 5 years after the conclusion of an internal investigation of a peace officer, the law enforcement agency shall not use any such conclusion, punitive action, work performance assessment, longevity ruling, or any other personnel action based on that internal investigation for any personnel purpose and shall not disclose the existence of that material in the file to any person or organization outside of the law enforcement agency unless authorized to do so by the employee for purposes of employment by another law enforcement agency unless said time limit is extended due to a sustained complaint of same or similar nature.

 

In Section 8, subsection 4, for clarification purposes, the language would now read: 

 

The agency shall not provide the photograph of any peace office to any news media without the consent of the peace officer unless the peace officer has been arrested or indicted.

 

Chairman Manendo asked about the previous language, “home address,” and was told by Mr. Kallas that it had been excluded.  Referencing the single page previously submitted by Mr. Dreher (Exhibit L), Mr. Kallas addressed Section 8 again.  In subsection 1, he read it as amended: 

 

Before any interrogation or hearing is held relating to an internal investigation of the activities of any peace officer which may result in punitive action, the agency shall provide reasonable written notice to any peace officer interviewed during the investigation and his collective bargaining agent or representative, if no collective bargaining agent exists, if practical under the circumstances, which notice shall not be less that 48 hours unless otherwise mutually agreed upon by the agency and the peace officer.

 

Mick Gillins, representing the Nevada Conference of Police and Sheriffs, added that he and his associates were obviously in support of A.B. 330.  He thought it was important to note that both the labor organizations for law enforcement and the management organizations for law enforcement had met repeatedly over the last few weeks, both impromptu and planned, to attempt to address the concerns that were raised.  They had come to an understanding regarding the language, probably something that had not occurred in other sessions.  He wished to compliment all who worked toward and put together the amended version of the bill presented.

 

David Kallas also submitted a letter to the Committee from Michael Neville, President of the Washoe County District Attorney Investigators’ Association (Exhibit M).  The letter stated that, in his capacity as a director of the Peace Officers Research Association of Nevada, he had represented professional peace officers throughout Nevada.  He asked, on their behalf, that the Committee pass A.B. 330.  He continued by stating that Ron Dreher would testify in considerable detail about the issues addressed by A.B. 330.  He pointed out that a great deal of work had been done to tailor the legislation to fit the needs of various and often-competing interests.  He stated his belief that the compromises had been made and served to remove any controversy that may have been perceived from its original form.  He urged passage of A.B. 330.

 

Assemblywoman Chowning thanked the Chair for the time given by Committee members and staff to her and to all of those working on the amended version of A.B. 330.  She reiterated that much of the testimony was clarification, but basic rights for people, regardless of who they were, should not be trampled upon.

 

Gary Wolff, Nevada Highway Patrol Association, stated that he and his associates fully supported A.B. 330 as amended.

 

Stan Olsen, Nevada Sheriffs’ and Chiefs’ Association and the Las Vegas Metropolitan Police Department, clarified some points.  In past sessions of the Legislature, when the issue of polygraphs was raised, the Nevada Sheriffs and Chiefs Association and the Metropolitan Police Department were opposed to removing polygraphs for police officers.  The body passed legislation that would remove them, and those groups no longer gave polygraphs for complainants or police officers unless one or the other asked to be polygraphed.  Those groups were opposed to the law that stated that people would be held criminally liable if they were to file a false complaint against a police officer.  The body passed it, and it was declared unconstitutional.  He stated that he thought it was a good decision by the courts. 

 

Mr. Olsen further stated that he was in agreement with Assemblyman Wendell Williams.  “He and I were the only ones present during the negotiations on the Civilian Review Board (CRB),” he affirmed.  It was his belief, he said, as it was Mr. Williams’, that the intent was the subpoena powers of the CRB, as they were currently operated.  The groups he represented, stated Mr. Olsen, felt that the CRB worked, and they wished to thank the proponents of the bill for removing that portion. 

