MINUTES OF THE meeting
of the
ASSEMBLY Committee on Government Affairs
Seventy-Second Session
May 14, 2003
The Committee on Government Affairswas called to order at 8:22 a.m., on Wednesday, May 14, 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.
NOTE: These minutes are compiled in the modified verbatim style. Bracketed material indicates language used to clarify and further describe testimony. Actions of the Committee are presented in the traditional legislative style.
COMMITTEE MEMBERS PRESENT:
Mr. 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:
Mr. Lynn Hettrick, Assemblyman, District No. 39
STAFF MEMBERS PRESENT:
Susan Scholley, Committee Policy Analyst
Eileen O’Grady, Committee Counsel
Nancy Haywood, Committee Secretary
OTHERS PRESENT:
Tonja Brown, Carson City resident
Gary Wolff, Lobbyist, representing Teamsters Local 14, Nevada Highway Patrol
Kathy A. Naumann, Business Agent, Teamsters Local 14
Andrew Kahn, Attorney, representing Teamsters Local 14
Danny Thompson, Executive Secretary/Treasurer, Nevada AFL/CIO
Bob Romer, Senior Employee Representative, State of Nevada Employees Association (SNEA), American Federation of State, County, and Municipal Employees (AFSCME) Local 4041
Richard Siegel, President, American Civil Liberties Union
Michael W. Dyer, Attorney, representing NSEA
James W. Penrose, Attorney, representing NSEA
Joe Furtado, Executive Director, Education Support Employees Association
Debbie Cahill, Director of Government Relations, Nevada State Education Association
Douglas McCain, Nevada State Education Association
Mick Gillins, Nevada Conference of Police and Sheriffs
Ronald P. Dreher, President, Peace Officers Research Association of Nevada
David Kallas, Detective, Executive Director, Las Vegas Police Protective Association
Stephanie Licht, Legislative Consultant, Elko County
David Schumann, Independent American Party
Karen Perdue, Carson City resident
Kent Lauer, Nevada Press Association
Doyle G. Sutton, Nevada State Fire Marshal, Nevada Department of Public Safety
David L. Washington, Fire Chief, Las Vegas Fire and Rescue Services
Ronald L. Lynn, Building Official, Clark County Department of Development Services, Building Division
Jim Madden, Fire Marshal, City of Henderson
Lou Buckley, Carson City Fire Department
Dave Drew, Board of Fire Services
Nicole Lamboley, Legislative Relations Program Manager, City of Reno
Larry S. Farr, Division Chief/Fire Marshal, Community Risk Reduction, Reno Fire Department
Mary Walker, Lobbyist, Carson City, Douglas, and Lyon Counties
Kimberly J. McDonald, Special Projects Analyst and Lobbyist, City of North Las Vegas
Karen Kennard, Executive Director, State of Nevada Emergency Response Commission
Robert Fash, Deputy Fire Marshal, Las Vegas Fire and Rescue Department
Rusty McAllister, Professional Firefighters of Nevada
Chairman Manendo:
Good morning. I am glad everybody is here today. Madam Secretary, would you please call the roll. [Roll called.] Please mark Mr. Collins and Mr. Knecht present upon their arrivals. I am going to go out of order for one person to testify from the public who needs to leave. She will testify on Senate Bill 342.
Senate Bill 342 (1st Reprint): Prohibits false or fraudulent complaints against public officer or employee. (BDR 23-1144)
Tonja Brown, Carson City resident:
Good morning. I am a little nervous so bear with me, please.
Chairman Manendo:
Welcome. This is your Committee on Assembly Government Affairs.
Tonja Brown:
Yes. Senate Bill 342.
Chairman Manendo:
Is your microphone on? Please state your name for the record.
Tonja Brown:
It is now. I am going to read my letter (Exhibit C) that I have written to you as my testimony.
Dear Members of our Nevada State Assembly:
Senate Bill 342 that will reinstate penalties for filing a fraudulent complaint against public officials and employees would be detrimental to many of us who love their freedom such as I do. If this bill passes, I strongly believe it would personally affect me for only doing what I believe is one of my constitutional rights to pursue “Freedom of Speech.”
[Tonja Brown continues to read her letter of opposition for S.B. 342.] On July 15, 2002, I, along with several others, were protesting outside the Carson City District Courthouse for the release of a Grand Jury report that had been previously sealed by a Carson City District Court Judge; then he recused himself. It was then passed to the next judge who did the same. An outside judge, Judge Mark Gibbons, was brought in from Las Vegas, who basically stated the Grand Jury was too harsh and critical of the Carson City public officials. He ordered a revised Grand Jury report, and then he sealed it again. In this Grand Jury report, prior to being sealed, the Grand Jury came down with 33 indictments. One of these indictments was against Assistant Deputy [District Attorney in Carson City] Anne Langer, for coaching witnesses on when to take the Fifth Amendment.
During this time, I had been informed that there might be some information in this sealed Grand Jury report that may be beneficial to a defendant, Rocky Boice, Jr., in his upcoming trial. I am a firm believer that every person has the right to see all of the evidence, whether it is bad or, particularly, if it is favorable to his or her defense, and that always doesn’t happen. That is why I was there with my sign that read, “5,000 people can’t be wrong.” [That was the number of signatures,] 5,433 signatures of registered voters it took to get the Grand Jury impaneled that came down with these indictments.
After about an hour of protesting, I needed to sit down due to a back injury that has left me legally handicapped. I proceeded towards the Courthouse carrying my sign. I was looking for a place outside to sit down. I placed my sign on the bench and sat on it to where nobody could read it. I was instructed by the Courthouse Bailiff to take the sign outside, which I did, and then I came back inside to sit down. All this did was anger him. This was apparent when he got to the main doors of the Courthouse, and he said, “I’m sick of you people.” I followed him outside where he stated, “I’m tired of you people, and I’m tired of this. I’m throwing your sign away.” I proceeded to follow him back inside where the doors to the lobby are. I asked him for my sign back, and he threatened me with trespassing. The next thing I know, I’m being pulled into the lobby where the metal detector is. I’m being physically assaulted by this bailiff, while the other two bailiffs look on. I sustained major documented injuries when I was forced to my knees pleading the whole time with him to stop hurting me. But, he still continued to vent his anger at me. I received a whiplash when I was struck from behind while I was on my knees, which caused me to fly forward hitting my head on the floor, which ultimately screwed up several vertebrae in my neck. I received dozens of bruises and scratches on my body. I have torn tendons behind my shoulder blade, and my rotator cuff and AC are messed up from when he nearly ripped my arm out of its socket. To this day, I am still under a doctor’s care for the injuries I sustained.
[Tonja Brown continues to read her letter of opposition for S.B. 342 aloud.] The Police were called, and statements were given. However, his statement says that he grabbed my wrist. This doesn’t quite match up with my documented injuries. This, you would think, would send up a “red flag” to our district attorney and our judges, but it didn’t. To add insult to injury, Carson City Judge Bill Maddox publicly states in the newspaper, “She got cited, and, I assume, she’ll plead not guilty and can present her side in court, and the bailiffs will present theirs. Tonja Brown said she was unjustly arrested and, in the process, brutalized by a bailiff while she protested at the courthouse Monday. Consider the source, Maddox said of Brown.”
I immediately went to the Sheriff’s Office from the courthouse to file an assault complaint against the bailiff. The Carson City Sheriff’s Office refused to let me make one. The next day I returned, and I was adamant that they accept my complaint as a victim of a crime, so they took my complaint. Several pictures were taken of my injuries and turned over to the District Attorney’s office on July 18, 2002. My complaint was given to Assistant District Attorney Anne Langer, where, as far as I know, it still sits today. I have tried everything from contacting the Mayor to the Attorney General’s Office to get something done on my assault complaint, only to be told that their hands are tied, and they have no jurisdiction over the Carson City District Attorney’s Office. The police said I was assaulted. The Attorney General's Office said I was assaulted; yet nobody from the District Attorney’s Office has done a damn thing about it. I guess if I were paralyzed or killed they might be tempted to have to pursue it.
[Tonya Brown continues to read her letter to the members of the Committee regarding Senate Bill 342.] Now, this leads me to why this Senate Bill 342 that Senator Amodei introduced, will be detrimental to all of us who love our freedom. If this bill passes and becomes law in July, it will personally affect me. You see, I have every intention of filing a complaint against the District Attorney’s Office, if they allow the statute of limitations to run out on my assault complaint against the bailiff. I truly believe that, if I file a complaint against the District Attorney, they will, in turn, use this bill as a way to abuse their power and file charges against me for filing a fraudulent complaint.
That is why this bill must not pass the Assembly. If it does pass, it will affect everyone who cherishes their freedom of speech without fear of retaliation that so many of our loved ones have fought and died for and continue to do to this day. It would be a horrendous mistake on your part, and for Senator Amodei, who is the Senate Chairman of the Judiciary Committee, to support this bill. It is insulting to me, personally.
I have been dealing with Senator Amodei for several years now, trying to get him to put a bill in to change the laws of tampering of evidence from a gross misdemeanor to a felony, with a double enhancement, if a member of the court is involved. Last year, again, I contacted Senator Amodei to see if he had any BDRs left. He said he did, and he would get it in this year, and it would probably pass this session. But he didn’t request it. Instead, he would rather submit this bill, Senate Bill 342, along with other bills, such as S.B. 29, S.B. 30, S.B. 54, S.B. 63, S.C.R. 23 [Senate Concurrent Resolution 23], to name a few, that he finds more important than tampering with evidence, especially in a time when our legislatures are dealing with matters regarding the death penalty and DNA evidence. Senator Amodei, don’t you read the newspaper? Have you completely missed all the articles that have been written about all the innocent people on Death Row who have been released through DNA evidence? Do you find this bill, SB 342, to be more important than someone’s life? That’s a shame, Senator Amodei, if you do. What’s next, Senator Amodei, if this bill passes? Will you put in a bill request next session for those of us who don’t fear retaliation from this Senate Bill 342, or, perhaps they do and won’t put it in writing. Will this new bill then state, “If one continues to complain about our public officials, you will lose the use of your tongue if you continue to use your freedom of speech?” And what should we call this bill, Senator Amodei? Oh! I know. We’ll call it the “Think Before You Speak” bill. So, let me say it in writing while my pen is still a mighty powerful instrument, let it be known, Senator Amodei, that I am no longer one of your constituents. I denounce you as my Senator. You can take this as my formal written complaint! On May 7, 2003, while in the presence of my attorney and several others inside the Legislative Building, when asked of Senator Amodei, “So, do you still think that the tampering of evidence is unimportant?” Senator Amodei reply was, “Yes, I do.” Finally! After all of these years, he gives me an honest answer.
[Ms. Brown completes her testimony.] Again, I would like to reiterate the above-mentioned why this bill should not pass. This bill may be deemed unconstitutional in a higher court if it should go that far. In retrospect, it could become a fiscal impact to the citizens of Nevada.
Chairman Manendo:
Ma’am, thank you for your testimony. Just so you know, this is Senator Hardy’s bill.
Tonja Brown:
Okay. On here, it shows Amodei [referring to a copy of the bill itself.]
Chairman Manendo:
He’s a cosponsor, but the main sponsor of the bill is Senator Hardy.
I am going to close the hearing on Senate Bill 342. Committee, please turn back to the agenda. I am now opening the hearing on A.B. 545. Mr. Hettrick, good morning, and thank you for allowing us to take somebody from the public first, out of order.
Assembly Bill 545: Revises provisions relating to elections conducted to determine which, if any, employee organization represents majority of local government employees in bargaining unit. (BDR 23-1341)
Lynn Hettrick, Assemblyman, District No. 39:
Thank you, Mr. Chairman. [Introduces himself.] And, no problem. We understand that people have travel schedules.
I am here this morning for Assembly Bill 545, an emergency request from me as the Assembly Minority Leader.
[Assemblyman Hettrick continues.] This bill is, in my opinion, and why I brought the bill, an issue of fairness in elections and needs to be, I believe, decided by this Legislature. The elections in the public arena that we all deal with are based on 50 percent plus 1 of those people who vote. That is what this issue is about, whether or not that should be the deciding factor in elections for representation, as well. I think this Legislature needs to make a specific statement as to what we believe the law should be in that regard.
I brought this bill, at the request of the Teamsters and the AFL/CIO, and have representatives here from both of those organizations who will testify to this bill.
Gary Wolff:
What I would really like to do, I see Kathy Naumann has left the Floor; Danny Thompson is there.
Assemblyman Hettrick:
Mr. Chairman, with your permission, I am going to let them come up and testify, because I need to go back to the Assembly Ways and Means Committee. [Mr. Hettrick returns to his own committee.]
Gary Wolff, Lobbyist, Teamsters, Local 14, and Nevada Highway Patrol:
We would like to pass out a handout (Exhibit D), if we could, through the secretary. Mr. Chairman, for the record. [Introduces himself.] To my left is Kathy Naumann, whom you all know from Teamsters 14, and to my far left is Andy Kahn, an attorney who represents a great deal of our business.
The reason these people are here is because Kathy was involved in what actually brought this bill to the surface. I have Mr. Kahn here to answer and to explain to you some of the legal aspects to what past history has done in these types of elections.
I will briefly go over the bill, what the bill says, and then we can get back to a little of the history. Section 1 of the bill, what it simply does, this bill, it affords employee organizations the right to vote and the right to choose their own destiny. No different than any of you as Minority Leader Hettrick said, under the current EMRB [Employee-Management Relations Board] ruling, it says you have to have a majority plus one of the entire body. Unless you had a white ballot, nobody in this body could have been elected under those restrictions.
[Mr. Wolff continues his testimony.] This bill simply, and if you read the bill, and it’s not complicated at all, in Section 1, sets the guidelines as to how the elections are run. So, if you have an employee organization that comes forth and requests representation, and you follow the guidelines established under the NRS (Nevada Revised Statutes) and the NAC (Nevada Administrative Code), it is the majority of those people who vote. Consider, if you run a district of 40,000 registered voters, you would need to have 20,000 plus 1 vote to be elected. This just is not the democratic process. No election in this country is run this way. What this bill does is to outline and give people three choices because we have a right-to-work state, Option A: No union, Option B: The other organization, or Option C: The organization you currently have. If any body fails to get the majority of those who vote, it goes to another election to satisfy the requirements of the law.
Assembly Bill 545 is not retroactive, so it doesn’t affect any current court cases that might be pending. The legislative body certainly has the right to change laws, make laws, and we look at this as a total issue of fairness. Kathy [Naumann] can give you a little bit of history on this.
Kathy Naumann, Business Agent, Teamsters Local 14:
I echo everything that Brother Wolff over here says. For your historical information, I have been an organizer for 35 years now. I have worked in numerous public employee elections across the country, and I have never seen standards in the public employee arena held to this standard. What I also want to say is that I believe we moved this bill as quickly as we could, because the decision came down a week before the Legislature came into session. It became clear to me, upon reading the decision of the Employee-Management Relations Board, which is an agency of the state of Nevada, that, if this kind of decision was coming down and being interpreted from existing statute, that there was something terribly wrong and needed to be fixed in state government.
What really concerns me is that there is a default problem here. Not only are employees held to a standard that is inhuman to come up with 51 percent of a total bargaining unit in bodies for votes, there is also a default factor. If you have two employee organizations and the employer, the employer does not have to show that same standard. Constantly, you have a “free to go” card for the employer which is really in complete contradiction to what the right for employees to organize is all about.
I think this Assembly Bill 545 is very clear. We worked a lot with the Legislative Counsel Bureau (LCB) to draft it in a clean fashion, but what concerns me is that, if this ever happens, it becomes a standard with which all future public employee elections will start to be held. It ripples over into other areas. Democracy is a good thing. Oscar Goodman could not have been elected with these standards.
[Kathy Naumann continues.] I will be happy to give you any answers to questions. I don’t think the issues at hand with what predicated this bill are really necessary, because this issue is about fairness. “Fair” should not be a four-letter word in this situation; it should be “Fair For Employees to Have a Fair Election.”
Andrew Kahn, Attorney, representing the Teamsters Local 14:
[Introduces himself.] While we represent the Teamsters in this matter, we are actually representatives of a lot of other different unions. I can assure you that, in no sector, public or private, or elsewhere in this state or in this country, do you have a system where the nonvoter is treated as having voted “No” against the union, but that’s what the EMRB ruling sets up. It says that, for example, if one-third of the voters stay home, for whatever reason they don’t vote, any union, in order to be certified as representative, has to get 77 percent of the people who do vote in order to be certified. I’m not a mathematician, but, if you do the math, and you leave one third of the people at home, in order to get a majority of the eligible voters, you have to get 77 percent now. That’s a pretty impossible margin.
So what happens? Nonvoters are treated as “No” votes, and the employees end up with no representation. They don’t end up with representation by the Teamsters, or by the Teachers’ Union. This is not an anti-teachers bill; this is a bill for basic fairness on how you conduct an election process, whether the election is run by Teamsters, the teachers, or some other organization.
The courts have dealt with this issue starting with the first Labor Relations Act passed in 1930s. They have unanimously held that the… [The hearing is interrupted to call for assistance with the microphones in the hearing room. The microphones are experiencing repetitious delayed feedback within the room making it difficult to hear the speaker accurately.]
All the case law in this area says that the rules we are suggesting you adopt are the rules that should be followed. The EMRB did not say, as a matter of policy, that it was suggesting a better rule. It said that it felt constrained by its own prior regulation to follow the rules that were adopted in this case. However, this is the first time the EMRB has ever held that the election had to be run with this supermajority requirement in place. This bill would clarify the situation and would make better politics.
Assemblyman Collins:
I just wanted a clarification. Are the speakers from the Teamsters International or just Teamsters International 14? Which local is it, as there are Local 995, Local 14, and Local 631, all in southern Nevada?
Andrew Kahn:
The Teamsters International, along with Teamsters Local 14, strongly supports this legislation.
Kathy Naumann:
Ultimately, Teamsters 14, in southern Nevada, is the local in southern Nevada that has jurisdiction over public employees. The other two locals we have, by agreement, focus on certain jurisdictions and certain characters.
Chairman Manendo:
Could you go over the default factor part again?
Kathy Naumann:
I’ll give you a scenario of two labor organizations and 4,000 employees. There would be three choices on the ballot. The employer would be one; the two labor organizations would be choices two and three. The two labor organizations would be held to a standard that they would need to come up with 2,001 ballots that are cast for them in order to prevail in this election. You could have 1,500 votes received by one union, 1,500 votes received by the second employee organization, and 150 votes for the “no union” choice which, ipso facto, is the employer choice. The employer would prevail.
Gary Wolff:
We have other people who wish to speak. The handout (Exhibit D) we gave to you I want to explain. This was a resolution passed by the entire state AFL/CIO statewide, northern council and southern council, supporting this action. I invite the other people in support of this bill to come up and speak.
Danny L. Thompson, Executive Secretary/Treasurer, Nevada AFL/CIO:
Mr. Wolff pretty much said everything there is to say. This bill has been, by resolution, adopted by every council that I represent in the state of Nevada. This bill should pass. The reason that I think so, as Ms. Naumann laid out, what happened with this issue was that the Board (EMRB) ruled late, and that is why this bill is being sought so late.
Regarding that ruling by the EMRB, if you all had to meet the standard in that ruling, none of you would be sitting in these chairs, because what I do in my other life is working campaigns. What that says is that you would have to get 50 percent, if you were living in a 10,000 registered voter district, you would need 5,001 votes to win. I don’t know of an election in my 23 years working in politics where every single voter came out and voted. If voters are motivated enough to come out and feel strongly about something, then they go out and vote.
[Danny Thompson continues.] The same standard that you all are elected by should apply in these types of situations. That is all Assembly Bill 545 does. That ruling was unfair, and that ruling implicates more than just one particular incident with the teachers and the Teamsters. That affects everything that we do. We believe in this bill, and I’ve been, by resolution, backed up by every council I represent, including all three area councils in the state. We support this bill, and we want to thank the Minority Leader Assemblyman Hettrick for using one of his emergency measures to introduce it. It just happened that way, and we would urge your support.
Assemblyman Collins:
In your job with the AFL/CIO, you represent a whole lot of labor, groups, and issues. I have been a labor member since 1969. I have been in the Laborers, the Teamsters, the IBEW (International Brotherhood of Electrical Workers), not in that order, I should say. Nevada is a right-to-work state, which is a sad thing. That happened in the 1950s. It is sad that the people don’t have a better opportunity to make a living and have benefits in Nevada. There are all of the nonlabor-represented workers in the state of Nevada, all of them non-union shops, all of the opportunity out there. A recent example was the Teamsters 631 nearly losing all truck drivers in southern Nevada. We got down to two companies, and everyone else was nonunion. There was no organization going on. There were concessions made, otherwise, there would not be any union representation for those drivers down there in southern Nevada. I am just using that as one example. Why would we be in a dispute between two labor organizations going after an already represented group? Help me clearly ask the question. Why are we not organizing nonunion members instead of trying to take union members from one trade union to another? This goes on between carpenters, laborers, and operators all the time. Why are we doing that?
Danny Thompson:
I work for the people that I work for. The people I work for had received complaints about issues, and people weren’t happy with things that were going on in their organization. The people who were unhappy sought us out for representation. That’s the way the system works.
To this bill, Mr. Collins, this ruling has more of a profound impact than on just this one particular situation. This ruling, if allowed to stand, will be the standard that we have to meet. I would submit to you that I know how much time you all spend pouring over numbers when you talk about turning out the voters that you have identified who are going to vote for you. If you had to turn out 50 percent plus one of every registered voter in your district, nobody would be here. And, I know the numbers pretty much in everybody’s district. It wouldn’t happen. If you get a turnout of 50 percent, you’ve lost.
[Danny Thompson continues.] It is more important than this issue, and that ruling is more important than one particular situation, because you are right, my job is like running through the raindrops and never getting wet. I appreciate what you are asking me, but there are all sorts of scenarios that you are aware of. This bill speaks to that ruling, and that ruling is going to be around a lot longer than this one particular dispute.
Assemblywoman Koivisto:
What we are talking about is a group represented by a particular union, and some of the members would like to be represented by a different union, they could do this kind of an election?
Danny Thompson:
What we are really talking about is this: In an election for one of these types of organizations, forget the particular dispute because the dispute is the thing that brought this issue to a ruling; the ruling said that, in order to win, you had to have 50 percent of the population, not of those who vote. Once you get to the point where you have an election, you would have to turn out, if there were 8,000 people, you would have to turn out 4,001 people [voting in your favor] in order to be the winner. In your particular campaign, like I said, if you have 10,000 registered voters, under this ruling, if you could not get 5,001 votes, you couldn’t win.
You all know what a vote goal is; a vote goal is something in Politics 101, that everybody strives for, that is half the population plus one. You would need to attain that vote goal every time. I would suggest to you that, given the turnouts that have been terrible lately, in fact some of the percents of turnouts in the last primary were 15 percent, you can’t win. It’s impossible. Why should there be a different standard? If people don’t want to vote for the union, they should show up and vote that they don’t want the union. Or, if they do, they show up and they vote. It should be a majority of the people who show up and vote. That’s all this does. It doesn’t speak, necessarily, to that particular dispute, because that dispute is real, and disputes are always cantankerous. Assembly Bill 545 speaks to this ruling.
Assemblywoman Koivisto:
But, in fact, employees could change from one bargaining unit to a different bargaining unit or union? Is that right?
Danny Thompson:
It happens. Yes. In the case of an EMRB election, and Mr. Kahn should probably come up here, you are not allowed, if you decertify a union, to join another one for a year. I don’t want to convolute this issue, this bill, with that dispute. That is not what this is about. It is not what the people I represent are concerned about. The people I represent are concerned about the fact that this ruling now has set a standard that you all couldn’t meet, and we shouldn’t have to meet it, either.
Chairman Manendo:
Why don’t we have the next three speakers come up to the witness table? These people are speaking in favor of the bill.
Bob Romer, Senior Employee Representative, State of Nevada Employees Association, AFSCME [American Federation of State, County, and Municipal Employees Local 4041]:
I think you have heard all of the testimony here this morning that clearly outlines exactly why this bill is so important. We urge your passage of this bill.
Richard Siegel, President, American Civil Liberties Union (ACLU) of Nevada:
The ACLU, although it has the word “union” in its name, is not a trade union, it’s not a labor organization, but we want to put our backing to this bill, because the present ruling is consistent with the vital concept. There is a concept in national and international law called “freedom of association.” In international law, it is considered one of the most basic of human rights, freedom of association. It means the right to drawing a collective bargaining unit, a trade union, by vote. If you have the kind of ruling that has been presented to you today, you do not have freedom of association. If you have the ability to have a plurality vote, as we do in other such elections, you do have a real opportunity for freedom of association. It is vital that the working people of Nevada, who do not have the benefits or lose benefits, of course because of the right to work law, it is vital that they have freedom of association. Thank you very much.
Chairman Manendo:
You must have gotten caught up in the moment, as you did not sign in.
Richard Siegel:
I did get caught up in the moment. I’m sorry.
Chairman Manendo
It’s okay. Thank you, Sir. Is there anyone else who would like to testify on Assembly Bill 545? Opposition to A.B. 545?
[The following three people introduced themselves as they came to the witness table in opposition to Assembly Bill 545.]
Chairman Manendo:
Thank you for the introductions. Because there are three of you up there, when the secretary transcribes the minutes, it will be difficult to distinguishing who the voices belong to. Please identify yourselves for the record as you speak.
Michael W. Dyer, Attorney, General Counsel for the Nevada State Education Association:
There is some confusion on what is being said today. To start off with, there is confusion in the statement by Mr. Wolff that this bill is not designed to be retroactive to any pending court case. It is. In fact, it is designed to be retroactive in the last section of the bill; specifically, it states that it is retroactive to any case pending before the EMRB as of January 31. The question is whether that bill will be retroactive to the current case being litigated between the ESEA, the Education Support Employees Association, of Clark County School District and Teamsters Local 14. That case is currently in the Eighth Judicial Court and will be proceeding, no doubt, to the Nevada Supreme Court. It is subject to an agreement, a stipulation, by both the Teamsters Local 14 and ESEA, that there will be no further action to have an election in the contested matter until all appeals, including the Nevada Supreme Court appeal, has been concluded. If, in fact, Local 14 is saying that this should not be retroactive to this particular case and that it has no applicability, that is one thing. If not, the bill certainly is confusing on that point.
Second, you are being told that this is a brand new standard that is being created. That’s not true. This standard was created in 1969 by the Nevada Legislature. The bill itself contains, on page 3 of the bill, the current statute, Chapter 288.160 of the Nevada Revised Statutes. Let me do a little background. In 1969, the Nevada State Legislature, as you know, adopted public employee bargaining. It was introduced by Senator Carl Dodge and is often referred to as the Dodge Act. The standard set was for how employee organizations would obtain recognition as the recognized employee bargaining agent for public employee organizations. Under common law, unless there is a state-authorizing act, there is no collective bargaining for state employees.
[Michael Dyer continues.] As most of you may know, the National Labor Relations Act specifically exempts public employees of state and local governments from its coverage. In 1969, in the face of a threatened strike by certain public employees in Las Vegas, the Assembly and the Senate passed a bill that authorized public employee bargaining in the state of Nevada and set the conditions under which that bargaining would occur, and the process that would be followed.
ESEA is not necessarily opposed to the concept of the majority of those voting, but it is being too oversimplified in this particular case. That is only part of the normal standard.
In 1969, the Legislature said, “We don’t have any bargaining locals; we don’t have any locals out there that bargain. If they are going to be recognized to bargain, what standard do they have to meet?” In NRS 288.160, subsections 1 and 2 set forth that standard. The standard is pretty simple. First, you submit a list of three required documents and statements to your local government employer. Then, in subsection 2, it says that if you, at or after the time of submitting those documents, present a verified membership list showing that it represents a majority of the employees in a bargaining unit, you are then entitled to recognition. That is how local government employee organizations that are currently recognized were able to attain that original recognition.
The suggestion that is being made to you now is that there should be a separate standard in obtaining recognition and in taking over a local from an already-recognized employee organization. The reason that is being suggested to you is because, what this bill doesn’t do, it doesn’t include the other portions of the federal and state statutes in other bargaining states, and the three primary federal statutes that specify how an election is to occur between one employee organization and another employee organization.
We have a handout (Exhibit E) that we submitted that is a summary of the 34 states, excluding Nevada, for purposes of comparison, and the 3 primary federal acts, those being the Railway Labor Act, the National Labor Relations Act, and the Federal Labor Management Relations Statute. What our summary shows is that, in all 34 states and under all 3 federal acts, there is a requirement that you first must submit a petition or other request and a requirement that you have to have provided, with that petition or as part of the process, proof to an independent agency that you, indeed, represent a specified percentage of employees in that bargaining unit for which you are seeking an election. Then and only then, are you entitled to have your name placed on the ballot in an election against the recognized employee organization. So the analogy that this election is just like an election when you are running for office is incorrect to the extent that, unless there is a specific as to how one gets his name on a ballot, it is not the same. If you were to seriously consider this process, you need to also consider how one goes about getting one’s name on the ballot.
[Michael Dyer continues.] Under federal statute, it requires that authorization cards, showing 30 percent of the bargaining unit, have signed valid authorization cards, be submitted to the NLRB (National Labor Relations Board) for scrutiny and verification. Once they are scrutinized and verified, then an election can be held. Under the national Railway Labor Act, you are required to submit cards showing that you have 50 percent of the bargaining unit’s employees if you want to have an election between you and the currently recognized organization. Under almost all state statutes, all 34 on the chart require that there be some verification of independent evidence, objective evidence, showing that there is, in fact, a request to have this particular organization, the challenging organization, placed on the ballot against the incumbent organization.
The Nevada statute doesn’t have that in clear language. Instead, the Nevada statute, until this particular current case, the one in litigation right now, has always been interpreted by the EMRB to mean that the challenging organization has to present evidence that, in fact, it represents the majority of the bargaining unit, and, if it indeed presents that evidence to the EMRB, then the EMRB can order an election between the two units.
Historically, the EMRB has never had to rule on the issue of whether or not the actual votes cast had to be 50 percent of those voting, because they have always adhered to the standard that the challenging organization has to have 50 percent plus 1 of the bargaining unit and objective proof, in the form of either cards or, in a recent case, a verified membership list, before they can get on the ballot.
One of the issues that is before the court, in this particular case, is that the EMRB did two things:
[Michael Dyer continues in opposition the A.B. 545.] In the appeal, both sides are appealing. They are cross-appeals, because the ESEA certainly does not agree that there is no standard, that there is no requirement of objective evidence. In fact, in the proceeding before the EMRB, Local 14 refused to provide any objective evidence, refused to provide any cards that it has, and stated that it would not provide any cards that it had until such time as it was recognized.
The other thing that the EMRB did was to say that there would be no requirement at any point in time for Local 14, if it prevailed, to provide a verified membership list showing that it did indeed represent a majority of the employees. But the EMRB said, “We will adhere to our traditional standard that you must have 50 percent of the bargaining unit vote in your favor in order to obtain recognition.
Our point is this. If you are going to take a look at changing the vote count, you need to also take a look at changing the process. If you don’t have a process that assures that before an entity gets its name on a ballot, they indeed have some significant percentage of the bargaining unit employees supporting them, then what you create is a status of constant labor unrest and raids between unions. If I don’t have to have any evidence that I represent a specific percentage of a bargaining unit to get my name on a ballot against an incumbent organization, then all I have to do is say, “We don’t believe that the incumbent organization is supported by a majority, and, since we raised the issue, we should be on the ballot without any evidence showing that we represent any particular number of employees ourselves.” If the standard then becomes 50 percent of those voting, what you may well end up with is a situation where an employee organization with well over 50 percent in actual membership, dues-deducted membership is replaced by an organization that has no evidence whatsoever of membership.
Let me use a hypothetical situation to demonstrate my point. An election is held with no requirement of any verification of membership support by the EMRB independently made as required. Two unions are placed on the ballot. Forty percent of the bargaining unit members vote. Of that 40 percent, 15 percent vote for one employee organization, 5 percent vote for no union, and 20 percent vote for the other. At that point in time, we have an employee organization now being voted into place that the local government employer has to negotiate with without any evidence that they represent anybody, without any evidence that they represent any specific percentage of the bargaining unit, and in which 20 percent of the bargaining unit voted for them to be the bargaining agent. However, there is no evidence that any of those employees had joined that particular organization or, in fact, are members of that organization.
[Michael Dyer continues.] It also opens the door for the next employee organization to come in and have another election. That went okay, so let’s have another one. What we are going to create is a constant source of elections.
The federal statute is well thought out; the other states’ statutes parrot that. Nevada did not parrot that statute. Would we like to see a lower standard for us to obtain the right of representation of public employees? Would ESEA? Yes. In addition, what we would like to see is a standard that says that here is what we must do to obtain the right to be on a ballot to challenge other employee organizations.
That is the fallacy of this bill. It only goes halfway. It tells you, in essence, this is what other states do, and this is what the federal agencies do. That’s true; that is the standard. But, the rest of the story is that there is a process for how you get your name on the ballot, and it requires independent action by the state or federal-local labor board. So, if you are going to establish that standard, you are going to need, in all probability, to add some employees to the EMRB because, as the EMRB members stated, they don’t really believe they have the ability to go through some 4,000 cards that would have been required in this particular election.
I don’t have anything else to add to that. I think that I’ll summarize by saying that our point is that this is far more complicated that is being presented. It is not simply a matter of 50 percent of those voting; it is a question of how does one get on the ballot in the first place. How do we mesh with the requirement established by the Nevada Legislature of 1969 that, in order to be recognized, an employee organization has to have 50 percent of the bargaining unit in the form of a verified membership list?
We would suggest that, if you are going to look at a federal statute to attempt to copy in this situation, that it would be the national Railway Labor Act, because, either you must change the standard in NRS 288.160, subsection 2, which is not done by A.B. 545, or you must adhere to the same standard for initial recognition as for subsequent recognition. You can’t create a situation where it is harder to get initial recognition than it is to take over the bargaining unit. Thank you.
Assemblyman McCleary:
I’m confused on a lot of these issues. I want to ask a couple of questions on this. The employees’ organization that you are representing today was organized in what year?
Michael Dyer:
They were organized before 1969.
Assemblyman McCleary:
So they weren’t organized by the same standards that we are.
Michael Dyer:
The organization was organized before 1969. They were not recognized as a bargaining unit until 1969, because there were no recognized bargaining units until after 1969. Every local government employee bargaining agent in this state is recognized under the standards set forth under NRS 288.160, subsections 1 and 2, including the Nevada State Education Association’s locals throughout the state.
Assemblywoman Weber:
Have you worked with the sponsors of the bill at all since you have a concern about the process? Was that ever proposed to the sponsors to make the bill better, in your opinion?
Michael Dyer:
We have had no contact by or with the sponsors of A.B. 545.
Assemblywoman Weber:
What about an amendment? What you are saying is that the process needs to be shored up. Have you tried to work with them in order to present your viewpoint?
Michael Dyer:
Mr. Chairman and members of the Committee, there has been no discussion between the sponsors and my clients whatsoever in this context.
Assemblyman Collins:
I am a lineman by trade, and you are a lawyer. The way I understand this is by giving you an example. IBEW 396 (International Brotherhood of Electrical Workers) represents the local utilities in southern Nevada. The power company employees bargaining units are at 80 plus percent of the eligible employees; the phone company runs right around 52 or 53 percent membership of those eligible employees. That is surprising, because most of the officers in the local are from the phone company, rather than electrical company. I have been taught that if your union is not doing good enough, you get more involved in it and make it do better. I have been involved in that in different positions. It seems to me, if your bargaining group is representing fewer than 50 percent plus 1 of the employees, an employer can decertify that group.
[Assemblyman Collins continues.] That is what puzzles me about the request in this bill. If, in your case, the support employees get a membership that is under the 50 percent plus 1, then the Clark County School District can file a petition to decertify. Bingo. Now it is an open market. If the Teamsters want to come in or the IBEW wants to, or whoever wants to, they can come in and try to get signature cards signed, have an election, and organize that working group collectively again. That is under current law. If that is the current process, that makes the competition stop doing what it is doing now with two groups trying to represent the same group. I can see where those appeals are going with this ruling.
It seems like it would be easier to get a decertification, and then reorganize with a new trade union, rather than going through this competitive battle. Could you tell me why the school district hasn’t applied for that if the represented members are under 50 percent of the eligible employees? If this bill passed so that everybody could get into the ballgame, I can see 20 percent Teamsters, 5 percent CWA people doing the street lights or traffic controls, and the culinary in the kitchen, and the carpenters doing your repairs, and the painters doing touchups. You would have 15 trades out of the AFL/CIO representing your workers in all kinds of broken-up units versus 1 unit that you represent presently. Can you give me some advantages and disadvantages, and what the world would look like?
Michael Dyer:
I think we communicated well. Regarding the first point, the Clark County School District has never, in this case, sought decertification of ESEA (Education Support Employees Association). The reason is that, as the evidence showed at the EMRB hearing, at the time of the hearing, ESEA had 57 percent dues-paying members within its organization whose dues were being deducted from the payrolls by the Clark County School District. As of today’s date, that number is closer to 60 percent in dues-paying members.
[Michael Dyer continues.] Second, because of the double standard that would be created by this bill, unless you actually go through and either change the initial standard or make the election standard the same as the initial standard, it will be a double standard; it is actually easier to go through the process being proposed under A.B. 545, this bill, to take over another local. If the district were to come in and decertify the local, then the opposing or challenging organization that wants to be recognized must meet those existing standards of NRS 288.160, subsections 1 and 2. That means it must not only submit the three routine documents required, it must also submit a verified membership list showing that it represents, “represents” is a statutory term, a majority of those in the bargaining unit.
Hypothetically, if an employer decertifies an entity, you are correct. It is an open door; it is an open playing field. Any unit that wants to come in and be recognized as the bargaining agent can do so. In order to do that, however, they have to submit the verified membership lists showing that they have 50 percent of the bargaining unit as members. That is a far different standard than showing that 50 percent of those who voted in an election voted for them without having to show any evidence whatsoever at any point in time that they have any membership or support.