 

Initially, A.B. 330 was completely unacceptable to law enforcement management.  In his opinion, reflecting that of the groups he represented, the only portion worth saving was “protecting the officer’s home address and photograph.”  There was a lot of work done to make the bill into something that was acceptable.  There were many, many hours of face-to-face negotiations that went on for probably 20 hours.  They were in agreement with the amendments just submitted, and they believed that it offered the protection that the labor group wanted with a minimum impact on management rights and the public.

 

Chairman Manendo thanked Mr. Olsen for his kind statements regarding Assemblyman Williams and stated that Mr. Williams deserved kudos for his hard work over the years.

 

Rose McKinney-James, representing the Clark County School District, believed, she stated, that the Committee had testimony on record, because the school district had some concerns regarding A.B. 330.  She had had the opportunity to review the amendment and believed that the amendment adequately addressed their concerns.  Specifically, the school district’s concerns were about removal of the cap as well as insuring that the school police had the opportunity for a comprehensive background check.

 

Wayne Carlson, Executive Director, Nevada Public Agency Insurance Pool, prepared written testimony in advance of seeing the amendment.  He was not submitting those, as they were comments in opposition to the original bill.  At the current time, he believed that, with minor changes to the amendment as proposed, it was a supportable bill.  What he suggested was in Section 3, the third line from the bottom of subsection 1, “shall not disclose the existence of that material to any person or organization outside the law enforcement agency…”  At that point he wanted to insert “except pursuant to NRS 239B.020.”  The purpose was that it would then outline very specifically what a background check would entail and how it was to be obtained. 

 

There was much discussion about the issue of “same” or “similar.”  He was not sure that a final clarification had been made.  That was an area that would possibly need further clarification because of the time frame as to when it started and when it ended.  One point of the discussion concerned “said time limit is extended,” referenced in Section 3, subsection 1.  The suggestion was to remove that and replace it with “said time limit is extended due to…” and to continue the sentence as “a sustained complaint of the same or similar nature…” adding “occurs” as the last word in that sentence.  Again, he stated that how the time ran was an unresolved issue. 

 

Mike McCormick, Deputy District Attorney, Douglas County, explained that one of his chief functions was to serve as legal counsel to the sheriff’s office, which included the professional standards unit.  He initially signed in as opposed to A.B. 330.  After reading the amendments, his concerns were addressed.  The one issue he would still like to address was on page 3 of the amended bill, the word “expunged.”  “Expunged” had a very legal connotation, which meant, “ to get away.”  A file, after five years, should not be “expunged” but should be placed in a separate confidential sealed file.  That would also address the concerns of Mr. Carlson for background checks under NRS 239B.020.

 

Gary Peck, American Civil Liberties Union (ACLU), began by thanking the Chair for being as responsive as he had been to the heartfelt concerns of the community and for making sure that the hearing was, in fact, teleconferenced so that those in Las Vegas would be able to voice their concerns about Assembly Bill 330.

 

Mr. Peck also wished to thank the lead sponsor, Assemblywoman Chowning, for taking the time to call Mr. Peck to explain her support of the proposed legislation.  He understood that both Mrs. Chowning’s and the Chair’s offices were inundated with phone calls from angry constituents who may have let their emotions get the best of them and may have been unduly harsh over the phone.  He assured the Committee that, while those angers and actions were understood regarding the original bill in its original form, the ACLU believed that the legislature and all of its members were entitled to be treated with the respect and the courtesy that they deserved.  The ACLU always, he continued, tried to comport themselves accordingly and always encouraged others to do so.  He stated that he was sorry if anyone had to suffer indignations that were unfairly heaped upon him/her because the issue had inflamed passions throughout the state.

 

Mr. Peck stated that he had an obligation to the thousands of members and supporters of his organization in Nevada and to the constituents they worked with regularly.  He clarified that, while there were some good things in the bill, as civil libertarians relating to due process rights of police officers regardless of what agency they worked for, he remained unequivocally opposed to the bill in its current form.  He urged the Committee to attempt to facilitate some sort of working committee or working group so that the ACLU would be a part of the conversation about various provisions being proposed.