What you are being requested to do is to pair up the federal law and the law in other states. We are not saying that is a wrong thing to do. We are saying, however, that you must pair up the federal law and the law in other states regarding how one goes about getting on the ballot and qualifying for the election. Otherwise, you do end up with small units being challenged by other employee organizations who have shown no evidence that they have any particular membership. When that challenge occurs, if that bargaining agent is replaced, next week another local says that it will go file to have an election against the unit that just won because they only got 20 percent of the vote. We don’t have to submit any evidence that we have members or evidence that we have cards; all we have to do is just challenge their status. That’s why, if there is going to be a vote of a majority that controls, then there should be a standard for getting your name on a ballot.
One other thing that is somewhat misleading is this. The current process is that, if there are three parties on the ballot and no party prevails by a majority of the bargaining unit, there is a run-off between the two that were the highest. It is not just one election, and, if not enough people vote because the management splits the other two unions, there is always that run-off election.
Assemblyman Collins:
Does NSEA (Nevada State Education Association) belong to the AFL/CIO?
Michael Dyer:
NSEA has not been allowed to belong to AFL/CIO.
Assemblyman Collins:
Because?
Michael Dyer:
You will have to talk with the parties-that-be about that. It was not NSEA’s choice.
Chairman Manendo:
Among other issues, we have employees who are not members of labor organizations who do not pay for services that are rendered. Assemblywoman Koivisto’s piece of legislation is in response to the issues and problems that we hear from our constituents. Maybe Mrs. Koivisto’s bill could be amended into this one, along with collective bargaining, and a few other things.
Assemblyman Knecht:
Personally, I don’t think the issue is all that complicated. We are making it more complicated than it needs to be. Nobody sitting on this panel had to get any kind of certification with a list of voters in their district to get on the ballot. All they had to do was step up, fill out the forms, pay the $100 to get on the primary ballot, and then they either got the votes or they didn’t.
There are some states, I believe, where you do have to get, or you can get, a list of voters and thereby escape ballot fees. By and large, in order to get on a ballot in Nevada, you don’t need a list of voters to certify you. I guess, to me, it seems like the issue is whether you want to maximize people’s right to vote, or do you want to put impediments in their way to having a vote. It seems to me that this bill would maximize their right to vote, and it would let the majority rule.
Michael Dyer:
If I haven’t made it clear, let me try to do so. We certainly have no objection to making it very easy to organize labor organizations against the public sector in the state of Nevada. The standard that is creating the problem is the one created by Senator Dodge’s act in 1969. That has never been changed by the Legislature, even though there have been bills that have been submitted in an attempt to make it easier, the Legislature has never chosen to make that organization process any easier than it is.
[Michael Dyer continues.] The question is not, in my mind, whether the vote should be 50 percent of those voting. The question is whether you are going to have a process by which there are requirements for you to be on the ballot. Now, if that requirement is simply that a labor organization wishing to challenge another labor organization goes to the EMRB, pays a filing fee, and says I want to have an election so put my name on the ballot, that would be fine. You can do that. But you need to rewrite NRS 288 in order to do it, because NRS 288 doesn’t provide for a process like that right now. The amendment, as being proposed, will not provide for that process, either. It will leave open the question of how a group does get its name on the ballot which, to this point in time, has always been, under all EMRB decisions and required by the EMRB, that the people have evidence of 50 percent of the bargaining unit before having its name placed on the ballot against another bargaining unit.
The issue, to me, is how you go about getting your name on the ballot. That isn’t being addressed by this bill. All other states’ statutes and the federal labor law do provide for that process. That’s what we are pointing out. You can’t simply adopt this bill as is. It would require some significant alteration.
Assemblyman Knecht:
To me, that answer sounded like this. There is something else I would like to do, and because it doesn’t do that, it is, therefore, imperfect, and you should reject it. If we used that standard, then we wouldn’t pass many or any bills out on here. It seems to me that the point is that this is an improvement in its own right, and we should consider that and vote on it on that basis.
Debbie Cahill, Director of Government Relations, Nevada State Education Association:
I did just simply want to comment about the fact that A.B. 545 was introduced very late in the session as an emergency measure. This is Day 101 of the session. We could have been working on this issue throughout the entire session, but this bill appeared very late in the session. You heard Mr. Wolff say that it was not their attempt to try to impact any pending court cases when, in fact, the bill very clearly states that it is intended to have a retroactive action on a pending court case. Due to the lateness of the session and the gravity of the work ahead of you before Day 120, we respectfully ask that you do not take any action on this bill. If the standard needs to be examined and looked at, depending on the outcome of the court case, whatever clarification may come from an opinion by the courts, then we can come back in the next session and deal with this issue. Again, we respectfully ask that you do not process this bill in this session.
Douglas McCain, President, Education Support Employees Association:
I am a 37-year employee of the school district. I have a couple of short things I would like to point out. I think that if people are unhappy, they will vote to oppose what they are unhappy about. If they see something better than what they have, I think people will vote. It is not reasonable to set up a system whereby 100 or 200 people who vote can decide what affects 8,300 people. The system would not be fair. I was trying to respond to a question you asked a while ago.
Assemblyman Knecht:
Let me try to help. I said that, analogizing this matter to elections for people on this Committee, nobody has to get a list of certified voters to get on the ballot. I also said that the question seemed to me to be whether you are going to give voters access to the issues or the representatives, in particular, access to voting for them or not. Are you going to maximize or minimize that access to the ballot box for voters?
Douglas McCain:
I can’t think of a better way to maximize the system than to have the majority of the unit voting as opposed to the minority voting. The one final thing is that this is the way the system works.
Assemblywoman Koivisto:
One of the witnesses said that NSEA and ESEA are not part of the AFL/CIO. Is that correct? Why?
Douglas McCain:
I don’t know why, but that is correct.
Debbie Cahill:
We are not affiliated with the AFL/CIO. We had been in merger discussions at one point, and those merger discussions were halted, not at our request.
Danny Thompson:
I feel I have to respond to some of the things that have been said here. As to the affiliation of the Teachers’ Union with the AFL/CIO, the way it works is that you cannot be affiliated unless your organization is affiliated on a national basis. The NEA (National Education Association) is not a national affiliate of the AFL/CIO. Therefore, the state organization cannot affiliate with us. We were in the process of working out an agreement with NSEA, whereby the teachers could be affiliated with the state organization. That never got to the point that it came to pass. It wasn’t that I did not want them affiliated; that’s what I wanted to clear up. I understand that someone said, while I was out of the room, that I was the one to stop the process. It was because their national organization is not an affiliate nationally, so NSEA couldn’t be either. That’s the only reason that they are not.
Gary Wolff:
We have to clarify something here, because basically I have been called a liar in here. You have been misled. A big smokescreen has been thrown up here. All I have in this building is my credibility to your Committee. I’m sorry if my blood pressure has come up.
This bill is not about everything they are saying. What they are saying is that there was not a huge blood bath, and, it, in fact, happened. I thought we were not going to get into the nuts and bolts of the teachers and us. The fact of the matter is that the Teamsters did follow all of the qualifications that are necessary to put this election forward. Section 3 does say, and I will apologize, when I worked with the drafter, the retroactivity was supposed to be removed. If you will take your pens and scratch that through, it is gone. I do apologize; I didn’t catch it this morning, and I thought it was out of the bill.
Here is what you have to look at. We have a ruling right now, by the local EMRB, that nobody can live with. It’s impossible to live with it. So, if this bill is not processed and is not supported, basically, what you are doing is to hold thousands of employees hostage to a union that they do not want to belong to. They came to us; we didn’t go to them over their complaints. We could be here for hours telling you why they came to the Teamsters. I just want to apologize if I have misled anybody here. It is very nice to speak eloquently and have the law behind you, but all I have is my credibility here, and if I have misled anyone here, I sincerely apologize. I urge you to understand that this bill is not about our fight. It is about a ruling.
Kathy Naumann:
I thought it might be helpful to clarify a few points. I have no desire to dig into the history of this particular case, either, but, I think since the door was opened, the Committee deserves to have the information.
Teamsters Local 14 did not seek to decertify. Teamster Local 14 was attempting to seek recognition with the EMRB. The EMRB, in their confusion about dual members of both organizations, since there was only a 15-day period in July when people could withdraw from ESEA, the incumbent organization, they became so confused that they said it is clear that we have a problem here, as is stated in part of the statutes that you read here, and we need to move forward with an election.
[Kathy Naumann continues her response.] It seems to me that there is a vexing of the school district employee organization about our cards not having been shown. Let me remind you, I have been a “Norma Rae” for 30 years, and when you go in to organize anybody, and as an employee you are fearful of retaliation and harassment, we have an issue. The issue is employer harassment, because of whatever role they take in this process, and we have a question of harassment by the existing incumbent union, until they are extricated by election. What we addressed in this law was to make the simple process of election red, white, and blue, not other colors. Those are the points I think you need to understand about this case. Otherwise, I am not here to second-guess the EMRB. I am here to fix what I believe our government should endorse in terms of a process that is democratic.
Andrew Kahn:
I just want to assure the Committee that EMRB currently has regulations in place and considerable past practice in interpreting the existing law where it says that they don’t go to election unless there is good faith doubt as to majority status. You are not going to have a situation where people are marching in and filing a petition every week for another election in the same unit, and they don’t have any support. Here, the Teamsters had boxes and boxes worth of cards signed by employees authorizing them to represent them and tried to present those to show they had majority status. I imagine the EMRB is going to continue to demand a showing of interest just like the NLRB (National Labor Relations Board) does. There is no reason to try to load this bill down with the very voluminous regulations in case law that exists under the NLRB, which the EMRB has said, in general, it intends to follow. The only time it hasn’t followed it is on this one issue that is addressed by the bill, A.B. 545. Does the majority count or do you have to have a super-majority?
Assemblyman Hardy:
We have heard a late amendment to the lately introduced bill. Are we talking about deleting all of Section 3 from Assembly Bill 545?
Andrew Kahn:
That is correct.
Assemblyman Hardy:
So, Section 3 does not exist any longer in the bill.
Michael Dyer:
I will make a very dangerous statement and say, “It won’t take a minute.” All I want to do is to point out that there were not boxes and boxes of cards introduced in an EMRB hearing. That is the problem. There was no evidence introduced in the EMRB hearing. There was only testimony that such cards existed. The EMRB never required any evidence to be submitted to it.
Joe Furtado, Executive Director, ESEA:
There was a statement that there was a decision that we can’t live with. As Mr. Dyer mentioned earlier, this is not something new. We have been living under this standard for 30 years. In my former life, I did some organizing in the rurals. We had elections in White Pine County and Nye County where we had to get a majority of the bargaining unit to vote in order to have a union, and we succeeded. In many other counties, we got recognized by producing authorization cards signed by a clear majority of the bargaining unit. We presented those cards to the employer and/or to the EMRB. There was no fear of retaliation. It was part of the process. We had been successful all over the state organizing on that regard.
One of the witnesses said this wasn’t about the current dispute. Clearly, it is. It is changing the laws, changing the rules, to make it easier for the Teamsters Local 14 to replace ESEA. By the way, ESEA is not made up of teachers. We represent professional support staff such as classroom aides, secretaries, cooks, bus drivers, mechanics, and others. The reality is that, right now, our membership lists show that we have dues-paying members totaling 5,008, which is 60 percent of the bargaining unit. Over 630 have joined ESEA since August. By people spending their money on us, it shows what the majority organization is. All this bill would do would be to allow a minority in an election to replace a union that over 5,000 employees are members of. We urge you to reject this bill.
Chairman Manendo:
I am going to close the hearing on Assembly Bill 545 and bring it back to the Committee.
Assemblyman Williams:
I want to go back to comments that were made by my colleague from District No. 1, Assemblyman Collins. I reference his comments about the right-to-work in this state and the situation that the working poor face in this state. I want to go back to those comments, Mr. Chairman. I have had the opportunity to work with probably each one of these labor organizations that have testified, both in favor of and against the bill, and to have a very good working relationship that I treasure with each one of them. I think Nevada is a little unique when comparing what other states have done and what other states are doing on the labor front. It is somewhat irrelevant in my viewpoint. I appreciate and try to concentrate on the labor issues in Nevada. In Nevada, we have had very good working relationships with different labor entities, and they have had a good working relationship with us. I think the issue boils down to that point more so than this bill.
[Assemblyman Williams continues his testimony.] I have heard a lot about the new regulation that has been proposed. Our policy staff hasn’t seen that new regulation, and our legal staff has not seen that new regulation that has been discussed. The regulation was discussed in a tone that says there is urgency, and that we need to adhere to this regulation, almost like President Bush’s “No Child Left Behind.” But, we still haven’t even seen this regulation. We have been functioning without it.
Everything that the proponents talked about in reference to the election and the technicalities of how it will be set up and how we will benefit is understandable, and I can agree with the intent. I think there is a larger, overriding issue when it comes to having the cohesiveness and the continuity that we have known from labor in this state for a long time. One of the things that I can appreciate and feel proud about, when I view myself as a Nevadan, is how labor has functioned on behalf of the people in this state in spite of this being a right-to-work state.
I think, since we have operated for this long, Mr. Chairman, under these conditions, I am not opposed to accomplishing what is in Assembly Bill 545, but I think there is a greater accomplishment when it comes to serving people. First of all, we need to see the regulation; secondly, these people need to get together on this and work something out. I feel uncomfortable voting for something when there is such a split among folks who are good people and who have done great things in this state. We need more information. We need to see the regulation.
We need to know if there are deadlines imposed in the regulation or time lines that need to be imposed. We need to know more about the ramifications that were discussed by the opponents, and we need to be assured that, if we support what the proponents want, which I am not opposed to, it needs to be done in a fashion that will not hinder anybody from trying to make the working conditions and the living wages for all people in Nevada something we can be proud of. I don’t think the urgency of voting for this supercedes or overshadows the intent that all of these folks, regardless of what side of the bill they are on, really want. They want better conditions, better wages, and a better sense of pride for working people in Nevada. I think we have a greater opportunity to accomplish that than to decide who’s right or who’s wrong on this bill.
I have no disclosure on this issue and support people on both sides of this issue. I think both sides have valid points. In all due respect, the opponents of the bill indicated that they didn’t really have time to sit down and work something out. For some reason, that wasn’t done. These legislative sessions really are not from February to June; they are actually from mid-May to the first of June. There is still time for the real things to happen. There is still time for the people with the intellect and the folks with the long-standing labor experience and legal experience in this room to get together and work this out.
[Assemblyman Williams continues.] That’s what the people really want. The people don’t want to look to see who won on this issue when they are all on the same team if it wasn’t for this bill. The people want to know what was accomplished to make sure that we all came out winners in Nevada. I think we all still have time to do that. I would suggest that if the Committee gets a chance to see the regulation, and the Committee allows the time for these people to work something out, it will be better for all Nevadans. That is what we should be doing.
Assemblyman Knecht:
As I said to Mr. Dyer, I think this a fairly simple matter; it is a matter of fundamental fairness, and I think A.B. 545, if we pull, as requested by the proponents, Section 3, amend it to exclude Section 3, I think A.B. 545 definitely promotes fundamental fairness. I am happy and ready to move it at any time with that amendment.
Chairman Manendo:
Back to our agenda and Senate Bill 342. The hearing is now open. We have been informed that we need to end at 11:30 a.m., and we have two more bills. I don’t know if we will get to our work session. We have an hour and a half to do a great deal of work.
Senate Bill 342 (1st Reprint): Prohibits false or fraudulent complaints against public officer or employee. (BDR 23-1144)
Mick Gillins, Las Vegas Police Protective Association, Nevada Conference of Police and Sheriffs:
Senator Hardy wanted me to convey that he is currently in a meeting and that he would try to be here as quickly as he possibly could. He wanted us to go ahead and proceed without him at this time.
Before you today is Senate Bill 342, which is a bill that Senator Hardy had proposed at our request. In the 1999 Legislative Session, NRS (Nevada Revised Statutes) 199.325 was passed that made it a misdemeanor to knowingly file a written false complaint against a police officer. Subsequent to that enactment, there was, in our opinion, a misapplication of the intent of that law wherein somebody was charged, and, subsequently, the law was overturned in federal court. Taking the action that was made within that federal court, we have tried to take the concerns as to why that law was struck down and tried to amend it into a form that would make it so that it was consistent. We tried to do it in a way that would make it more constitutional, according to the decision made in that federal court.
[Mick Gillins continues his testimony.] The first thing that we want to convey with regards to this bill is that this bill is in no way an attempt to try to infringe on anybody’s First Amendment rights to speak out and say the things that they feel they need to say. We believe that this is a firm constitutional guarantee, and we do not want to prevent that. However, having said that, we also realize that, currently, we, in law enforcement, are spending a lot of time, because of complaints that are made against individuals, officers in particular, that are frivolous. We are going to have both Dave Kallas and Ron Dreher speaking later with regards to that issue and citing some of the statistics we have to present with regard to that.
We believe this is an issue of fairness. When an officer is out and working on the street, we understand that you are held to a higher standard. We understand that people can say what they want to say about us. What we are asking, though, is that, if, in fact, they do knowingly file a false statement, meaning going to the responsible agency for that employee to file a false written statement, there are consequences for that. Our opponents will talk about a chilling effect; we feel that is nonexistent, and we can show that by statistics with regards to what was previously enacted.
We believe that people should be held accountable, just the same as individuals are accountable for their actions and what they do out on the street. The individuals that they come into contact with should be responsible for their actions in that, if they want to file a complaint, then they need to do so truthfully. That is a standard that we, in America, hold everywhere that we go within our dealings. If someone came before this Committee and wasn’t truthful, there would be a price to pay for that. That should be applicable to everyone, including those people who are in law enforcement and who are out there representing the public and trying to protect them from whatever danger might arise. The issue that we are trying to accomplish here is a sense of fairness. We don’t want to infringe on anyone’s rights. We don’t want to prevent people from coming forward, but we want to make sure that if they do come forward, they are telling the truth, and they aren’t frivolously trying to delay the process or the time of the individual officers or employees that this might be affecting.
Ron Dreher, President, Peace Officers Research Association of Nevada:
[Introduces himself.] I am here to ask that you support Senate Bill 342, as it is written in its first reprint. I thank my brother and sister officers from all over the state of Nevada for joining in this bill, because it is needed.
Senate Bill 342’s genesis, as you heard from Officer Gillins, began in the 2001 Legislature. [The written testimony of Ron Dreher is Exhibit F.] NRS 199.325 made it a misdemeanor for a person to knowingly file a false or fraudulent written complaint or allegation of misconduct against a peace officer. The constitutionality of NRS 199.325 was challenged in the U.S. District Court under a case entitled Eakins v. State of Nevada. I have provided each of you a copy (Exhibit G) of that court’s decision for your review, because it does enlighten and enhance what we are here today about.
On June 25, 2002, the court found that the statute was facially unconstitutional, had a content-based restriction on speech, and granted summary judgment for the plaintiffs. The plaintiffs included the ACLU, because the court allowed them to intervene as a party plaintiff in this case. The court relied on a case called Hamilton v. City of San Bernardino in determining the constitutionality of NRS 199.325. The court concluded that NRS 199.325 comports with the New York Times standard, because it requires false allegations of police misconduct to be made knowingly. That means that they supported our law.
The Supreme Court held that content-based regulations are presumed invalid. In other words, we restricted this to police, and that was wrong. The court held that defamation may be regulated. In other words, it is okay in certain instances, and we all have the right or you do as a legislative body, to regulate the people who defame us, as long as the regulations meet the actual malice standard set forth in another case, New York Times Company v. Sullivan, with knowledge of or reckless disregard for falsity. The plaintiffs, including the ACLU, argued that NRS 199.325 was content-based and that the court upheld that because the statute only “criminalizes defamation which is critical of police officers only, and not other public officials.” S.B. 342 applies this standard to all public officials. As you can see, in Section 2, it does define who and what a public official is.
The court set forth validating grounds for regulating speech such as defamation. Plaintiffs, including the ACLU, raised a content-neutral alternative, which serves to deter individuals from filing false police reports of police misconduct. They argued that the Nevada perjury statutes, NRS 199.120 and NRS 199.145, should be used. That is critical to why we are here today. We already have it. That is what they argued to the court. I have to say that included the ACLU. For those reasons, the court held that NRS 199.325 was unconstitutional.
[Ron Dreher continues his testimony.] Let me emphasize page 6 of the Eakins decision, which all of you have (Exhibit G). I ask that you look at that page, because I have underlined some of it on the right side of the document you have in front of you. They argued to the court that NRS 199.120, which deals with perjury, which is a felony in the state of Nevada, was already in place to deter individuals from filing a false report of police misconduct. I personally agree that a person, out of hatred, spite, who bitterly, knowingly, and maliciously files a false report against a peace officer, should be charged with a felony. However, that is my personal opinion. That is not what Senate Bill 342 suggests.
Senate Bill 342 merely takes what the ACLU and the other plaintiffs argued for, and applies it to all public officials, rather than just peace officers, in NRS 199.325. The penalty remains only a misdemeanor, not the felony that the plaintiffs, including the ACLU, argued for to the court. There is no chilling effect of S.B. 342. There has been no decrease, as you will hear, in reporting police misconduct. A perception that a police officer’s conduct was inappropriate is extremely different than knowingly and maliciously filing a false report of inappropriate police misconduct. A couple of examples:
An officer stops a vehicle for a traffic violation. The citizen complains that the officer’s demeanor was rude and discourteous. Does S.B. 342 apply? No. The citizen’s perception is real. It is not imagined. It will be investigated. There is nothing that person did that was wrong.
When would S.B. 342 apply? When would it become a misdemeanor? When would the citizen be charged under this statute? An example that I will give you, that I included in the paper I gave you, is as follows:
I make an arrest of a person who committed child molestation. In an attempt to get back at me as an individual officer, that person then files a complaint with the Internal Affairs (IA) Division saying that I stole money or that I battered them. Unknown to that individual though, during the interview prior to the arrest of the individual, it was tape-recorded and videotaped. That person still goes to IA to say that, during the interview, Officer Dreher beat me up and stole my money.
[Ron Dreher continues his testimony.] That individual did that so he could put a smokescreen up to change the whole auspices of the entire case and get the heat off of him. That is knowingly and maliciously taking action against me as a police officer. That is wrong, and that is what Senate Bill 342 is about. It is not about all of the other things that I heard said by the lady who spoke early in the hearing this morning. It is a real, knowingly false, malicious, and bitter filing, a hatred filing, of a complaint against a peace officer, and it is long overdue. This is an example of what I told you when S.B. 342 would apply.
Senate Bill 342 repairs NRS 199.325. It will withstand a constitutional challenge, because it has taken into consideration what the plaintiffs, themselves, argued for. The exception is that S.B. 342 does not go to the degree of perjury. The plaintiffs say that we already have the protection we need. You can already go after somebody. You can go after them for perjury. If you look at the original bill, it kind of suggested that. But the Senate saw fit, as did all of us, to say that we don’t want a chilling effect to stop people from doing this. We want them to know, if you are going to do this maliciously, then, yes, there are going to be sanctions taken against you. That’s what this is about. It is not just we as police officers; it is all of us in this office. Any one of you could be subjected to what we are subjected to for merely doing your job. That is what this bill fixes. NRS 199.325 now will encompass all of us, as public officials, and make it a misdemeanor if somebody knowingly and maliciously complains about us and does it wrongly.
Chairman Manendo:
Could you define “complaints”?
Ron Dreher:
A complaint? Yes, I can. It is having a complaint against me for doing something. That is perfectly okay; it is a perception.
Chairman Manendo:
Like what? “I don’t like you as a person.” That’s a complaint?
Ron Dreher:
That could be a complaint.
Chairman Manendo:
And, you want to make that a misdemeanor.
Ron Dreher:
No. I do not want to make that a misdemeanor.
Chairman Manendo:
Would a letter to the editor be a complaint?
Ron Dreher:
It depends on what the letter to the editor addressed, Mr. Chairman.
Chairman Manendo:
I got an e-mail that there was an editorial written, I’m not sure whether it was in Reno, and it referenced a complaint, a letter written to the Mayor, and that letter was considered a “written complaint.”
Ron Dreher:
Are you talking about the case itself?
Chairman Manendo:
I don’t know. I heard something about it, but I just received an e-mail about it. That was considered a written complaint?
Ron Dreher:
Mr. Chairman, the original case that the U.S. District Court looked at says that there is no question about the facts of the case. What we are arguing was the constitutionality of it. That is what the whole thing was about. There was no question as to the facts. I assume that is what you are talking about. It comes down to the fact that the court found it unconstitutional, and we needed to know why. It wasn’t because we had the law in place, as you read in the court case. It was because it didn’t apply to everyone. That was the chief reason why they found this law unconstitutional. It is my understanding that the California Supreme Court just upheld a very similar law, similar to what we had. It was overridden and constitutionally challenged.
Mick Gillins:
Maybe I can answer that question. I think what you are making reference to is the inappropriately-applied interpretation of NRS 199.325, which occurred with a letter that was sent wherein a person made a complaint that eventually led to that letter writer being charged with having violated NRS 199.325, filing a false complaint. If you go back and check the record, the intent of the law at that time was never for it to be applied in that way. I think we can all agree that it was misapplied in the way it was approached with regards to that situation.
That is why we are here today. We aren’t asking for an infringement on people’s rights, the First Amendment rights to write letters, to complain about situations, to complain about individuals, that is certainly, we believe, a significant constitutional right that shouldn’t be impinged upon. We are, however, saying that, if you make false statements maliciously, there is a price to be paid for doing so. When you go to the store, you may see something that we all want to have, but, in this society, you have to pay for it to get it. There is accountability for what you get. If you make false statements maliciously, then there should be accountability for that. That is what we are asking for with Senate Bill 342.
Chairman Manendo:
I don’t know if it was a letter to the editor or an editorial.
Mick Gillins:
I believe it was a letter sent to the Mayor.
Assemblyman Knecht:
Isn’t it, in fact, the case that the terms “willfully, knowingly, and maliciously” are finding-of-fact terms in which the law deals all the time, and triers of fact are regularly required to apply? This bill does not introduce a new, legal concept or standard in that regard, does it?
David Kallas, Executive Director, Las Vegas Police Protective Association:
I agree with Assemblyman Knecht’s assessment of that. That is correct. We are not trying to reinvent the wheel here. What I think people fail to see is that, just because someone may come in and file a false complaint or allegation of misconduct against any public officer, that doesn’t automatically rubberstamp a system in which a misdemeanor complaint would be filed against that individual.
First of all, there must be enough evidence to prove that the person knowingly, maliciously, and falsely filed a complaint. Even if the police departments or any of the organizations chose to file a complaint against that individual, that would still have to be assessed by either a district attorney’s office or a city attorney’s office, depending upon the jurisdiction, as to whether there was enough probable cause to prove the case beyond a reasonable doubt.
Assemblyman Knecht:
Thank you for that answer. Mr. Chairman, just one other thing. The First Amendment right to free speech, which I regard as very precious and very important, is not absolute. There are any number of appropriate, legally enforceable constitutional restrictions on free speech from libel laws, through time, place, and manner restrictions, and others. There is a whole jurisprudence on that, because speech has consequences, and we have to balance those consequences. Just to stand up and say that anything that anyone wants to say or pursue in the way of an action should be allowed under the rubric of free speech is fundamentally wrong. It is subject to reasonable and constitutional restrictions, and I thank you, Mr. Chairman.
Mick Gillins:
What we were trying to accomplish by using the language, with regards to what is inside of Section 1, was to establish a standard high enough that we didn’t wind up getting any kind of comment or any kind of statement or any kind of complaint being used. We wanted to set the standard high enough that we were only looking at those situations where somebody is seriously and maliciously going after an individual with the type of complaint that they are making. I could make an example.
Our intent with what we are trying to accomplish with this would be the individual who, perhaps, was taken to jail. He’s placed in front of the door waiting to be taken up the elevator. The officer gets over to his vehicle to retrieve some of the items that the person had in his possession at the time he was arrested. The person looks around, and smacks his head into the bars causing a two-inch gash in his head. Immediately, that person starts accusing the officer by asking, “Why did you do this? Why did you do this?” As soon as that person gets out of jail, he goes to file a written complaint with Internal Affairs against the officer for this malicious act.
Unbeknownst to the individual involved, there was an independent witness and a videotape of the incident that clearly showed that this was an act done by this person in an effort to maliciously slander or attack the officer. This is the type of situation that we are trying to address; we are not trying to address a situation where an individual has the perception of unfair treatment. This is about someone who maliciously, knowingly, and willfully makes a false statement and accusation of that nature.
Assemblyman Williams:
I want to go back to Mr. Knecht’s statement in reference to the bill not reinventing the wheel and that the protections sought under this bill already exist. One question I would pose, then, is why do we need the bill? If the person can go in and willfully, hatefully, maliciously, and knowingly file a complaint against an officer, and someone has the information to prove that it was done in this manner, then the person has recourse through a number of different ways. It depends on where the complaint was filed, whether it is in court or what have you. If we really know, by proof, that a person has done this filing maliciously, for the wrong reasons, there is already recourse in place for a person to go and seek recourse. Why do we need it?
[Assemblyman Williams continues.] More importantly, I am both a public officer and a public employee. I still would be leery of what is in this bill, as it is a little scary. Although there are persons who slam their own heads against the bars and receive a gash and use that knowingly against a police officer, quite frankly, there are people, in some cases, who do get their heads slammed against the bars and gashed, and the action is done by a police officer. We already know that. Do we feel comfortable putting both of those scenarios in this bill? If a police officer knowingly, maliciously, and willfully arrests someone, charges someone with something that they know the person didn’t do, can we put that language in the bill, too, so that it applies in both situations?
If you feel so strongly about protecting the integrity of a public officer, and I am one of them, then we also should be as forcefully and as strongly committed to protect people who are done wrong on the other side as well. If we can amend this bill to do that, to give the public the same opportunity, when a police officer willfully, knowingly falsifies a report, and it happens, as we have documented proof that it happens, and maliciously files a complaint or files an act against a person that didn’t happen, or it was proved that the person later did not do it, then the bill should also address those scenarios as well. Are we willing to place in the bill a misdemeanor charge for those on the other side, against the public officers and employees, if we do the wrong thing and do something maliciously, can we put this in the bill? I would gladly sponsor that amendment.
David Kallas:
Addressing your concerns about an individual who has been arrested and has excessive force used against him or has a false complaint, a false arrest basically, made by a police officer, there are already protections for those individuals. First of all, that individual can go to Internal Affairs and file a complaint against that officer. That officer would then be investigated and, potentially, could receive some punitive action by the department. Second, that individual could go to the city attorney or the district attorney, depending in whose jurisdiction the incident took place, and file a complaint. Third, they could also go to a federal agency and file a civil rights violation. They have all of those protections in place right now for just the circumstances you discussed.
The reason we are here in front of you today is that officers don’t have those protections. In 1985, there was a Supreme Court case here in the state of Nevada that said that two police officers brought a complaint against an individual who filed a false complaint against them. The court ruled that, as public officers, they weren’t entitled to seek damages against that individual. That is why we are here. That is why we were in front of you in 1999, and the Legislature, in their infinite wisdom, agreed with us that this law needed to be imposed. It was.
[David Kallas continues.] We aren’t here asking for any special privileges. The most important qualities that police officers can have or any public officers can have are their integrity and their ethics. When an individual comes in and maliciously, knowingly, falsely, and willfully files a complaint against that person, whether that complaint is proven or not, that will always bring into question the integrity and ethics of that officer. If that officer’s integrity and ethics are questioned, then he is going to have a tough time doing his job, because every time he takes the stand and swears on the Bible that he will tell the truth, somebody is going to bring up that situation, even if he was exonerated, or the situation was unfounded or was not sustained. Whichever result comes out of that, it will still bring an individual’s integrity and ethics into question.
All we are saying is, if we are going to be held accountable by the standards to which we are held, the higher standards than those of others, for those people who file a complaint and sign on the dotted line, and you know that if it is done maliciously and falsely, they will be held accountable.
We are not trying to impede or deter anybody from filing a complaint. As a matter of fact, we welcome it. The last thing we, as officers, want to see are other officers out there having a reflection on the rest of us. If they are out there using excessive force or falsifying complaints, we don’t want them in the police department any more than you do, because they are a bad reflection on the rest of us who are trying to do our jobs in the way we were taught.
My answer to your question is that there are already those protections in place for those individuals; there are no protections in place for any public officer or peace officer in the state of Nevada at the current time. That’s why we are asking you to approve this change in the law that was implemented in 1999, to afford those protections.
Assemblyman Williams:
I appreciate that answer. I guess it now goes back to the Chairman’s question of defining a complaint. I went to one of those deprived schools, but I did learn that you don’t define a word by using the word in a sentence. We didn’t get a definition of “complaint.” What is really the definition of a “complaint?”
For instance, last night I was driving from Target. There was an officer, as I was driving back, sitting in the parking lot of the Dairy Queen where the classic cars meet. He is there with his lights off. I noticed him when I passed. As I passed him, I looked in my rearview mirror. When you live in certain communities and you have a certain ethnicity, you tend to notice certain things. When I see a police officer, unlike other people who see one and say, “Oh, I’m very safe right now,” as with people in my neighborhood, I say, “Oh, I may not be safe right now.” As I drove past and looked in my rearview mirror, sure enough, the officer pulls in behind me with his lights off. We are on Carson Street, and it is about 10 o’clock last night. With law enforcement here, you would know who is on duty, or it’s easy to find out.
[Assemblyman Williams continues.] As I drove down the street, the officer followed me. In many cases, if you are African-American, if you are going somewhere and a police officer comes up behind you, you tend to turn and go somewhere else that you never intended to go. You may turn and go into a supermarket or a store just to show that you are not really about to do anything. I am changing my current travels because this officer is there. It is a shame that you have to do that, but that is the mental situation that you face.
I turned on Fifth Street, made a right on Fifth Street, as I am a legislator with legislator plates on my car, and thought I would be okay if I turned in to the Legislative Building. I turned into the garage, and there was an SUV (sport utility vehicle) right there. I couldn’t go down into the garage itself like I wanted to in order to stop being followed. I stopped and turned around right before the garage; the police officer turned on Fifth Street behind me, made a U-turn, and parked behind the garage with his lights off. I came back out. I guess he assumed or hoped I didn’t see him. I went back to Fifth Street, made a right turn on Carson Street, and he pulled out with his lights off, and followed me all the way down to Robinson Street. I made a right on Robison, in that area. He was still following me with his lights off. I pulled over and was going to say, “Look, what is the problem? You have been following me, and it is not a good thing. I had a good time at Target; now I am wondering why you are following me.” I was going to pull over and ask.
Now that he realized that I had seen him, he speeded up past me. So, if there was a problem, or if I had violated one of the driving laws, then that was a perfect time to tell me what I did wrong. I pulled over, purposely, to know. I have been around a long time and didn’t lose any sleep over it. It was just a little disturbing. I did not wake up this morning to go to the police station to file a complaint. Had I been disturbed enough to file a complaint, surely I would have been asked, when I walked through the door, “What is your complaint? What did the officer do to you that made you come in here wanting to file a complaint?”
[Mr. Williams continues.] It is pretty hard to define. Was it harassment? Was it racial profiling? Did someone just rob a bank that fit my description? What complaint should I file if that disturbed me? I could have filed a complaint this morning, the officer could have said that he was just doing his job, and that “I knew that he knew I was following him, so what he has done is to come down here this morning and, willfully, because he didn’t like what I did, filed a complaint against me.”
I could be charged, under this law, with a misdemeanor for filing a complaint, if the officer argued. I would have to go, here again, to Internal Affairs. When Internal Affairs takes over, it is like “Romeo and Juliet.” I am going to the police station to ask them to investigate a complaint against one of their own. It is like me going over to one of my colleagues’ houses, knocking on the door, and saying that his kid beat up my kid. The guy will say that he is going to go back to his family, we will have a family meeting, and we will decide if we did you wrong.
That is the same thing that happens when you go to Internal Affairs. My complaint could be viewed as harassment to a police officer for doing his job. I could be cited for willfully complaining, knowing that the police officer wasn’t really pursuing me, but, if he really had a problem with me, he should have talked to me when I pulled over. I gave him the opportunity, because I knew that, sooner or later, he was going to stop me before I got home. My complaint could be viewed as against the police officer, wasting his time, and we still haven’t defined “complaint.” Many people like me decide not to file a complaint because of things like Internal Affairs and the way the system is set up.
This bill would lean more toward discouraging people, as the first lady [Tonja Brown] testified here this morning. It would discourage the right of freedom of speech, the right to file for due process. I think that, if anybody willfully, knowingly, and maliciously files any complaint against any side of anywhere, and we can prove that, everybody has recourse.
Everyone has recourse in some way. You can sue for slander; you can sue in any number of ways. You can go to court when you believe that someone has done you wrong. All those things are already in place, so why do we now need to put Senate Bill 342 into effect to discourage more people?
Finally, I will support it and vote for it, if we can place into the bill the same opportunities for the citizens who may get falsely accused or arrested by police officers. You can’t have it both ways. When there was a racial profiling bill placed in the Legislature, the same people who are proposing this bill were opposing that one. Why not make it equal for both sides? Let’s make this bill one that makes it a crime, even if it was a felony. I would even amend the bill to move the consequence up to the felony level to file a false complaint against a public officer. By the same token, make it a felony for police officers who knowingly and willfully arrest someone, detain someone, and harass someone for a crime she or he did not commit. If we are willing to do that, let’s move forward and get an amendment.
David Kallas:
There are already protections in place. If an individual feels that she or he was the victim of some police misconduct and goes to a federal agency, charges a civil rights violation, then that individual could be charged with a felony and could be placed in prison under federal guidelines. Depending on the circumstances, as I said earlier, the district attorney or the city attorney certainly could address those issues from a criminal aspect. The department certainly would address them from an internal aspect. Those protections are not in place right now for any police officer or public official. That is what we are asking for. We are really comparing “apples and oranges” here.
In 1999, when opponents of this legislation came forward to speak against it, they kept speaking about the term “chilling effect.” Quite frankly, I am not quite sure what the definition of that is. I can tell you that those in law enforcement, whether police officers, corrections officers, or other public officials, are supposed to deal in facts. I will tell you some facts.
After 1999, a survey was done by the Las Vegas Metropolitan Police Department’s Internal Affairs Division (IAD). With all due respect, I firmly believe that they scrutinize officers more so than most citizens would. As I said earlier, the last thing any other officer wants to have is another “bad apple” sitting beside him, because it reflects negatively on him or her. From April 2000 to May 2001, the department received over 3,000 complaints from citizens about the conduct of different officers and employees of that department. Since that time, Internal Affairs has increased three times the size it was before that law was implemented in 1999. Those facts certainly do not show that there has been any deterrence to complaints being filed by citizens who believe they have been the subject of acts of misconduct by any officer or employee of a law enforcement agency.