 

As the bill was currently written, A.B. 330 seemed to be a cobbled-together mosaic of brokered provisions that appeared to be the product of good faith negotiations between law enforcement management and police unions.  Those negotiations did not include anyone from the traditional civil rights community, did not include anyone from the plaintiff’s civil rights bar, and did not include any of the people who were involved in the year-long process of working on the drafting of the Citizen Review Board ordinance in southern Nevada; it simply did not include anyone from the general public. 

 

Nevada already had, and it was important for new legislators to understand, one of the very strongest police officers’ “bill of rights” anywhere in the country.  It might even be the most protective “bill of rights” in the country, and it provided police officers accused of wrongdoing with very substantial protections that they absolutely deserved and were entitled to.  The ACLU took those protections very seriously.  They had represented officers throughout the state who were in disputes with their departments.  Currently, the ACLU was representing 15 park police officers in Clark County in a dispute with their department.  The ACLU thought police officers were absolutely entitled to due process rights, entitled to protections, and had no problem with that. 

 

What was proposed in Assembly Bill 330, however, Mr. Peck stated, in some significant regards, not all, he believed would be an unacceptable step toward improperly insulating police officers from effective accountability and would undermine the system of checks and balances that should apply to everyone in government, including the police.  He wished to give one example, although he would be willing, he offered, to go through the bill piece by piece.  He thought that would be best done with all stakeholders sitting down in a cooperative and friendly way, however.  He appreciated the work already done and especially appreciated the position the Las Vegas Metropolitan Police Department had taken on a number of the issues that had come before the Legislature during the current and past sessions.

 

The example referred to by Mr. Peck was that A.B. 330 would, to a considerable extent, take from the courts the ability to decide which aspects of an officer’s file, including elements of that which predated the five-year expunging period, would be relevant in the context of a law suit.  He pointed out that it would allow the police themselves to decide which of those matters may or may not be relevant if there were a civil complainant who had a credible complaint against a police officer who was trying to vindicate his/her rights.  The courts had done a very competent and very fair job of adjudicating those matters in private.  A statutory “blanket” kind of rule that made it even more difficult to access that information was not needed. 

 

The real point was that A.B. 330, as it was currently written, was not in the kind of shape that should lead to its passage.  That did not mean that all parties concerned would not be able to work through the differences.  Mr. Peck believed that it was possible, and he believed they ought to try.  He stated that he did not believe that it was okay for a bill to be passed out of the Committee on Government Affairs that was the product of negotiations only between police management and police unions.  That was not the way the system was supposed to work.  The ACLU would like to participate.  Mr. Peck himself served as Nevada’s citizen representative on the Western Community Policing Board of the United States Justice Department, on the nomination of the Metropolitan Police Department.  The ACLU was capable of working with law enforcement, but there needed to be mutual give and take, and the interests of the general public needed to be part of the mix. 

 

Mr. Peck urged the Committee to please facilitate the creation of a discussion among the various stakeholders that would include representatives from the traditional civil rights community, perhaps Fanny Foreman, the drafter of the Citizen Police Review Board ordinance in southern Nevada, and some others to at least have a discussion to resolve some of the remaining differences.

 

Mr. Peck closed by commending law enforcement for the hard work they had done.  He certainly understood, he said, as he had come out of the labor movement and understood working people who wanted to protect their rights.  He respected and applauded that.  He stated that a balance was necessary, because there were provisions in A.B. 330 that were exceedingly problematic and needed to be sorted through.

 

Again, Mr. Peck affirmed his gratitude to the Chair and to Assemblywoman Chowning for being as courteous, professional, and responsive as they had each been.  He wanted both to understand that the ACLU had never personalized any of the issues, had never been accusatory, and never would be.  For them, the issues were policies and laws, not personalities.

 

Richard Siegel, Ph.D., President of the American Civil Liberties Union of Nevada and professor of Political Science at the University of Nevada, Reno, stated that he associated himself with all that Mr. Peck had said.  He wanted, however, to underscore one basic point.  There had been, in the two major metropolitan areas of the state, an on-going adversarial relationship in part, between police management and police unions, which was very serious.  Mr. Olsen stated in his testimony, according to Dr. Siegel, that he had started out liking only the points about home addresses and photographs.  That was just where Dr. Siegel believed he himself had started out.  He was prepared to say, “Why don’t we just pass that particular law.”