On the other side of that coin are the facts about how many of the misconduct complaints actually have a basis. In the same period, April 2000 to May 2001, 11 percent of those 3,000 complaints were sustained. That means that the allegations made by the individuals were found to have substance. Those individual officers or employees received some sort of punitive action. That means that 89 percent of the complaints received were not sustained, because they couldn’t prove or disprove that the allegations had substance, or that they were unfounded, because there was no validity to the allegations, or the actual actions of the officers or employees took place but were lawful under policy and under the law. Those officers and/or employees were exonerated.
[David Kallas continues.] Even if you take for granted that, in some of those cases, because someone didn’t have independent confirmation of the allegations, the officer may have really committed those acts of misconduct, but they couldn’t be proved, you could say that maybe 20 percent of the cases show that there was misconduct by the officer or employee involved. That would mean that we are spending 80 percent of our time investigating complaints or allegations of misconduct against employees of our department that have no basis. The increased manpower would be better used on the streets. That isn’t, however, what we are here for, because that is part of our jobs. We are supposed to be accountable. If the decision is to increase people in IAD to account for the amount of complaints coming in, fine, but, the facts speak for themselves.
If that law was implemented in 1999, as it was, and everybody who appeared here to oppose it said it would keep people from coming down and filing complaints, the facts show that is not the case. The facts show that people will still file complaints if they believe that officers and employees of law enforcement agencies are engaged in acts of misconduct. I ask this Committee to look at the facts. Make your decisions based on those facts just like we do. Someone who comes before you cannot sit in front of this microphone and make a statement that they know is false. They could be arrested because of it. We are asking you for the same protections.
Assemblyman Williams:
Now, we are moving into the area of documentation. I would not, for one instant, sit here and say I don’t believe that, of all the complaints that were filed by citizens, many of them were found undocumented or unproven. I would submit that I really believe that it happened. I appreciate the time that is lost by manpower hours of police officers and the police staff investigating these complaints only to find out that they are not true. It is a waste of police hours and police time. But, on the other hand, we also know that many cases are dismissed, because there is no proof that it happened.
Think about how much time is wasted by those who sit in prison for years, and, later, it is found out that the person did not commit the crime. Think about how much manpower is wasted with those people who have been found to be innocent of crimes they didn’t commit. There were citizens and police officers who took the stand in the courts, courts had convicted the suspects, and the crimes weren’t committed by those suspects after all. Many of those police officers took the stand and testified in some of those cases, knowingly and willfully testified, when they knew that the person was innocent of that crime. These people are spending 5, 10, or 20 years in prison for crimes they did not commit. Think about how they feel as well.
[Assemblyman Williams continues.] Nevada is one of the states that does not have legislation that has a monetary fund to repay people who have been in prison for crimes they didn’t commit, to reimburse those who were clearly found, based on DNA, not to have done the crimes. We should be looking at, and maybe we could do it in this bill, establishing a fund to pay people, to compensate for crimes that the state has done by incarcerating people for crimes they didn’t commit. We should be compensating those people as well. Restitution, Mr. Chairman, should be done financially. In many cases, not even an apology is given to people who have been falsely accused and imprisoned. Those people are imprisoned, in many cases, not through mistaken identity but through false information willfully given by law enforcement officers on the stand in a court of law telling a judge and a jury that a person did the crime when the person did not.
We should be as vigilant as we are in protecting public officers as myself. I surely don’t want anybody filing a false complaint against me as a public officer, but I think that people still have the right, and we should encourage people to exercise that right, to come forward to file a complaint when they feel that they have been wronged. We put so many things in place that deter people that they are afraid to come in and file a complaint. I think this bill goes back in that direction. The bill has enough work and substance, however, to amend it to cover both sides of the issue. I think that, if the people who are proposing this would be amenable to it, I think we have enough time to get with staff to look at some possible amendments to make this work for everybody on both sides of the aisle.
Assemblyman Knecht:
There are any number of things that have been said here. But, going back a little way, my words were misunderstood or misrepresented, and I am not looking for restitution; I just want to clarify the record on them.
I did not say that the protections afforded by Senate Bill 342 are already in law, and, therefore, this bill is unnecessary. I didn’t say that at all. I just said that the concepts and terms such as “knowingly, willfully, and maliciously” are not new in the law. In particular, S.B. 342 deals with the term “knowingly.” I brought that up because the earlier witness [Tonja Brown], who spoke before we heard Assembly Bill 545, went to the question of “knowingly, willfully, and maliciously” as if, somehow, that were a new, unusual, and novel idea in the law. It is not. That was my only point, and I just wanted to clarify that. I do support this bill, because I think it is necessary, and it is not already covered and taken account of in the law. The terms and concepts on which it operates are not new in and of themselves.
Ron Dreher:
I would like to speak to Assemblyman Williams just to answer a couple of his questions. I don’t believe that you are probably the only one in the United States that went through what you went through last night. Having driven across the United States several times, any small town that you go through at night, including in Nevada, chances are that you will find a police officer somewhere parked along the side of the road. Specifically, I am thinking of Tonopah. You will be followed through the town. There is nothing wrong in going in the next day and complaining. That is your perception of going into the station thinking you have been harmed. That is perfectly legitimate, and you have every right in the world to do that. What makes that malicious, though, is when you take the incident and say, “You know, I know that officer in that car, and I am going to pick him out because I don’t like what he did to me specifically.” That is malicious. That is a big difference between you believing that you are being followed because of your ethnicity or whatever.
To answer another one of your questions, because you brought it up a couple of times, I would welcome the perjury hearing in a heartbeat. I am saying that for me personally. I don’t want to amend the bill. In the Nevada Revised Statutes, there is a statute called “Acting under the Color of Authority.” If I do that to you, and it is maliciously done, I am guilty of a felony right now. Detective Kallas said it a minute ago. There are penalties in place for us right now. There are penalties in place for all of you right now, if you do something maliciously. There are not, by the same token, when it is the other way. There are not penalties when someone maliciously does something to us.
You have a civil rights complaint right now if I do something wrong to you. Even if the courts in Nevada find me innocent, the federal government will convict me, as they have done, for example, in the Rodney King case. That is a beautiful example of courts, locally, finding officers not guilty, and the federal courts putting those officers away for years.
The penalties for us have existed and still exist, and we welcome those penalties, because we do not want officers in our department who maliciously and knowingly attack people. We will work hard to see that those officers go. I spent the majority of the last 20 years of my time, when I was not a police officer, representing police officers in discipline-discharge cases. I do that to this day. I hear the complaints. Detective Kallas listed for you a series of 3,000 complaints taken. Right now, if you file a complaint against anyone in the police department, the complaint will be taken, there will be an investigation, and we will determine, at that point, what the outcome is. Usually, it does not go to the benefit of the officer. It goes to the benefit of the citizen. What saves us, and why most of us carry pocket tape recorders, is then we have those tape recordings of the incident. When people knowingly allege that we have done things falsely, that tape recorder is what sustains or exonerates the officer. Having been on both sides of those fences, I have seen that, and we represent people in that regard.
[Ron Dreher continues.] Specifically, to address your concerns, we have laws, local laws, state laws, and federal laws that attack us right now. To amend the bill would do nothing to the sanctions already imposed on us for doing that to you. All it does is say that it is our turn to do something, when someone maliciously and knowingly comes after us. There is a penalty. It’s not a big penalty; it is a misdemeanor.
Chairman Manendo:
I think, no matter what, Mr. Williams, if we move forward, we definitely need to have a definition of what a complaint is. It is too broad right now, and we need to clearly define what exactly it is. Does it include letters to the editor, rumors, et cetera?
Assemblyman Williams:
I know that the Committee is strapped for time. This is my last comment. Mr. Dreher brought up that officers carry tape recorders. There were students in Tonopah or somewhere in Nevada who stole a school bus about a year ago. They took the school bus across state lines. All of the reports I heard on television were from the officers who said that they were able to solve this case so quickly, and we have so much evidence against the perpetrators of the crime, because the officers, when the bus was being pursued, videotaped the bus with cameras in the police cars. Police officers and police departments in Nevada need to have cameras in all of the cars. That would eliminate a lot of the complaints, by officers and by citizens. The cameras would have the information right there on tape.
There are shows on television that use those camera recordings. On all of the shows that I have watched, it is the police department officers who come in during commercial breaks to talk about how they were able to solve the crimes and catch people so fast, even when the suspects get away and the police apprehend them so fast, because of the cameras. These cameras have been so adamantly opposed, at least by the Las Vegas Metropolitan Police Department, because of the costs. I would vote for any bond issue for police, any type of legislation, or even introduce legislation and beg my roommate, Mr. Arberry, to pass it, to fund putting cameras in police cars. That would eliminate a lot of the things that are going on.
[Assemblyman Williams continues.] You mentioned the Rodney King case. That case is one that is an exception, and it turned out the way it did because there was a camera. It was videotaped. Incidents between police officers and individuals on the street, whether the officer complains that they were abused or whether citizens complain, the cameras would tell the story.
For all of us concerned about misconduct by citizens and by police, much would be solved if there were cameras in the cars. Police officers’ associations opposed the concept of having cameras in police cars, but, if they were there, they would protect the officers and the citizens.
When you mentioned that most police officers carry tape recorders, I didn’t know that, and I bet most folks in the public didn’t know that. It is good; it is out on the Internet now so that folks will know that officers have these little cassette recorders in their pockets, so people will probably start carrying their camcorders in their cars as well. But, we will get a long way if we can also put a little resolution clause in this bill to suggest cameras in police cars. I know that would help in Carson City.
Mick Gillins:
With regards to what Mr. Williams is stating about video cameras, video cameras are very good and useful tools. However, they don’t move from the vehicle out to where, generally, the officers are contacting the public. The only time that they are very worthwhile is during traffic stops, which is really a minority of the incidents worked by the officers. That is why there is so much opposition.
It just is not as effective as it could be. It is not like you have a camera crew running along with you like on “Cops.” I think they are trying to look at how to spend the best buck that they can and get the best production that they can. Right now, with technology the way it is, you are only really able to videotape traffic stops. It is not as productive as it should be.
To answer the other part with regards to Chairman Manendo’s issue with the word “complaint.” I believe that “complaint” is a word that is defined in legal terms. However, I believe that the definition that we are looking at, with regards to this, is a person who brings an issue, regardless of what that issue may be, whether it is an issue of misconduct, an issue of misperformance, whatever it may be, to the attention of another. That is what a complaint would be.
I think it is important to note, too, with regards to what we are trying to accomplish in this bill, that these are only the issues taken to the responsible agency. If you are going to make a complaint against a Metro officer, or if you are going to make a complaint against a state employee, you are going to take that complaint to the appropriate agency. Otherwise, it is not a complaint under the terms of this law that would be in effect. We are trying to eliminate as much of the frivolous stuff as we possibly can by narrowing the focus of what is allowable, and what is not allowable.
Assemblyman Collins:
There are 13 lines on this bill. It sure created a lot of discussion, a lot of information, and a lot of things shared. Since we have been discussing personal issues so much, I would like to share with the Committee. As a public official, a public employee part-time, I recall when an ethics complaint was filed against me as a legislator, which some legislators have gone through over the course of their careers. It wasn’t done right after the session ended, and it wasn’t done after the bill I allegedly voted improperly on became effective in law; it was 11 months to 13 months after the session had ended, just prior to the primary election.
It was basically done in an attempt to hamper my reelection. Some of the accusations made against me and against the Ethics Commission, when we had that hearing and thousands of dollars were spent by me, were made by a person who was a “gadfly,” an irresponsible person who made accusations, including accusations against the Ethics Commission, that should have resulted in him being locked up. Because the Ethics Commission, like a legislator or a police officer, has to live by a different standard, because we put ourselves out in the public, the chances of prosecuting that individual for anything more than calling the members bad names, would have been a waste of time by everybody. We recognized that.
These kinds of things should allow us, whether we are legislators or police officers, to have some kind of protection and recourse versus having it on our records that you have had a complaint filed against you, and, so, you must be a bad person. I think that is what has been said here for an hour and a half. Police officers think they have had bad things said of them, they have been accused of doing bad things, inappropriate actions or allegations have been made against them, and that they deserve some kind of recourse or explanation, just as we would want as legislators. I don’t have a problem with this bill at all. It is not a bad bill.
Assemblyman Hardy:
I have a simple question. A person who knowingly files a false or fraudulent written complaint, we are referred to NRS 281, is that word “files” referenced in the statutes to mean that “files” refers to the department to which the person belongs that you have addressed, or is that “files” a more generic term so that the complaint could be filed anywhere? Does that pertain just to the department of the officer or the public official that has a level of supervision?
David Kallas:
Our intent is that “files” would have to be with the agency of record. We are not looking to file complaints or file criminal charges against an individual who sends a letter to the editor or sits in a hallway someplace and tells people that he got stopped this morning by these cops and that they were rude and obnoxious. The idea is that, if that individual goes to the agency that oversees that employee, files a written complaint with that agency that actually has jurisdiction over that employee, and knows that the complaint has been filed maliciously or falsely, there is recourse. The recourse is through the system of checks and balances. Even if the agency suspects that the complaint was filed maliciously and falsely, they still have to get input from a district attorney or city attorney who says that they do or don’t have enough evidence that the complaint was filed maliciously or falsely.
Assemblyman Hardy:
How many of those complaints that we heard about, 11 percent were valid enough to discipline the public officer, were termed malicious or false? Do you have the statistics on that as well?
David Kallas:
No. I don’t have the statistics on those as to how many were filed maliciously or falsely. We know, in our department during that time period, there were 11 percent that were sustained for some sort of misconduct, and punitive action was taken against the responsible parties. I believe that the national average is 11 to 13 percent. What the context of those particular cases was I couldn’t speak to. I do know that the individuals who filed those complaints, if there was maliciousness behind the officer’s actions, that those people did have recourse either through state courts, local courts, or federal courts. Not only was restitution possible, so was conviction for a crime up to and including a felony.
Assemblyman Hardy:
Is it because there are so few false, malicious claims that we don’t know how many of those there are? It seems to me those would stand out. We would recognize those. Eleven percent had validity and led to discipline. How many, gut-wise, guess-wise, would be maliciously or falsely given?
David Kallas:
I would not be able to give you that information. That would have to come from the agency itself when they release those statistics for that period of time from 2000 to 2001. That was not included as to what the context of each and every case was. We could say, realistically, that there are probably more than 11 percent of those cases filed where there may have been acts of misconduct by the officers, but there may have not been enough evidence to prove that. The case or complaint would then be sustained. Still, we are not talking about any more than 20 percent of the complaints filed. That means that 80 percent of the complaints are shown not to be valid. What the context is of every complaint by the individual who makes a complaint against an officer or employee, we don’t know.
Assemblyman Hardy:
The second word that I have a question about is “written” as in “files a false or fraudulently written complaint.” If a person has a video or puts on an e-mail attachment that is a video or gets on television or is in the newspaper, to make the complaint, those don’t count in this bill?
David Kallas:
We are talking about the people who actually come to Internal Affairs, people who come to the agency. We are not talking about the people who go to the press and say that they were abused last night and were a victim of excessive force and have a video that shows that, but then don’t go to Internal Affairs. If there is a video, it is very unlikely that it is going to be false.
Assemblyman Hardy:
I was addressing the issue of someone taking a video of him saying slanderous things. Unless it is in print, written, this doesn’t address that issue.
David Kallas:
I believe the operative word is “written,” files a false written complaint alleging an act of misconduct.
Assemblyman Hardy:
This would be limited to that written complaint.
David Kallas:
That is what we are talking about.
Gary Wolff, representing the Nevada Highway Patrol Association:
The association goes on record as supporting the bill.
Stephanie Licht, private citizen:
I am testifying on behalf of myself today. As the widow of a Los Angeles Sheriff’s Officer, though this situation did not happen to me, I would like to speak on behalf of some of the wives, children, sisters, and other family members who may have been affected by something like this. It is very difficult to express the fact outside of the statement, “No man is an island.” Every person in a family is affected when a false accusation is made.
Chairman Manendo:
I will close the hearing on Senate Bill 342 for testimony in support of the bill. The Chair will now hear from the opposition.
David Schumann, Independent American Party:
As Senate Bill 342 is written, this bill would include all of you. That would be a direct violation of the First Amendment. It says, “As used in this section, ‘public employee’ means a person who performs public duties for compensation paid by the State, a county, city or local government or other political subdivision of the State or an agency thereof.”
If you are going to include yourselves in this, you have to put a change in the fiscal note so that it is clear that there is an effect on local government and an effect on state government. What your opponents say about you in a campaign, in a written newspaper advertisement, I can give you an example. There is A.B. 281 with a section in it that says, “The legislature hereby finds and declares that the tax imposed in this chapter on a business entity must not be construed as a tax on the customers of the business entity but as a tax that is imposed upon it collectible from the business entity which constitutes part of the operating overhead thereof.” That is a repeal of the laws of economics. I would be very quick, if I was running against anyone who voted for A.B. 281, to put an ad in the newspaper that said, “My opponent voted to repeal the laws of economics in line with what the Soviet Politburo did for 70 years, and that is his understanding of the laws of economics.”
Similarly, there are various Senators, one of whom is a cosponsor of this bill, who made the rash statement that we don’t have substandard education in America. I’m sorry, but the Organization for Economic Cooperation and Development says, on page 3 of its 1994 economic survey, that we do. The U.S. Department of Education, in its Pursuit of Excellence in Chapter 3, says performance of United States physics and advanced mathematics students was among the lowest of the 16 countries that took part in the TIMSS (Trends in International Mathematics and Science Study).
[David Schumann continues his testimony opposing S.B. 342.] I would buy an ad that says that my opponent has a very weak understanding of the real world of economics. That is malicious. The intent is to get him unelected. You need to put the money in there, because I am going to sandbag this evidence until the trial, when you come after me for a felony or whatever, then I will present this, and I’ll win, and I’ll get big bucks.
You must put an amendment in here that elected officials are exempt, because political speech is the highest form of speech that is protected by the First Amendment. While this bill is fine for policemen, it is not fine for you. You will be a walking target to drain money out of the treasury of the state. Mr. Collins didn’t like it that people may say “un-nice” things about him, but that is one of the things that the United States Constitution specifically protects. We can go around saying “un-nice” things about legislators, elected officials of all kinds. So, you can’t be mixing elected public officials with civil servants.
Assemblyman Knecht:
Mr. Schumann, I think that you may have overlooked a key phrase here. It says, “Files a false or fraudulent written complaint or allegation of misconduct.” Regardless of your opinion of your opponent’s understanding of economics, you would first have to actually file a complaint, it would have to be found to be false, and you would have had to “knowingly” file a false one. Your opinion, I can assure you, of your opponent’s knowledge of economics, is not the sort of thing that any court would find to be a knowingly false or fraudulent written complaint.
While I understand what you are saying, we do have a problem with a little statute on the books right now that Assemblyman Beers is fighting, the so called “truth in political advertisings” statute. I think it is more than a stretch to say that this would reach your rebuttal in the paper or anywhere else or your claims concerning your opponent in a political campaign; I can’t see it. I would like to give you the opportunity to respond to that.
David Schumann:
Sir, there is nowhere in this bill, that was the intent of the sponsors, that this be filed with the agency. When you read the 16 lines of this bill, it doesn’t say that. It says, “A written complaint or allegation.” A newspaper advertisement in a paper of general circulation is a written allegation. I am alleging this malicious thing. Unless you are taking that language up, just saying “file it” could mean that I filed it with the newspaper with the intent that they publish this. It doesn’t say anywhere in the bill, specifically, that it be with the agency. He said that was his intent, but I searched and searched through those 16 lines and didn’t see a word of that, sir.
Richard Siegel, President, American Civil Liberties Union of Nevada:
I want to apologize to the Chair, because I was overanxious in terms of a response.
Chairman Manendo:
I know, it is a heated issue.
Richard Siegel:
Comments were made at the beginning of the hearing about what the ACLU put into its lawsuit that it won. I have written testimony (Exhibit H) for you, but I want to make several points in a very emphatic way.
First of all, we won the Eakins case with a summary judgment. That means that the federal judge did not feel that it was necessary to hear the Attorney General’s Office of Nevada fully, because the result was so obvious. If this law is passed, we will go back to Judge Hagen. Judge Hagen will give us another summary judgment against the state, and he will also put it in a much more heated way. Why will he do that? Essentially, it is not because of the equal protection argument, which has been mentioned. You have the case, and I think it is on page 11, of the judge’s decision. The judge was not disagreeing with you, necessarily, that it is a bad thing to file a false complaint. We can all agree that it is a bad thing to file a false complaint. What he was saying was that the Ninth Circuit has already said this, when you file a false complaint, particularly against a policeman because that was the case on point in the Ninth Circuit before this, when you do this, you do have a chilling effect, a negative effect, a restraining effect, on people‘s tendency to make complaints.
I am going to quote Judge Hagen, who should be the one making the complaint today about the testimony that has been made right now. I quote (Exhibit G, page 11), “Defendant [the defendant is the Nevada Attorney General] argues that because the statute requires that the speaker know the statement is false, and whether the statement is false is not merely a subjective determination, the statute is not a vehicle for official impressions or ideas.”
Judge Hagen is writing here (Exhibit G, page 11) that the Nevada Attorney General says, “Because we have made this a case of a false statement, this is not official suppression of ideas.” Obviously, you and I all know that we cannot have official suppression of ideas.
[Richard Siegel continues.] This is the key sentence from Judge Hagen (Exhibit G, page 11), “However it is nonetheless realistic to conclude that the statute (NRS 199.325) might have the effect of deterring legitimate complaints against peace officers.” That was the statement that Assemblyman Williams has already made. It is anticipated it will have that effect, and it is on that basis, primarily, that Judge Hagen said that this act is unconstitutional, null, and void. He will say the same thing if you pass this law (Senate Bill 342).
Judge Hagen dealt with other issues. He dealt with equal protection, and he dealt with those other issues. He dealt with the issue of perjury. I don’t know what would happen if the state of Nevada used its perjury felony criminal statute with the same facts. I don’t know what would happen, but I do know that the language in S.B. 342 will result, without any question, in the same decision with the same summary judgment. The state will expend money from the Attorney General’s Office, the ACLU will collect its attorney fees in the amount of, I would estimate, $30,000 to $40,000, and we will be back where we are this very moment.
It is pointless, and it is clear from this testimony. The police have suggested adding third grade teachers, professors like me, assemblymen like you, to everybody who cannot be complained about. The fundamental idea is that public officials are subject to complaints. There is no absolutely objective way to know when a complaint is false. Yes, a complaint is found not to have a sufficient basis. Only 11 percent may be sustained by the police department, but it is on a subjective basis, and it is because it is subjective. Terms like malicious and false are subjective, ultimately. I could not prove that I knew it was false, not just that it was false, but I knew it was false. That’s almost impossible to prove. The only thing it will do, it won’t get anybody convicted, is to get me less likely to make a complaint.
It was an assemblyman like you who was threatened by the Las Vegas Metro Police for filing a complaint when there was an alleged police beating in front of her apartment before her very eyes. It was Kathy Von Tobel; she made her complaint, police threatened her with a misdemeanor conviction. In the Eakins case, the gentleman wrote to the Mayor of Reno and said he didn’t like something the police did. The Mayor turned it over to the police, and he was threatened with a conviction. In another case, an editor of a newspaper in Elko County wrote an editorial complaining about a police official. He was sent before the Ethics Commission for that. None of these things have been considered appropriate action, only inappropriate action. There has never been an appropriate use of this bill. Never, never. There has never been one that was sustained.
Chairman Manendo:
In a case where someone filed a complaint, and assuming S.B. 342 became statute, that person would be guilty of a misdemeanor if the complaint was found to be false, and the person who had the complaint filed against him wanted to challenge that, they would go to a court. A person who files a false or fraudulent written complaint or allegation, if I did that against one of my colleagues, and my colleague didn’t agree, that person’s recourse would be the courts, because it was a misdemeanor, and they wanted to challenge the complaint. What is your opinion on that as far as you seeing a lot of court cases appearing because of that?
Richard Siegel:
This is almost entirely handled in civil law under the “defamation” statutes. We have that. We also have, in the New York Times Company v. Sullivan case, such a high standard for a public official, if you are deemed a public official, as you and I would be. A teacher who would be defamed would have a legitimate shot at a defamation suit, because they are not public figures. The key term is “public figure” in the New York Times case.
The teacher is not a public figure; you are a public figure, and I am a public figure. I have almost no chance to win a defamation civil suit because I have to prove it is malicious, knowing, and false. It is extraordinarily difficult to prove all of that. Occasionally it is done, but it is extraordinarily difficult. A third grade teacher and, probably, an ordinary police officer, would have a better chance to go into civil court and try to win a case on defamation, because they are not public figures. I am a public figure, you are a public figure, but they are not public figures, because they do not normally enter the public domain in a way that makes it legitimate for them to be open prey. All of you and I have to accept that we have walked into the kitchen, and we have to take the heat. The police officer, the third grade teacher, when they get a complaint, can go into court and file a civil defamation case. They have a chance to win.
The Ninth Circuit says that we have that law, the perjury law. If you want to try to use this law, it can be expected, in their view, to deter complaints; therefore, it is a violation of the First Amendment, the highest level of First Amendment speech, political speech. Remember the First Amendment. It says the “right to petition against your government.” That is what you are prohibiting in S.B. 342, the right to petition against your government.
Assemblyman Collins:
I am just correcting some testimony given by Mr. Schumann while I was out of the room. I don’t have a problem with name-calling. That’s that “names can’t break my bones, or stick and stones do” or something. I know how it works. I’m paraphrasing because of the amount of time. The point is that I was accused of voting for a bill that would benefit me personally, when, in fact, by voting for the bill, it put my business at risk. That was the determination, in two minutes, of the Ethics Commission, before they adjourned the meeting, because of the frivolous nature of the complaint. I just wanted to make that very clear. I don’t care what you call me but don’t accuse me of doing something incorrectly.
David Schumann:
Mr. Chairman, I want to separate that out. He is an assemblyman, and, unfair as it may be, people have the right to say untrue things about elected officials. That is just the way it is.
Chairman Manendo:
It happens all of the time.
Karen Perdue, private citizen:
I am the wife of a retired police officer. While I can appreciate the problems that the police officers noted, who testified here today, and the problems they have with false complaints filed against them, this bill is not the answer. I am here today to ask you to vote against Senate Bill 342. Obviously, none of us wants persons to file false reports, but this bill would dissuade persons from reporting wrongdoings and crimes committed by public officers or employees. One of the officers did state that the intent of the existing law, pertaining only to the police officers, was inappropriately applied in the Eakins case. I have heard testimony about it having been inappropriately applied in other cases as well.
I am here to tell you that, if this law passes, it will continue to be inappropriately applied. The law, as it is today, applies just to police officers. What we would be doing is expanding it to cover public officials and public employees. We are only going to make a bigger problem. The intent may not be, if this bill passes forward, that it is used inappropriately, but I guarantee you, through my own personal experience, it will be used inappropriately. I do agree that it is an assault on a citizen’s ability to redress his government.
This is not the way to solve the problems that the police and public officials have with false complaints. Liable laws already exist in the statutes. We do not need a law that will make public officials and employees a protected sect of our society to avoid scrutiny by citizens. Perhaps you feel that you or the officers do, but this bill is not the way to do it. Particularly in the case of elected officials, and I am looking at elected officials here, this bill is particularly obnoxious when dealing with elected officials. Every citizen should be free to complain about the performance of an elected official if it does not fall within the definition of liable or defamation.
[Karen Perdue continues.] As an example, this will probably be called a caustic type of speech but it is a well-protected area of speech, I could complain that a district attorney is a weakling when prosecuting domestic violence cases. I could say that he or she puts a lot of effort into prosecuting minor crimes while ignoring major crimes and criminals. I could give many scenarios like that. Would you seriously consider criminalizing this type of complaint? It already happened to Mr. Eakins. He felt he was mistreated by the police. He sent a letter to his Mayor. The Mayor, in turn, turned it over to the police department. I am sure he felt that it would be taken care of appropriately. What happened to him is that he ended up in jail for 14 hours.
If this proposed law is passed, it will be abused, and it has the real potential to turn law-abiding citizens into criminals. It could be abused in the hands of revengeful public employees or public officials. It will leave citizens at their mercy. There is an obvious conflict of interest giving the person you are complaining about the power to arrest you. There was some discussion of who will receive the complaint when it’s actually considered a complaint. One of the officers said that it would go to that particular entity of the person you are complaining about. I’m not confident that will happen. It is not specific enough within the law, and it is not specific enough as to what constitutes a complaint.
I believe that there will be a substantial fiscal impact upon the state and cities of Nevada if this bill passes. It will open the door to civil rights violations. It is going to cost money. It is going to cost the cities, and it is going to cost the state.
I believe that we should encourage complaints. Complaints may amount to nothing more than a difference of opinion, or they may reveal a big problem that can be solved by way of the complaint. The private sector relies heavily upon feedback from its customers. The public sector, that being public officials and employees, should not dissuade law-abiding citizens in filing a complaint in any fashion. It is too open as to who is going to decide, maybe it is in a court of law, whether it was willful or false. In the meantime, the potential exists for being arrested or having even worse things happen until it goes into court. You will have a possible misdemeanor arrest on your record.
Chairman Manendo:
We need to wrap up, because I think there are other people who also want to speak.
Karen Perdue:
Again, I am asking that you not pass this bill. Really, it is going to make public employees and officials a protected class beyond which the private citizen enjoys.
[Karen Perdue submitted copies of news articles from the April 29, 2003, and April 30, 2003, editions of the Nevada Appeal, Exhibit I. She also provided a copy of “Statutes in opposition to S.B. 342,” Exhibit J.]
Mick Gillins:
May I offer a definition or an amendment to the bill with regards to “complaint?"
Chairman Manendo:
I will get back to you after the opposition has finished.
Kent Lauer, Executive Director, Nevada Press Association:
This bill does run counter to the First Amendment. The reason it does is that it has the potential of “chilling” legitimate complaints about government officials through intimidation. Some people may hesitate to file a legitimate complaint if they are told they could be thrown in jail and could face a misdemeanor charge if their complaint is false and made maliciously. Those with complaints might just back off and rethink about whether they really do want to file the complaint. That is the “chilling” effect.
I would urge you to support the First Amendment rights of Nevadans to criticize government conduct. The state of Nevada must encourage, not discourage, people to take an active role in their government.
Assemblyman Knecht:
Mr. Lauer, you used the phrase that the bill “has the potential to discourage.” As we all know from dealing with these matters of law, a lot of things have a lot of potential in various people’s minds. My understanding of the First Amendment jurisprudence here is that the courts will, in fact, not look at this so much as a facial matter when someone claims “it has the potential,” but how it is applied. It is not clear to me at all that someone’s allegation that “it has the potential to discourage” would make it in any way unconstitutional in a court of law.
Mick Gillins:
With regards to amending Section 1, we would submit Paragraph 3 as a definition of “complaint.” The amendment would read, “As used in this section a complaint means an allegation of misconduct made to an employer and designed to initiate an internal investigation.” That clearly defines what we are talking about with regards to a complaint, what type of investigation it is, and that the issue is misconduct. That would narrow the focus as to the intent of this issue.
In response to Assemblyman Williams’ issue with regards to going both ways about the issue, we feel that we are already held accountable, and we have absolutely no problem with continuing to be held accountable. If he wants to amend the bill to reflect that, we have absolutely no issue with that whatsoever.
Chairman Manendo:
Seeing no one else who wishes to speak on Senate Bill 342, the hearing on S.B. 342 is now closed. The bill is now back with the Committee.
We will take a one-minute recess.
Committee, come back to order. I am opening the hearing on Senate Bill 458.
Senate Bill 458 (1st Reprint): Makes various changes to provisions governing State Fire Marshal and fire prevention. (BDR 42-515)
Doyle Sutton, State of Nevada Fire Marshal:
I will give you some history on Senate Bill 458, and how we have gotten to where we are. About a year and a half ago, the Governor had put into place, with the Board of Fire Services, a committee to study the Fire Marshal’s Office and the fire services in the state of Nevada. The committee made recommendations. Out of the recommendations came a very simple and clean rewrite of NRS Chapter 477. As I found out here this morning, as the two previous bills were discussed, nothing is simple, and nothing is easy. I don’t think this one is going to be any better. This was supposed to be a rewrite of NRS Chapter 477 to clean up the language.
On May 5, I testified in opposition to Senate Bill 118, which was a bill that would adopt some language that would restrict the authority for the enforcement of the regulations in counties with populations over 100,000 or in a consolidated municipality. The reason I opposed that was that local jurisdictions already have the power to adopt fire or building codes that are more stringent than the Fire Marshal’s Office. Basically, we opposed S.B. 118, and I think it died in Committee.
Now what has happened is that Senate Bill 118 has been amended under Amendment 320 and placed into our S.B. 458. With that being said, I have to oppose this bill, even though I am the one who started this process. I can’t support this bill with Amendment 320 on it. I ask that it either be amended back to its original intent, or that the bill die. I know that there are a lot of people who have a lot of testimony. I know that there are a couple of agencies that have amendments to this bill. This will not be easy or simple.
Assemblyman Grady:
I, too, have been receiving numerous e-mails from the rural departments. Maybe we can get out of this rather quickly if we “IP” (Indefinitely Postpone) the bill right now.
Chairman Manendo:
I know that there are people in Las Vegas who have been here since 8 o’clock this morning. We apologize. Is there anyone in Las Vegas testifying in support of the bill?
David L. Washington, Fire Chief, Las Vegas Fire and Rescue Services:
At my side is Bob Fash, Deputy Fire Marshal, and Chief Local Officer with our department. With Senate Bill 458 we have no particular issue. However, we have a problem with the Amendment 320. For the record, I will paraphrase it, rather than going through a four-page document (Exhibit K) that I have already turned in for you.
Basically, we would oppose the changes, because they would have tremendous effect on what we feel would be more stringent requirements than currently stated in the State Fire Marshal’s regulations under NAC 744.280, Adoption and effect of local requirements; enforcement of model codes. What that does for us is to give us a pretty strict set of codes to adopt and operate within a fashion that we feel will be better for the citizens who reside here in Las Vegas, as well as for our visitors.
Under the proposed changes in S. B. 458, as a result of 320, it would change and would allow different levels of protection to occur in this jurisdiction, in the Las Vegas southern valley. We just have issues with that. [Mr. Washington then reads from Exhibit K.]
The Clark County Building Department has recently adopted the International Building Code (IBC) 2000 Edition. The City of Henderson plans to do the same in the very near future. In its current state, the IBC is significantly less stringent that the Uniform Building Code (UBC), which is currently the state standard.
The Uniform Building Code is what the current Fire Marshal operates with now. The state of Nevada currently uses the Uniform Building Code, 1997 Edition. That standard is good for us. [Mr. Washington continues to quote Exhibit K.]
In order for the county to adopt the IBC and meet the minimum state requirements, they have to address a number of deficiencies to the IBC by adding 85 amendments. The following are just a few examples of deficiencies that have had to be amended.
Smoke control provisions: Currently, high-rise buildings in the state of Nevada must have smoke control systems built in. These include smoke evacuation systems that are integrated with fire and water flow alarms. Their purpose is to begin removing toxic gases from the building in the early stages of a fire. The IBC does not require high-rise buildings to have these systems in place. Without this amendment, the chances of fire casualties would increase significantly in the even of a high-rise structure fire.
There are a number of other examples of things we have issues with. Rather than go through them all, because of time, I would just like to say that our position is, again, we have no problem with the bill; our problems are with the amendments and we have significant problems with them based upon our inability to conduct the kind of business as we feel we should as professionals in the fire service business in the Las Vegas Valley. I have Mr. Fash to answer any technical questions that may come from you and your Committee.
Chairman Manendo:
[Speaking to Mr. Fash] Sir, did you wish to offer testimony before we ask any questions? [Mr. Fash indicated he did not with a negative shake of his head.] We don’t have any questions here in Carson City, but there are more people who want to testify who are at the witness table, so you might want to listen in.
Ronald L. Lynn, Building Official, Department of Development Services, Clark County, representing Nevada Organization of Building Officials and Clark County:
Clark County supports the amendments and supports this bill. You will hear other amendments today that I think will remove the effects on the rural jurisdictions. Briefly, I have passed out a testimony (Exhibit L), and I want to refer to some of the points and address some other issues.
Recently, the first reprint of S.B. 458 was passed by the Senate and is now before the Assembly Government Affairs Committee for consideration. The bill clarifies the relationship between the State Fire Marshal and local fire and building departments by resolving the contradiction that exists right now between Nevada Revised Statutes (NRS) 244 and 278 and the Nevada Administrative Code (NAC) 477.
NRS Sections 244.3675 and 278.580 authorize counties to adopt building codes regulating the design, construction, maintenance, and safety of buildings, structures, and property within the county. However, NRS 477.030 somewhat confuses this authority by requiring counties to enforce the Fire Marshal codes and regulations regarding “safety, access, means and adequacy of exit in case of fire . . .” Then, this section limits fire marshal authority by exempting counties with populations above 50,000 from its regulations, stating, “The regulations of the State Fire Marshal apply throughout the state, but, . . . his authority to enforce them or conduct investigations under this chapter does not extend to a county whose population is 50,000 or more or which has been converted into a consolidated municipality.
Adding fuel to this confusion, and effectively reversing the above exception, the NAC section 477.281 attempts to supersede and subordinate the NRS chapters 244 and 278 to 477 by requiring where there is a conflict between NAC Chapter 477 and any code, ordinance or regulation by a local authority, the more stringent requirement providing the greatest safety from fire and for life to the public applies. (Underlining added) This NAC section has been interpreted as placing the state fire marshal as the arbitrator of which construction codes local jurisdictions may adopt.
Unfortunately, this interpretation has the effect of denying larger jurisdictions the benefit of their profession fire, life safety, and construction expertise from adopting and enforcing the most current construction codes that best protect the public in their specific environments.