 

Since then Dr. Siegel rethought that.  He accepted that the two law enforcement groups had come together and affirmed that they needed to come together, in his opinion.  But the larger efforts in the state, the larger politics in the state, were between minority communities, which were among the fastest growing minority communities in the entire United States, and the power of the police.  The issues of racial profiling were highlighted by the recent study, the issue of the Civilian Police Review Board was compromised recently, and it was an issue where the county commission and the city governments in Clark County had endorsed certain approaches, and so on.  The people who were there in the room in Clark County [the hearing room for teleconferencing the current hearing] did not have the amendments.  In a sense, the public did not know what was contained in the bill or what was left in the bill.  The Chair interjected that a copy of the amended bill had been faxed to Las Vegas. 

 

Although he did not mean to sound contentious, he was asking that “the train be slow enough that a wide array of people can see what was in the amended bill.”  The Chair again interjected, “This train does not slow down; it had a deadline of April 11, unfortunately.  I don’t know what members of this body voted for the 120-days but I didn’t, but that was what they had.”

 

Dr. Siegel closed by stating that he wanted the members of the Committee to recognize that there were powerful interests, particularly among minority communities, that had been affected by police abuse, by racial profiling, and they wanted to see that the rights of police to be accountable were maintained, that expunging was not something that was happening simply because of the political power of one organized group within the community, that the opportunity to go to court and to have those issues dealt with appropriately,  or to go to the Civilian Review Board to have the issues dealt with there, all of those things were to be taken up in the most appropriate way.  He understood, if he were a police officer, he would want absolutely “all of the due process I could possibly think of,” but there was a “zero-sum game” with the interests of minority communities who did not want to see their due process rights taken away in the equally important issues of police abuse and racial profiling.

 

Mr. Peck reiterated his understanding that the time available to deal with legislation of concern was limited.  He stated he was only asking for a day to meet with representatives of the various agencies and Assemblywoman Chowning, if she so chose, to talk through some of the provisions in the bill.  He stated it might be possible to find common ground very quickly, very readily, without contention.  Again, he thanked the Chair for his responsiveness and the responsible way in which the legislation had been managed. 

 

It was important, however, to note that there were many people who were very concerned about A.B. 330 who clearly did not have, not because anyone maneuvered or manipulated, an opportunity to see the amendments and were not a part of the negotiations process.  That was really the point that needed to be underscored; that was all that was being asked for at the currently time, because there really did need to be a balancing.

 

Kathy Stoneburner, Legal Research Secretary for the Alliance for Workers’ Rights, agreed with and supported the testimony given by the representatives of the ACLU.

 

Chairman Manendo closed the hearing on Assembly Bill 330.  He asked that the proponents of the bill hear the concerns of Mr. Peck and Dr. Siegel.  He directed that the sponsor of the bill be kept informed on the progress made.  He further requested that a compromise be brought to Assemblywoman Chowning and to him to look at.  The Chair requested to have the document to present to the Committee on Government Affairs for the vote, either yea or nay, by Tuesday, April 8 or Wednesday, April 9.  That would give the Committee a little more time and would allow for citizen input.  He thanked the staff for their hard work and apologized to the general public for having to interrupt testimony to attend the Assembly’s Floor session.

 

 

The Chair reminded the Committee that there was a subcommittee meeting at 7:15 a.m. the next morning followed by the Committee hearing scheduled to begin at 8 a.m.  He also informed the Committee members and the public that the hearing would probably end at 10 a.m. or 10:30 a.m.  As he learned more about that, he would talk with everyone in the morning.  Chairman Manendo adjourned the hearing at 1:30 p.m.

 

 

 

 

 

RESPECTFULLY SUBMITTED:

 

 

                                                           

Nancy Haywood

Committee Secretary

 

 

APPROVED BY:

 

 

                                                                                         

Assemblyman Mark Manendo, Chairman

 

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