I won’t read the rest. The bottom line is that, in Clark County, in the Development Services, we have 398 employees. We have, in the building area alone some 250 employees. We have over 400 national/international certifications. We can match against any building or professional department in the United States today. We have three fire protection engineers. We are able to analyze structures as to their performance and not to the prescriptive requirements of the code. What Chief Washington brought up is very true. There is no doubt about it. The IBC, as a document, and I would further say that the UBC, as a document, are deficient in some areas, and we did many, many pages of amendments for both of them. I concur with those amendments. We need to have safe structures. There is no question at all.
There is never going to be a model code, in the United States, which we are going to be able to adopt right off the shelf. No disagreement. But, we need to have one that we can effectuate on a local level. Talk about people mentioning the MGM Grand. I was the only person involved, and most of the people’s testimony had to do with the reconstruction of the MGM Grand. I was there to investigate the Hilton fire, which was also a tragic loss. Clark County Development Services addressed those issues in the context of our local codes, in state regulations for retrofit, and, finally, even in national codes. As was probably mentioned earlier, and I think was submitted by the city, there were some changes in some of the other national model codes, which we opposed. When we oppose a change, we keep refining it to our rules and regulations.
With all due consideration of the State Fire Marshal, to be able to look at the performance aspects, rather than the prescriptive nomenclature of any standard code, would not allow us to build the structures that we currently do in Clark County. You could not have a Luxor, you could not have a Mandalay Bay, and you could not have these types of structures, which used the most current state-of-the-art materials. We review these materials on a constant level.
Chairman Manendo:
Did you testify in the Senate?
Ron Lynn:
Yes, I did.
Chairman Manendo:
How did Senate Bill 118 get into S.B. 458? [Mr. Lynn indicates that he doesn’t know.] So, this amendment enjoys wide support from the AGC (Associated General Contractors of America), the Homebuilders, Southern Nevada Homebuilders, contractors, developers, International Code Council (ICC), construction trade unions, and Clark County Fire Chief, as well as local building officials?
Ron Lynn:
That is correct. They expect me to do the talking.
Jim Madden, Fire Marshal, City of Henderson:
I am speaking in support of Senate Bill 458, including the amendment that came from Senate Bill 118. I am talking about Section 3, Paragraph 11, on page 5. We support anything that would allow jurisdictions in Clark County to adopt whatever building and fire codes that they believe necessary for their communities.
Currently, there are two model code groups that develop and publish building and fire codes, the International Codes Council, commonly referred to as ICC, and the National Fire Protection Association, commonly referred to as NFPA. Both have excellent building and fire codes. We believe that it should be a choice, in the more urban jurisdictions, to adopt the codes that they feel best meet their needs.
Having said that, I would also like to go on record that, should paragraph 11 be deleted, we are still in support of Senate Bill 458. We feel that this bill, and the fire service has been working on this bill for a long time trying to make these revisions to the State Fire Marshal’s regulations, if approved, will foster more interlocal governmental agreements between the local fire departments and the State Fire Marshal’s Office. It will help reduce duplicated services in the urban areas where local fire marshals and local fire departments are both doing plan checks and inspections for the same facilities. This will also free up valuable services in the State Fire Marshal’s Office so that they can concentrate more on the rural areas where their services are desperately needed. This bill also provides for a fire prevention person to be placed on the Nevada State Board of Fire Services, which we feel is a good thing.
We do have one amendment that we feel is a friendly amendment (Exhibit M) that we would like to propose. In Section 1, subsection 3, in lines 1-26 and through 1-30, it says:
If an interlocal agreement is entered into pursuant to this section by a local government, the local fire department within that jurisdiction shall exercise the authority and perform the duties of the State Fire Marshal delegated pursuant to the interlocal agreement within that jurisdiction.
This language currently will not work in Henderson, because we recently merged the fire prevention division from the fire department into the building department, and we created a new department called “Building and Fire Safety.” The fire safety division within this department enforces all of the regulations of the current fire code.
[Jim Madden continues his testimony in support of S.B. 458.] We propose that a friendly amendment (Exhibit M) be added to this section. “If an interlocal agreement is entered into pursuant to this section by a local government, the chief officer of the organized fire department or his/her designee shall exercise the authority to perform the duties of the State Fire Marshal delegated pursuant to the interlocal agreement within that jurisdiction.”
This amendment doesn’t hurt any of the other fire departments in the state, but it will clarify that, in the City of Henderson, we would be able to act as the Fire Chief’s designee.
There are some other sections that need some, what I would call, minor editorial changes that would add the words “his/her designee.” I would just like to leave those sections with the recording secretary (Exhibit N).
Assemblyman Goicoechea:
I just want to make sure how this fits into the rural counties. I thought, in all counties under 25,000 population, most of those duties are mandated to the State Fire Marshal. Is that not correct in terms of enforcement and building inspections? I had thought it was 25,000, but I see 50,000 in the bill. How is this going to fit for them? Do you enter into an interlocal agreement with the government under 50,000?
Jim Madden:
The State Fire Marshal can probably correct me if I am wrong, but I believe the correct legislated number is 100,000.
Assemblyman Goicoechea:
In this particular bill, but is that going to take out the 50,000 and the 25,000 that was there previously? I know that a year ago or a year and a half ago, in counties under 25,000, that was a breakpoint, and counties of 50,000 were another.
Ron Lynn:
That is my understanding. This is not, should not, result in a negative impact or any change of operations on the smaller jurisdictions, those under 100,000. The numbers have changed over the years, so we have crept up so that it is now over 100,000 and 400,000.
Assemblyman Goicoechea:
But, it says in the bill, Section 1, subsection 2, in a county other than one whose population is 100,000 or more, or has been consolidated into a consolidated municipality. “The fire marshal shall, upon request . . .” Then, you can go through all of these things. Technically, by statute, they are required to have that interlocal in place, I believe, if you are fewer than 100,000.
Ron Lynn:
That would be my interpretation. Again, the State Fire Marshal could probably address that better.
Lou Buckley, Carson City Fire Chief:
I am here to testify against the bill, as it has been amended. The original S.B. 458 I had no issues with. However, the amendment, page 5, Section 11, excludes the building department from the State Fire Marshal’s regulations and/or oversight. Whatever is built, the fire departments is left with. In many cases, if you don’t build them up to code, you are doing the business public a very grave disservice. What will happen is that they will build it to the specific building code, and the building department will approve it. Six months later, the fire department shows up to do the inspection, and then there are $75,000 worth of improvements they will need to make in order to meet the requirements of the fire code. I think those two have to go hand in hand. I not only think that from a public safety standpoint, but also from a businessperson’s standpoint. It is much more efficient that way, provides better public safety, and doesn’t place the business owner in the dubious position of trying to abide by two different codes and guessing exactly what government wants.
I have a second issue with the amendment. It is paragraph 2, page 6, in which it virtually makes Carson City, being a consolidated municipality, the workforce for the State Fire Marshal’s Office, the collection agency for the State Fire Marshal’s Office, and then, quarterly, we shift the monies off to the state. We have issues, locally, relative to manpower and available resources. To load-shift the workload and the collection requirements of the state to the local entity is doing the local jurisdictions a disservice, I believe.
I know there are some amendments out there. Some of them address a couple of these issues. However, most don’t address both of them. Therefore, I would like you to consider this testimony when you look at the amendments.
Assemblyman Hardy:
Are we looking at adopting newer regulations as we go, and, if we are, is IBC newer, bigger, better than UBC? And, is this a transition issue that eventually we will be adopting international building codes versus uniform? In other words, are we looking to go somewhere and, therefore, we need to be there now? The reason I’m asking is that I have been involved with the hospital being built that was told to have the windows open one way, fire people wanted them to open another way, and we had two conflicting kinds of things, just exactly what you are describing. It was the same thing with a state nursing home. The same kinds of things that you are describing have happened and are happening. It would behoove us to do something, so that we get everybody literally on the same page of a code, so that we don’t have the exact scenario that you were talking about. I would be uncomfortable with doing an IP [Indefinitely Postponing] of the bill, if that continues the problems that we are having. I would like to resolve those problems.
Lou Buckley:
I think those problems, within the current context of the codes we have in Nevada, are just misunderstandings. They are not actually conflicts between the codes themselves. You have a large number of codes out there, both fire and building, presented by different companies, NFPA, the Uniform Fire Code, and so on. There was an effort to create one code within the nation; that fell apart. All of this is big business. All of it generates money. It is kind of like earlier when the unions were talking. Those are big businesses that generate money. Therefore, you have conflict.
In trying to get them all to come together and agree on a nicer, gentler relationship, one is not always successful. And, that happened with the fire codes, IBC, UBC, and the NFPA. They became parochial. In Nevada, right now, I don’t think you have a terrible conflict. At least, my perception is that there is not a conflict between the uniform building code and the uniform fire code. It’s the interpretation of those codes that may be creating the issues that you are referring to.
As this amendment is worded, though, consolidated municipalities and those over 100,000 would be exempt from the State Fire Marshal’s code; their building codes would be exempt from the State Marshal’s consideration. Regarding the State Fire Marshal, assuming that we want to continue the concept of the state and not have a bunch of independent entities within the state, I would recommend that he maintain jurisdiction. From both the public safety standpoint and cost effectiveness on the part of the private citizen, these building empire codes need to remain within the jurisdiction and consideration of the State Fire Marshal so that we don’t have actual code conflict occurring. We can’t do a lot about one inspector interpreting a code one way, and another one interpreting it another way. We can try to make the codes just a compatible as possible.
Assemblyman Grady:
I don’t know if you were involved as far as the fees were concerned, and I want to say it was either last session or two sessions ago, the larger municipalities fought to get away from the oversight of the State Fire Marshal but agreed to pay the fees to continue the operation of the State Fire Marshal’s Office. At that time, I don’t believe that the consolidated government was included in that. I think part of what you were referring to as subsection 2 was an agreement at that time, and maybe Ron Lynn remembers that. I think that was the reason that was done, to continue some funds to support the State Fire Marshal’s Office, and the large municipalities agreed to that.
Lou Buckley:
I am not aware of that, Mr. Grady. I know that $60 is supposed to go to SERC (State Emergency Response Commission) for haz-mat [hazardous materials] training throughout the state. Other portions are supposed to be dispersed to different entities. My understanding of how that is actually working is that it is not. Although I have some other issues relative to State Fire Marshal’s operations within Carson City and the uniform fire code, I think we can work those out with the State Fire Marshal. I don’t think it requires any legislative action per se to deal with those issues.
My overriding concern here is the consolidated municipality of Carson City, we are the only one in the state, so, obviously, when they use that term, they are talking about us. I want to make sure that we have the highest level of public safety and the firmest relationship with the business people in our communities that we can. I think that state legislation would create a different environment that would serve everyone poorly.
Dave Drew, Chairman, Board of Fire Services:
The Board of Fire Services is one of the organizations that has worked, for several years, trying to develop some changes to the State Fire Marshal’s Office for the benefit of the state of Nevada.
Like some of the people you have heard so far, effectively, in its original form, this bill met the needs based on recommendations developed by the Board. With the amendments that have been added, however, I think I can speak for the Board. We just can’t support the bill the way it is written right now.
I believe it was Assemblyman Goicoechea who asked about the possible effects on rural Nevada. The section that was added, having to do with fees, would have a significant effect on several, what you might consider, rural areas of the state of Nevada. The amendment included right now requires us to do the work and send the money to the state. In order for us to do that in the rural areas, we would have to double-tax. We would have to ask for pay for the state, and we would have to ask for pay for us. It is difficult enough to get businesses into the rural part of the state as it is, let alone if we were to double-tax them for doing the service as listed.
[Dave Drew continues.] The intent of the Blue Ribbon Committee, the Board of Fire Services, and the original bill was that whoever does the work collects the fees and keeps the fees. The one exception to that was the $60 surcharge for hazardous materials permits with regard to the hazardous materials training and the state’s Emergency Response Commission fees.
There was another question brought up having to do with agreements that may have occurred in the past, and there was a great deal of discussion regarding how we would fund the Fire Marshal’s Office in past sessions, because it was purely fee-based. As I am sure you all know, we have testified to the money committees, as well, to begin to change that. To be quite honest, in the past, the emphasis really was to collect the fees to try to keep the system going. There wasn’t, necessarily, a great deal of effort being set forward into areas that would not generate a lot of fees.
Some of the rural parts of the state may have been overlooked, as far as inspections and things like that, because there is a great deal of staff time that is involved in sending someone out to do an inspection on maybe one or two businesses that would generate a couple hundred dollars, when you could send that same person into an urban area and be able to generate considerable fees.
To be quite honest, and I believe Fire Marshal Sutton has realized this since he came on board with the Fire Marshal’s Office, they were having a hard time collecting enough fees to stay in business. That needs to change. This is a public safety entity, and they need to do the job that they need to do in the areas where they need to do it. That is really what the entire intent of this was. The intent was to properly fund them, and to have the State Fire Marshal’s representatives in the areas of the state where they really needed to be doing their jobs.
Getting back to the fees issue, speaking for my own jurisdiction, which is East Fork Fire District in Douglas County, many of these services we could provide for ourselves through an interlocal agreement. Why should we take the Fire Marshal’s staff time to come down to provide some of these services when they could be out providing those services in other parts of the state that need them desperately? We can, through interlocal agreements, perform those services and collect the fees. Oversight by the State Fire Marshal’s Office would be fine. That was the intent of this. I guess, fundamentally, I would like to say that the notion of going back to the original intent of the bill, speaking on behalf of the Board of Fire Services, is what we would like to see.
[Dave Drew continues.] The code issue is one that I am not going to specifically address. In its entirety, however, I think everyone agrees that there needs to be a good minimum level of safety statewide. Some sort of minimum in subsection 12 of Section 3 is what the Senate was trying to emphasize; there was to have been some sort of minimum code. How that would be accomplished, many of the code people can work it out. I would leave that specifically with the code people, with the caveat that the minimum is important. The fees issue, however, is huge, especially for the more rural jurisdictions. Many of those are growing as fast as any other parts of the state.
Chairman Manendo:
What could you live with? You don’t have a proposed amendment.
Dave Drew:
I do. I just happen to have it right here in front of me. The proposal, via e-mail, flying all over the state from different fire departments, that I would feel comfortable with, is to delete Section 4, subsection 2, having to do with the fees. Delete Section 3, subsections 11 and 12. Again, that is the code section.
Chairman Manendo:
And that will take us back to the original bill?
Dave Drew:
We felt that, essentially, it would. There were some other cosmetic things I think Fire Marshal Madden came forth with, some corrective language with regards to “fire department” here, and “his/her designee” there (Exhibit N). We don’t have any problem with that. That was discussed in the Senate hearing as well.
Chairman Manendo:
Did you testify in the Senate?
Dave Drew:
Yes, I did.
Chairman Manendo:
Do you know why the two bills were merged?
Dave Drew:
I have no idea from reading the minutes, I think the notion may have been, that there were two bills out there, and they tried to combine them for expeditious purposes, and they don’t necessarily go together very well. There are two different agendas here in a way. That is very important to realize. Many of the changes were done in Senate Bill 458. The agenda for that was to correct where the services for the Fire Marshal were being provided and how it’s being funded. That really was in S.B. 458 to begin with, and that is the other half of the whole scheme. We need to fund it properly and get the resources that the Fire Marshal has into the areas where they need to be providing the service. That was S.B. 458, plus the budget issue. The issue with S.B. 118, which was introduced into this bill as Section 3, subsections 11 and 12, I think, was inappropriate. It really significantly clouds the issue with regard to S.B. 458.
Chairman Manendo:
Senate Bill 458 passed the Senate by a vote of 20 to 0, in this fashion?
Assemblyman Collins:
I think that the 1999 Legislative Session was going to eliminate the State Fire Marshal’s Office totally. Is the language in some of this kind of directed in that manner, to change those responsibilities in that direction? Can you tell? Yea or nay?
Dave Drew:
I do not. I believe that’s when we started formally putting together a set of recommendations. One of the first questions we asked was, “Does the state need a Fire Marshal’s Office?” Just about across the board, the consensus was that we did need a Fire Marshal’s Office, but they don’t necessarily need to be doing what they are doing under the current laws that stand today. The role that they would take needs to be modified, and that is what we tried to address in our recommendations that came through in this bill. However, I do strongly believe that we do need a State Fire Marshal in this state. Again, what the role is, or the role of the office is, may need to change. I believe that they provide services, especially in those rural areas, that just can’t be provided by the rural services available.
Assemblyman Collins:
I think that was part of the issue, the funding and the budgeting, and what was their role, when there were a lot of duplicate services, or overlapping services. Maybe there should be an interim study to clean that up, Mr. Chairman.
Assemblyman Hardy:
Is there a population cap that could be applied that would allow Clark County, which sounds like it is feeling unique, to apply one set and other jurisdictions another? At the same time, could they agree to disagree and amend out the fees and delete the things that are onerous for some and put in the other one that allows flexibility by the designated county?
Nicole Lamboley, Legislative Relations Program Manager, City of Reno:
[Introduces herself and Larry Farr.] Mr. Farr can talk with you about his testimony on the Senate side on both S.B. 118 and S.B. 458. I did read the minutes of how these two bills became one. It appeared that there seemed to be a fiscal note issue. It was hard to assess, really, how the discussion came about. We do have an amendment that we would like to propose, and it does address a different population cap to address some of the concerns that Clark County has. We went section by section in the bill and provided a fairly lengthy amendment for your consideration. I would ask Larry to provide further information.
Larry Farr, Division Chief/Fire Marshal, Community Risk Reduction, Reno Fire Department:
Senate Bill 458, as it was originally drafted and introduced, had to do with the duties and powers of the State Fire Marshal. As I read it, I was set back a little bit thinking to myself, how did we get to this point? This is deja vu all over again.
In 1966, the State Fire Marshal’s Office was established. When it was established, it had jurisdiction throughout the entire state of Nevada for inspections, fire investigations, and code adoption, and it remained that way for about 10 years. When the Legislature changed the scope of the Fire Marshal’s Office, it said that the people in that office needed to be working in the areas where there weren’t organized fire departments and building departments, to support those people. The larger counties and municipalities could carry out the State Fire Marshal’s duties on his behalf. Legislation was drafted and has been in NRS 477.030 since that time. The only thing that has changed is the threshold. It started out at 25,000 in population, moved to 35,000, then to 50,000, and now we are talking about 100,000. Let me read that to you. (Section 3, subsection 2, on page 4.)
Except as otherwise provided in subsection 11, the regulations of the State Fire Marshal apply throughout the State, but, except with respect to state-owned or state-occupied buildings, his authority to enforce them or conduct investigations under this chapter does not extend to a county whose population is 100,000 or more, except which has been converted into a consolidated municipality . . .
That was the intent back in 1976 when the threshold was 25,000. This language has stayed in the bill all the way through. We never had any real conflicts with the State Fire Marshal’s Office as far as jurisdictional responsibility or authority until the State Fire Marshal’s Office took on the responsibility of conducting plan reviews for certain buildings. Those are the buildings in rural Nevada and also state-owned and state-occupied buildings. The office became fee-based and found out that, through the fee-base, through conducting plan reviews, they could charge a fee.
[Larry Farr continues.] This section of NRS says they can’t apply the code in our county, and, yet, they have found ways to come in through the back door saying that they are doing this on behalf of Public Works. They are doing this on behalf of the state’s Health Department. They are giving us the authority. We say, “How can they give you the authority when you don’t have the authority under the statutes?” We have a bunch of conflicts that have arisen. As a result of that, we are back to where we were in 1976. We have duplication of services, we have the people in the larger counties and municipalities having an extra layer of bureaucracy, and we have a lot of confusion on the interpretation and application of the code. We also have extra costs added to it.
In Washoe County, right now, if you build a health care facility, you apply for a building permit. In doing so, the local fire department, the local building department, the engineering department, and the planning department review that building to make sure that it is in compliance with all state, county, and city local codes. You also then have to apply for a building permit and pay a fee to the State Fire Marshal, so that he can sign it off on behalf of the state’s Health Department. We used to do that on his behalf, until he found out he could get fees.
[Larry Farr continues his testimony on S.B. 458.] I know I am sounding negative on it. The problem is that they are fee-based. If they don’t get fees, they don’t have an office. The people are out of work. That is a little of the history. This goes back many years when the Legislature understood that the State Fire Marshal was needed to provide the services in those areas that don’t have organized building departments and fire departments that can do the job.
The bill, as it is written, does not really address the concerns of having many interlocal agreements entered into. That really doesn’t answer all of the questions. The report to the Governor from the State Board of Fire Services made many recommendations, and this bill was supposed to incorporate those recommendations. Let me just read a few things to you. These are recommendations concerning the Fire Marshal’s organization from the report.
An adversarial and/or competitive environment currently exists between the State Fire Marshal’s Office and local jurisdictions, specifically, fire service jurisdictions. Conflicts arise from duplication or mandated services or interpretation of mandated services described in Nevada Revised Statutes.
[Larry Farr continues.] There is nothing in this bill that specifically addresses that. The way they tried to address that is to say that you can enter into these interlocal agreements, because Clark County, Las Vegas, and some of the southern Nevada fire services entered into those agreements a couple of years ago. They think that is the answer.
The City of Reno does not believe that is the answer. When we enter into those agreements, we take on the liability, we take on the responsibility, we have to collect fees, and then we have to give the fee to the Washoe County Treasury. At the end of the quarter, the County Treasurer gives the money to the contingency fund of the state. In order to do that, we have to enter into an interlocal agreement with the Washoe County Treasury. We need to find out what it is going to cost them to administer that program, and we need to find out what it is going to cost to administer the program for Reno, and we need to tack that cost onto the inspection fee of the consumers and citizens in our community. That is not right.
Senate Bill 458 has nothing to do with adding a layer of safety or security from fire in the state of Nevada. Having the State Fire Marshal inspect the hospital and then having us inspect the hospital next week doesn’t make the building any safer. It creates many problems for the hospital, because they have to pull people off to walk around with us. They have to deal with two interpretations. They have to try to get us together so that we can come up with one interpretation. Then, they have to pay two plan review fees.
Furthermore, under this report, it states:
Conflicts arise regarding local definition of authority or responsibility that exists in the State Fire Marshal’s Office between the State Health Department, State Public Works, or other state agencies that adopt fire/life safety codes.
I don’t want you to get bogged down in this amendment, because we are talking about adopting one code. However, in Nevada, Public Works adopts a building code, the Fire Marshal adopts a building code, the Health Department adopts a fire/life safety code, and we have all kinds of codes floating around out there that are, sometimes, in conflict. It was identified in the Board’s report that we need to do something about that. This bill doesn’t address that.
The State Fire Marshal’s Division is grossly understaffed to provide services mandated under NRS.
[Larry Farr continues his testimony.] That was a finding of the State Board of Fire Services. If a local jurisdiction, such as the City of Reno and the County of Washoe, choose not to enter into an interlocal agreement as provided in this bill, that means that the State Fire Marshal must step forward and fulfill the requirements of this bill. According to the report, he is grossly understaffed. I don’t know how he is going to do it. I don’t know how he is going to carry out those provisions.
I was at a meeting about a year ago with Dave Drew, who chairs the Board of Fire Services, and Lee Leighton, Chief of the Sparks Fire Department, who is on the Board of Fire Service. We met with a representative of the Governor, and our comments were to support the need for a State Fire Marshal’s Office. There are functions within that office that need to be carried out. But, the reason we are here today is the same reason why, back in the mid-1970s, Senator Lamb literally abolished the State Fire Marshal’s Office by holding up its funding on the State Finance Committee. It was because there was too much duplication of services by the Fire Marshal’s Office and local entities of Clark County. That was when NRS 477.030, paragraph 1, subparagraph (d), was created to say, “The regulations apply throughout the state, but, except with respect to state-owned or state-occupied buildings, his authority to enforce them or conduct investigations” does not. That authority rests with the local department. If we just carry out current law, and the State Fire Marshall carries out current law, then we wouldn’t be here today.
We have some amendments (Exhibit N) that we will provide to you for consideration. However, our position is that the bill should be postponed indefinitely, that the thought of a workshop to be able to thoroughly go through the report from the Board of Fire Services, to be able to work through NRS 477, and to clearly define the roles and responsibilities of the State Fire Marshal’s Office and the local jurisdictions, would be our preference.
We have one other major concern with this. First of all, NRS 277 currently allows for interlocal agreements between local jurisdictions and state agencies. They are currently doing that in Clark County. You don’t need this language.
[Larry Farr continues.] What this language does is to set the parameters or negotiates the interlocal agreements. It sets in stone some areas where we may want to negotiate. If we were to enter into an interlocal agreement, we have to take all or nothing as far as the duties or responsibilities of the State Fire Marshal’s Office. We have some issues with that. I would like to have Nicole review with you some amendments that could be considered, but, again, our bottom line is that I don’t believe interlocal agreements are a solution to the recommendations in the Board of Fire Services’ report.
Assemblywoman Koivisto:
If we don’t pass this bill, what happens?
Larry Farr:
If this bill does not pass, we are right where we are today. There’s not a negative impact on fire and life safety in the state of Nevada. Right now, the State Fire Marshal’s Office has adopted the 1997 Uniform Fire Code and the Uniform Building Code. Throughout most of the state of Nevada, I don’t believe it is in Clark County, that is the standard. There is no impact on our citizens, as far as a negative impact. We would be at status quo. We would be able to look at what is going to happen with the funding. That was a fundamental issue in the report. How was this going to be funded? We wanted to get away from the fee-based funding that made the State Fire Marshal officers into revenue officers essentially. There has been some legislation proposed, I think, that would fund the office, or at least some of it, in a way that was not fee‑based. Once that is done, we can step back and look again at NRS 477 to ask what the duties and responsibilities of the State Fire Marshall are, and to ask what the duties and responsibilities of the jurisdictions over 100,000 in population are.
Assemblywoman Koivisto:
It seems like we are working awfully hard to try to fix something that probably isn’t broken with a piece of legislation that doesn’t seem to do what it was meant to do. The bottom line is whether S.B. 458 has an effect, either positive or negative, on life safety issues for the citizens of Nevada. Just yes or no.
Larry Farr:
No.
Nicole Lamboley, Legislative Relations Program Manager, City of Reno:
We have provided amendments (Exhibit O). Basically, what we propose to do is to amend Section 1, subsections 1 and 2, to state that it would be in a county whose population was 100,000 or more. So we would change the population cap. We do that throughout the bill, if you are a county of 400,000 or more, that has entered into an interlocal agreement pursuant to Section 1. That is the first bulk of our recommendations.
The second is Section 9. What we propose to do in Section 9, relating to hazardous materials, is to retain current statute.
The other fundamental change is in Section 16, subsection 1. We refer back to the roles and responsibilities delegated in NRS 477.030 in subsection 2.
Those are our three major changes.
Chairman Manendo:
If we were to adopt these amendments, you would be okay with the bill?
Nicole Lamboley:
We would be more comfortable than we are currently, but, again, we think it really doesn’t get to the heart of the issues that I think the original bills were trying to accomplish.
Assemblywoman Koivisto:
It appears to me that we have a Christmas tree that we are just hanging things on to try to make it look better. It seems to me that we are creating a bureaucratic nightmare.
Mary Walker, Lobbyist, Carson City Douglas and Lyon Counties:
We have a lot of concerns regarding S.B. 458, as currently drafted. The amendments presented by the City of Reno do go a long way to rectify our concerns, but, just in case you do pass it, there are two additional things that need to be placed into the amendment. This amendment was to try to shift it so that, if you were making changes, the changes would affect Clark County.
A couple of things are missing that pertain to an anomaly, which is Carson City, the consolidated municipality. The first would be on page 5, paragraph 11, on line 42. We would need to eliminate “or which has been converted into a consolidated municipality.” In that way, none of the rules is affected by paragraph 11. That goes back to keeping it under more of an urban regulation, rather than a rural type of regulation.
The second change would be on page 6, Section 4, paragraph 2, ‘’if a local fire department,” adding “in a county whose population is over 400,000” and then take out, on line 29, “pursuant to Section 1 of this Act.” The reason is we want paragraph 2 to refer only to those counties over 400,000. By referring back to Section 1, that includes Carson City. We do not want to pay the double fees, and our contractors do not want to pay the double fees.
Those are the two modifications that will complete the City of Reno’s amendments to make sure that all of it goes toward Clark County and does not affect the other entities. That will add to the Christmas tree a little bit.
Chairman Manendo:
Can you get those suggestions into writing and give them to us later?
Mary Walker:
Yes.
Dave Drew, Chairman of the Board of Fire Services:
I would like to say that, by and large, I think we can live with the amendments that were recommended by the City of Reno with the additions that Ms. Walker added as well.
There was some discussion regarding review by an Interim Study. In a left-handed way that has already been done through the Legislative Subcommittee on Industrial Explosions that occurred during the last interim. That study included the recommendations by the Blue Ribbon Committee and forwarded letters to the Assembly and Senate money committees, as well as to the Governor, to support the study.
I would also like to point out that the same people that were speaking for the Board of Fire Services talked about the Board developing a set of recommendations and agreed to the bill. With the issue of life safety in the state, we have a pretty good level of life safety in the state, especially in the more urban areas, currently. However, we have identified that the issue really rests in the more rural areas. Even in the urban areas, currently, it is already a nightmare. We are not creating one; it is now. For us to delay passing this type of legislation will continue that nightmare.
As Fire Marshal Farr described, there are duplications of inspections. We literally have a Reno or Las Vegas inspector going to a business to assess a fee for an inspection for hazardous materials. A week later, a state inspector comes in and does the same thing. The poor business owner is standing there wondering what is going on, as he just had an inspection a week or two ago. We have heard horror stories over the last several years, and that is why we have been trying to develop the notion that is included in here. Is this perfect? Maybe not. Will we have to come back later to revise it? Perhaps. However, I think I heard earlier today, that, if we tried to make everything perfect, we probably would not pass anything.
Those problems do, currently, exist. They may not be in the area of minimum safety of the public; however, it clearly is, with regard to the resources that they are out there for the State Fire Marshal’s Office, where they do their business. How that is put into effect may very well affect the safety of the public, especially in the more rural areas.
I would also add that the current State Fire Marshal, Doyle Sutton, has done a great job in trying to remedy that. He is working very hard on that. However, he is still up against that fees issue, as well as some other, literally limited, personnel issues. It seems to me that the recommendations that Reno has come forward with would be fine.
Assemblyman McCleary:
I would gladly chair a subcommittee if there should be one on this bill. As someone who has been in business, I know what it is like to have someone come in and do an inspection. That inspector will find some things wrong, and you’ll address those, and then the next team that comes in finds different things wrong, and you address that. You just go around and around about it. I understand the frustration of that and would love to do something to fix that.
Kimberly J. McDonald, Special Projects Analyst and Lobbyist, City of North Las Vegas:
We are opposed to S.B. 458 as printed as the first reprint for all of the various reasons that have been stated before my testimony. We do concur with the City of Reno’s amendments, and we also concur with the additional amendments stated by Mr. Drew, and with the Board of Fire Services, for the deletion of Section 3, subsections 11 and 12, and Section 4, subsection 2.
Karen Kennard, Executive Director, State of Nevada Emergency Response Commission:
[Ms. Kennard reads from her letter to the Assembly Committee on Government Affairs, Exhibit P.] The Commission is opposed to the bill, as written, in a couple of areas. One area is that it does not address the collection of SARA (Superfund Amendment Reauthorization Act) fees regarding the storage of hazardous materials. Currently, the State Fire Marshal receives the hazardous materials combined reports along with the permit, the hazardous materials, fees, and the SARA fees. They then deposit those fees into the contingency fund for hazardous materials. If these fees are not collected, we stand to lose approximately a half million dollars in revenue, which is granted to the local emergency planning committees for the purpose of training and equipping local First Responders for hazardous materials incidents.
[Karen Kennard continues.] Additionally, as written, the bill directs the local agencies to deposit the fees collected into the county treasury for quarterly submission to the contingency account. This process could drastically cut the amount of interest earned by the State Emergency Response Commission for the funds received by this account.
With these areas of concern addressed and the amendment by Reno to leave Section 9 alone, our concerns would then be taken care of.
Robert Fash, Deputy Fire Marshal, Las Vegas Fire and Rescue:
I would concur with David Drew, as far as his recommendations as to deleting Section 3, subsections 11 and 12, and actually restating part 10. I would also concur with the deletion of Section 4, subsection 2, as it refers to fees. We would also concur on Reno’s amendments, also. They will help clean up the document quite a bit.
We are still opposed to Amendment 320. We felt there was no legitimate reason for it. Currently, under the system as it exists right now, any jurisdiction can propose to the State Fire Marshal any type of building code, no matter who or where it comes from. If it meets the minimum state level, it can be used. If the building official doesn’t want to meet a certain minimal state level, then he would have to show just cause, a reason why.
Examples proposed to you, the Luxor and Mandalay Bay, and, in our jurisdiction, the Stratosphere, were all built under the current codes in effect now. They did use performance-based applications, and we had no adverse effect with the State Fire Marshal’s Office to build those structures. If the proposal from Dave Drew is accepted, along with the amendments from Reno, we would be happy with the bill. We would hope, though, that Amendment 320 would be pulled out.
Chairman Manendo:
Would you fax us your recommendations?
Robert Fash:
I believe we have faxed that letter to you with the city letterhead on it already.
Ron Lynn:
I support the City of Reno’s and Carson’s amendments. However, I differ with the last testimony. The fact is, for over 22 years, we have not submitted our building codes to the State Fire Marshal for review. This has been the first time. We could not have built those buildings. In front of this very Committee, we had A.B. 57. You are looking at a very small fraction of information here.
The fact is, on the basis of good business, I am held accountable as a building official in Clark County. I am the one who goes to court, I am responsible for the inspectors who do the inspections, responsible for the plan’s examiners through the plans examining, and, therefore, I should have the authority for the adoption of the codes, which I will have to defend. The State Fire Marshal does not come down to do those inspections. The conflicts that Assemblyman Hardy and Assemblyman McCleary referred to are just what Section 3, subsection 11, is trying to clear up; it is to make one person accountable.
Chairman Manendo:
Mr. Sutton, would you clarify again what exactly your position is. Are you testifying that you can support the bill as is?
Doyle Sutton, State Fire Marshal:
Other than being totally confused, I would say that I could support this bill in its original form without Amendment 320. I could support the Chairman of the Board of Fire Services’ recommendations. I could even support Reno’s amendments. But, I cannot support Amendment 320. I think there are some real specific reasons that haven’t been brought out.
One of those things is, Fire Marshal Fash from Las Vegas mentioned it, that every jurisdiction in the state, regardless of their size, can adopt any code that they want to adopt as long as it is equal to or greater than our fire code. If we take Amendment 320 and accept it, entities, agencies, and local jurisdictions can adopt codes that are less stringent than the state’s standard. That is why I oppose that amendment. I think we need a base, a state minimum standard, and it needs to hold for the entire state. One of the things that can happen is a very inconsistent code adoption process, where you have less stringent codes in the larger municipalities than you would have in the smaller counties.
I also would support a committee to study the code adoption process in the state.
There were a couple of other questions brought up in reference to the population caps. That has changed over the years, going from 25,000 to 50,000 to 100,000 populations. Those populations under 100,000 fall under the jurisdiction of the Fire Marshal’s Office. They may request, through an interlocal agreement, to accept those responsibilities. That is what has happened.
We have interlocal agreements with almost every county in the state, with the exception of Washoe County. They accept responsibility and the authority of the State Fire Marshal’s Office, and it is a pick-and-choose of what they want to accept. That has been a very successful process, by the way. We have been very happy and are currently negotiating with Clark County and the entities there on interlocal agreements, and we are talking about possibly changing some of the process.
[Doyle Sutton continues.] The interlocal agreements put into place by the last legislature turned out to be very good tools, very effective, and are working well. I am in favor of stopping the redundancy, stopping the duplication, letting the Fire Marshal in the larger counties do the job. The only thing I am interested in is survival. We have to get out of the fee-based structure and into a more stabilized funding source to do that.
Assemblyman Goicoechea:
I agree with you. By interlocal agreement, we can adopt portions and leave portions out. Unfortunately, what happens out in some of the more rural communities is that we do miss some buildings. I think that is true even close to Carson City here. There are some things overlooked. How well it’s working, I will have to talk with you another time.
Rusty McAllister, Professional Firefighters of Nevada:
I signed in as neutral on this bill, because I have various people I represent who are on both sides of this issue, for various and a multitude of reasons. Some want the State Fire Marshal’s services; others don’t want anything to do with the State Fire Marshal’s services.
From the firefighter’s point of view, I would say that we would like it if you did not adopt anything that would, in any way, affect or allow an entity to adopt a less stringent code than what is currently in place with the State Fire Marshal’s Office. As Chief Washington has mentioned, if you were to adopt the International Building Code, there would have to be 85 amendments made to that code to bring it up to the level of the Uniform Fire Code. [The Chair interjected that there were only two days left.] Well, they would do that within their own entities to change those amendments.
In testimony in the Senate, Senator Neal was quite adamant about the idea of not allowing someone to adopt a less stringent code. I am not sure how this amendment came out the way it did. He was very adamant, because he played such an integral role in helping to adopt those codes in the past, giving the State Fire Marshal the ability to adopt a very stringent code. That was right after the MGM and the Las Vegas Hilton fires, and he wanted to make Nevada one of the safest states in the United States in regard to fire codes. To do anything that would take a step back from that would be a disservice, not just to the public, but also to the firefighters themselves, who have to go out on a daily basis, and depend on the codes being at a certain level to provide them with safety.
[Rusty McAllister continues.] Our position is that we do not want anything less stringent than what is currently available through the State Fire Marshal. All the fees and the other things are not up to us; we are out of that.
Chairman Manendo:
Seeing no one else who wishes to testify on Senate Bill 458, I am closing the hearing on S.B. 458. I will bring it back to Committee at this time, and, no, I am not entertaining a motion.
I want to thank our staff that has worked so hard, as always, but today was a very long day, and we appreciate it.
We are going to try to put a deadline of 5 p.m. today, or first thing in the morning, for interested parties that want to try to work something out on Senate Bill 458. That will let us take another look at it as we head towards the deadline. I know some people have places to go. We appreciate the patience and indulgence of everybody during this long day.
As there is nothing else to come before the Committee, we are adjourned [at 1:16 p.m.].
RESPECTFULLY SUBMITTED:
Nancy Haywood
Committee Secretary
APPROVED BY:
Assemblyman Mark Manendo, Chairman
DATE: