MINUTES OF THE meeting

of the

ASSEMBLY Committee on Judiciary

 

Seventy-Second Session

April 10, 2003

 

 

The Committee on Judiciarywas called to order at 7:53 a.m. on Thursday, April 10, 2003.  Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada, and, via simultaneous videoconference in Room 4401 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. Bernie Anderson, Chairman

Mr. John Oceguera, Vice Chairman

Mrs. Sharron Angle

Mr. David Brown

Ms. Barbara Buckley

Mr. John C. Carpenter

Mr. Jerry D. Claborn

Mr. Marcus Conklin

Mr. Jason Geddes

Mr. Don Gustavson

Mr. William Horne

Mr. Garn Mabey

Mr. Harry Mortenson

Ms. Genie Ohrenschall

Mr. Rod Sherer

STAFF MEMBERS PRESENT:

 

Allison Combs, Committee Policy Analyst

Danielle L. Christenson, Subcommittee Policy Analyst

Risa B. Lang, Committee Counsel

Sabina Bye, Committee Secretary

 

 

OTHERS PRESENT:

 

James Jackson, representing the Nevada Attorneys for Criminal Justice

Michael Hillerby, Deputy Chief of Staff, Office of the Governor

Kent Lauer, Executive Director, Nevada Press Association

Robin Camacho, representing the American Heart Association

 

 

Chairman Anderson:

The Assembly Committee on Judiciary will please come to order.  [Roll called.]  There are 14 members present, 1 absent; a quorum is present.  Please mark anyone arriving late as present.

 

[The Chair reminded the Committee members and those present in the audience of the Standing Rules and appropriate meeting etiquette.]

 

If you are present this morning to testify, please note the Committee is in work session and it is not my normal habit to request testimony.  However, we may have some questions about amendments or on a particular piece of legislation, in which case we would ask for clarification. 

 

Remember, it is a misdemeanor to misrepresent facts before the Legislature.

 

Please refer to the Work Session Document (Exhibit C). 

 

Allison Combs, Committee Policy Analyst:

The first bill in the Work Session Document is one of three bills related to homeland security—Assembly Bill 250. 

Assembly Bill 250:  Makes various changes regarding certain acts relating to terrorism, weapons of mass destruction, biological agents, chemical agents, radioactive agents and other lethal agents, toxins and delivery systems and requires resort hotels to adopt emergency response plans. (BDR 15-49)

 

The Chairman asked Assemblyman Horne to work on a compilation of the variety of amendments that had been proposed both during the hearing and subsequent to the hearing.  Attached in the Work Session Document (Exhibit C) is a mock-up of the bill (page 6) prepared for Mr. Horne regarding these changes.  I would defer to Assemblyman Horne to go through those proposals.

 

Assemblyman Horne:

Section 1 in the original bill, you will remember, had six subsections in the Speaker’s opening intent.  That has been condensed and language was changed to encapsulate both his intent of the legislation and also to show the concerns everyone had regarding unintended defendants under the bill.  The remaining language is in the following three paragraphs:

 

1. The events of September 11, 2001, have focused our nation’s attention on the importance of preparedness and preventing, investigating, and prosecuting acts of terrorism.

 

2. The Legislature further finds that, to be effective, this effort requires a partnership among the federal, state, and local governments.  In furtherance of this partnership, it is the Legislature’s intent to strengthen the laws of the State of Nevada to better protect the health and safety of Nevada and its residents from acts of terrorism.

 

3. It is also the intent of the Legislature that this act be interpreted to provide the greatest measure of protection and safety for the people of this state and to preserve and protect their constitutional rights, including the right to petition their governments and to exercise their rights under the First Amendment to the United States Constitution and corresponding articles of the Constitution of the State of Nevada.

 

That language in subsection 3 was also suggested by Janine Hansen of the Nevada Eagle Forum.  We wanted the bill to include language to show the intent and to narrow the scope of whom A.B. 250 was intended to apply to.

Danielle L. Christenson, Subcommittee Policy Analyst:

Referring to the text box next to subsection 1, on page 1, of the mock-up bill in Exhibit C, it was Speaker’s intent to just revise subsections 1 and 2 of the original bill and to retain subsections 3 through 6.  The new language becomes subsections 1, 2, and 3, but the original paragraphs 3, 4, 5, and 6 will be retained, simply being renumbered.

 

Chairman Anderson:

Are there any questions on Section 1?  [No response from Committee members.]  There is no change in language in Section 2 of the bill?  [Mr. Horne indicated there were none.]  Then we will move to Section 7.

 

Assemblyman Horne:

Regarding Section 7, there was a general feeling that the section was very broad.  To follow the intent of the bill, amendments were proposed by Speaker Richard Perkins; Lucille Lusk of Nevada Concerned Citizens; and Laura Mijanovich and Dr. Richard Siegel of the ACLU (American Civil Liberties Union).

 

In Section 7, in the definition of “act of terrorism” [we made the following changes:]

 

·        The words “or to threaten” were struck.

·        The word “fear” was replaced by “extortion.”

·        The word “and” was replaced by “which.”

·        The original subsections 1, 2, and part of 3 were deleted.

 

The new definition in Section 7 would state:

 

“Act of terrorism” means any act that involves the use or attempted use of sabotage, extortion or violence which is intended to cause great bodily harm or death to the general population, or substantial structural damage to any public or private building, or the substantial destruction, contamination, or impairment of: . . .

 

[Paragraph (a) becomes Section 7, subsection 1, and] the words “or private” were added after the word “public,” [which requires “infrastructure” to become “infrastructures.”  Paragraph (b) becomes Section 7, subsection 2, and] the word “any” was added [at the beginning of that phrase.]  Any questions on Section 7?

 

Vice Chairman Oceguera:

Several terrorism bills are in the works.  Is the language in A.B. 250 consistent with other bills on the same subject?

 

Assemblyman Horne:

Several states are proposing their own bills in this area.  The ACLU provided a definition in their proposed amendments.  The [mock-up] bill represents my attempt to narrow [compile] the variety of language proposed, because we heard great concerns about whom the bill would apply to and how it would be interpreted.  For instance, the word “fear” was too broad and subjective, so we used a more exact word like “extortion.”  Perhaps, Ms. Christenson could elaborate.

 

Chairman Anderson:

I think the nature of Mr. Oceguera’s question is relative to the comparison [of A.B. 250 to legislation of] other states.  Possibly you or Ms. Combs have additional information that may be helpful.

 

Danielle Christenson:

Initially, I would inform Mr. Oceguera that it is my understanding that the various proposed amendments, particularly the proposed amendment for a new definition of “acts of terrorism” that was received from the ACLU, is the same language the ACLU is proposing in similar bills that are on the Senate side of the Legislature at this time.

 

The compromise [language] that Mr. Horne presents is a result of his own efforts to consolidate the various proposed amendments.  His language in Section 7 for the new definition of “act of terrorism” will also be seen in A.B. 441.  Those two Assembly bills will be consistent.  Will they eventually be consistent with other Senate bills?  I do not have information in that regard.  In so far as other states, we had no proposed amendments that were identified as language from other state legislations or legislatures.  I cannot comment in that regard.

 

Assemblyman Geddes:

Was the compromise language reviewed by those who suggested the proposed amendment?  Did they all agree to it?  Have they had a chance to look at it since you combined them?

 

Assemblyman Horne:

I have not spoken to Ms. Lusk since the day I was given the assignment.  Ms. Mijanovich, Dr. Siegel, and Gary Peck [also of the ACLU] came to my office.  They stated that while they preferred the ACLU language, they were satisfied with the language in the mock-up of A.B. 250.

Chairman Anderson:

Assemblyman Geddes, did you wish Ms. Lusk to come forward? [Mr. Geddes shook his head no.]

 

Assemblyman Horne:

In Section 8, the words “or contamination” were included in subsection 2.  Originally that subsection read, “Substantial deterioration of food, water, equipment, supplies, or material of any kind…”  We included the words “or contamination” because it did not read correctly with “deterioration” only.  While you can have “substantial deterioration of…equipment, supplies, or material of any kind,” “contamination” better suited the elements of food and water.

 

In Section 10, the words, “As used in Section 15 of this Act,” were added at the beginning of the section. 

 

Danielle Christenson:

The change in Section 10 was more of an editorial or technical change.  As Mr. Horne and I were proceeding through the proposed amendments and the bill in its original form, it seemed more consistent or easily read if there was a specific direction at the beginning of Section 10 as to where the term “material support” would later appear in the bill.  We simply inform the reader that “material support” appears in the bill later in Section 15, rather than have the reader comb through the bill to understand where “material supports” appear.

 

Chairman Anderson:

So, that would appear to be a suggestion to the bill drafter?

 

Danielle Christenson:

That is correct.

 

Chairman Anderson:

It is not a substantive change, but merely a suggested language change for consideration by the bill drafter.

 

Danielle Christenson:

Yes, Mr. Chairman.

 

Assemblyman Horne:

We heard concerns about the definition of “material support,” which includes [in the mock-up bill] “currency, securities, negotiable instruments or financial services, or assistance of any kind.”  There was a suggestion from the National Rifle Association [NRA] to remove the word “firearm,” from Section 10, subsection 5, where it states “any weapon of mass destruction, any biological agent, chemical agent, radioactive agent or other lethal agent, any toxin, any delivery system for use as a weapon or any firearm, explosive or other weapon of any kind.”  The NRA had objections to the word “firearm,” noting that firearms could be weapons used for hunting and should not be included in this definition.  However, I chose not to change that language because it goes to the definition of material support.  I did discuss it with Speaker Perkins; he had given me the NRA suggestion.  My comments to him were, “If I give my 9 millimeter to someone I know to be a terrorist, and he used it in a terrorist act, I have provided material support.”  Consequently, I thought “firearm” was appropriate.

 

Chairman Anderson:

Are there any questions on Section 10, Recommendation 4 of the proposed amendments to A.B. 250 for Mr. Horne?

 

Assemblyman Brown:

Was the NRA concern that the bill would designate a “firearm” as a weapon of mass destruction?

 

Assemblyman Horne:

Their concern was simply that the word “firearm” should not be included in the various items that could be used to define how material support was provided.  It wasn’t that it was included in a definition for “a weapon of mass destruction.”

 

Assemblyman Geddes:

I do have a question on Section 10, but not so much on the proposed changes.  I thought a concern had been raised related to “material support” in Section 10, subsection 7. [I am referring to the statement in the bill,] “Any means of oral, written, or electronic communication.”  That came across as quite vague and far‑reaching.  I was wondering if that concern had been addressed or, because it went toward intent, whether the language would remain in the bill.  Was an amendment considered?

 

Assemblyman Horne:

I received comments on that issue, but it was left in because the language in the bill has various intent levels—that of knowingly or intentionally providing these means of support.  This fell under material support.  I chose to leave it in because I did not think it was that ambiguous.

Chairman Anderson:

If I understand correctly, we should read Section 15 of A.B. 250, “Shall not knowingly”…utilize…”a means of oral, written, or electronic communication.”  If both sections were used together, they would read appropriately.

 

Assemblyman Horne:

That is correct.

 

Danielle Christenson:

In fact, that is what Mr. Horne and I did as we were proceeding through the bill.  We were constantly referring back to Section 15 to further understand proposed amendments to certain elements or the need for unproposed [additional] amendments to certain elements in Section 10.

 

Chairman Anderson:

Although, I think Mr. Geddes’ concern about using the term “communication” by itself is well taken. 

 

Assemblyman Horne:

Section 11 was changed to conform to other references in the NRS (Nevada Revised Statutes) concerning computerized communications and to ensure the provision is not overly broad or otherwise violative of the First Amendment protections.  In Section 11, subsection 7, we deleted “a modem” and “or the Internet.”  It would now read, “An item of electronic mail, a computer, system or network, or any other similar means of communication.” 

 

The reason for the deletion of the term “modem” was that it implied hardware or software of a computer system, as did the term “Internet.”  Everyone knows how extremely vast the Internet is.  It seemed to be an overly broad usage in this context.

 

Chairman Anderson:

Are you using the term “computer system” then, instead of “computer network?”  Is it going to be  “computer system or network”?

 

Danielle Christenson:

That is correct, Mr. Chairman.  Again, it reflects language that currently exists in NRS 201.560.

 

Assemblyman Horne:

I had asked that same question, Mr. Chairman.

Chairman Anderson:

Again, that is a bill drafter type of question?  [Ms. Christenson agreed.]  What is the harm in the use of the words “modem” or “Internet?”

 

Danielle Christenson:

I believe Mr. Horne’s concerns, as we were trying to hypothesize different situations that could fall into this definition, were, if an owner of a Web site allowed posting to the Web site by visitors, and unbeknownst to them their Web site, through the posting ability, was used to communicate terrorist information or information that could be categorized that way, it would be no fault of the owner/operator of the Web site.  It seemed to be too broad or too much exposure to those types of situations if the word “Internet” was left in the bill.

 

Chairman Anderson:

And the modem question?

 

Danielle Christenson:

That fell into the category of computer hardware and software.

 

Chairman Anderson:

Are there questions from members of the Committee?  Ms. Lang, do you agree with the changes?

 

Risa Lang, Committee Counsel:

I will take a look at all the proposals afterward and put the appropriate language into the final bill drafting.

 

Assemblyman Horne:

Section 12, subsection 2, would incorporate the same changes in Section 8, subsection 2, adding the words, “or contamination” because we are also dealing with food in Section 12.

 

Chairman Anderson:

That broadens the definition somewhat, but that is fine.  Any other questions?

 

Assemblyman Geddes:

The word “substantial” concerns me, now that I have seen it a couple of times in the bill.  Do we have “substantial” defined elsewhere in the NRS?  Is there a standard for what is considered “substantial”?

Assemblyman Horne:

This was original language of the bill.  We are talking about terrorism and I know that Speaker Perkins was trying to narrowly define its application.  If the word “substantial” was removed and the bill only stated “deterioration of food,” it would bring in a much broader scope of possible defendants.  We wanted to use a phrase that would be clear and convincing: you understand the word “substantial.” 

 

Chairman Anderson:

Ms. Lang, do you have an opinion about the word “substantial” from a bill drafter’s point of view that might help us to understand?

 

Risa Lang: 

“Substantial” is a standard that is frequently used in the NRS.  I don’t know that it is specifically defined, but it is certainly interpreted by the courts and would have to be interpreted in this case as well.

 

Assemblyman Horne:

Section 13, on page 9, defines a terrorist, and the word “intentionally” was added.  Ms. Lusk recommended the word “knowingly,” and it was changed because the words are interchangeable in NRS definitions.  We were attempting to maintain consistency.  “Intentionally” narrows the target area, so to speak.

 

Chairman Anderson:

Does this raise the standard?

 

Assemblyman Horne:

Yes, sir.  Without the word, we would be looking at a broader number of individuals who could be defined as a terrorist.  This language provides a mens rea, their mental intent regarding their actions.

 

Chairman Anderson:

Is there a legal difference between the words “intentionally” and “knowingly?”

 

Assemblyman Horne:

We looked it up in the NRS; those words are the same and interchangeable.  We used “intentionally” because we had used that same word elsewhere in the bill.

 

Assemblyman Brown:

If we use the word “intentionally,” maybe we should just rely solely on that word.  I am happy to take the direction, if the Legal Division [of the Legislative Counsel Bureau (LCB)] has reviewed it.  However, to me, “knowingly” might be a little more passive and I see that as being broader than “intentional.”  If we are looking for the narrower definition, I would be inclined to go with the word “intentional.”  If Ms. Lang has a comment on that I would certainly like to hear it.

 

Chairman Anderson:

Ms. Lang, do you have any feelings about word choices, since we seem to be playing word games?

 

Risa Lang:

Again, I think we will look at this in bill drafting and try to come up with the best way to do this.  This is in the definition, and generally the standard would go where the crime is, in terms of the mental state, but we will certainly look at this and ensure that it all works together.

 

Assemblyman Horne:

Ms. Christenson and I worked with the word choices as well.  As you can see in Recommendation 8 in the Work Session Document (Exhibit C), Section 15 [of A.B. 250], the language states, “a person shall not knowingly or intentionally.”  I understand how it can get confusing, but we did look it up.

 

Assemblywoman Buckley:

[Reading from] NRS 208.055:

 

“Knowingly” imports a knowledge that facts exist, which constitutes the act or omission of a crime, and does not require knowledge of its unlawfulness.  Knowledge of any particular fact may be inferred from the knowledge of such other facts as should put an ordinarily prudent person, upon inquiry.

 

I think there are nuances in the differences, but both require scienter.  It can’t just be negligence.  You have to actually mean it.  I think both words, because they are intentional, might give the tools to cover both.  I would go with the will of the Committee.

 

Chairman Anderson:

Are you suggesting that whenever the word “knowingly” is used that we should also be using the words “or intentionally?”  Perhaps if we use both in Section 13 and in Section 15, or just in Section 15, that would be better?

 

Assemblywoman Buckley:

I think both are okay as written.  “Intentionally” has a slightly stronger connotation, so if people want to express stronger sentiment, we should just use the word “intentionally.”  I think that is a policy choice. 

 

Assemblyman Horne:

Also, Mr. Chairman, in Section 13, we are defining a terrorist, whereas in Section 15, we are defining an act.

 

Assemblyman Mortenson:

To me, you could do something accidental and still know that you did something bad, but with “intentional” you would have to intentionally do it.  “Knowingly” is too broad because something could be done accidentally and you would still know it was bad.

 

Chairman Anderson:

Usually, it is after the fact—after you see it all fall apart.  What Assemblyman Mortenson is theorizing is that “knowingly” doesn’t include the element of pre-cognition—that the act is to be wrong.  Is that correct?

 

Assemblyman Mortenson:

No.  I think a person may have accidentally done something bad.  I can’t think of a good example, but something could be done accidentally and then they say, “Uh-oh.  I am going to get in trouble for this.  I didn’t mean to do it, but I know I did it.” 

 

Perhaps one example would be a child playing with matches and something is burnt down accidentally.  He knows he burnt it down, but he didn’t intend to do it.  I think “knowingly” might be too broad for a definition of terrorism.

 

Assemblyman Conklin:

I am a little more comfortable with the word “intentionally.”  Just to clarify Assemblyman Mortenson’s point, I think if you knowingly do something but don’t understand the consequences of it, that could become troublesome.  I like the word “intent.”

 

Chairman Anderson:

You want us just to stick with the word “intentional” and not use the word “knowingly” in Section 15?  [Mr. Conklin agreed.]

 

Assemblyman Horne:

In Section 15, we are defining an act, not a person.  So, in line with Mr. Mortenson’s and Mr. Conklin’s comments, there can be an act committed where you knowingly do something, but it was not committed with the intent to cause the result.  If you turn to page 9 [of A.B. 250], look at Section 15, subsection 1, where it states, “a person shall not knowingly.”  We added “or intentionally.”  Further down, in subsection 1(c), it states, “provide material support with the intent that such material support be used.”  That reflects the differences between the two meanings.

 

Chairman Anderson:

We will try to use both “knowingly” and “intentionally”—not and/or, but “knowingly or intentionally.”  The bill drafter will take the recommendation and work it into something we can all live with.  Please take us through Section 15.

 

Assemblyman Horne:

Regarding Section 15, subsection 4, on page 10 of A.B. 250, we had concerns about double jeopardy and the like.  Current language states:

 

A person may be prosecuted, convicted, and punished for violation of this section, whether or not the person is prosecuted, convicted, or punished for a violation of any other statute based upon the same act or transaction. 

 

The revision to subsection 4 “would ensure or otherwise indicate that the contemplated separate prosecutions for the same act under different statutes are not in violation of the constitutional protections of double jeopardy.”  We spent a little time in crafting that language. 

 

Danielle Christenson:

The language was disturbing to Mr. Horne.  This is a conceptual amendment only.  It is a very complex area, thus we have no proposed language for the full Committee.  We would certainly defer to the Legal Division if the concept can be realized in any changes to this particular section.

 

Assemblyman Horne:

I would pose a question to the attorneys who sit on the Committee.  What are their opinions regarding the language in Section 15, subsection 4?

 

Chairman Anderson:

This is a reaffirmation of Fifth Amendment rights? 

 

Assemblyman Horne:

I believe it could be.  I just couldn’t get away from the language of “whether or not the person is prosecuted or convicted or punished under any other statute upon the same act.”  Double jeopardy kept going through my mind.  We talked about “the lesser included offense.”  There is vague language where it states, “doesn’t give notice.”

Chairman Anderson:

Mr. Jackson, it appears you disagree.  [James Jackson approached the witness table and introduced himself.]  Mr. Horne is of the opinion that he would like some additional legal opinions from those who deal in this area.  Since you are a former public defender for the state, I thought perhaps you might have an opinion.

 

James Jackson, representing the Nevada Attorneys for Criminal Justice:

I am not sure this language is particularly needed.  I think the language as originally written states that a person can be separately tried.  There are number of issues that would come into play.  There is the possibility of two separate sovereigns.  The federal government may choose to prosecute as well and that would not be violative of the Fifth Amendment or the protections against double jeopardy.  I am not sure the conceptual amendment would address that anyway. 

 

Secondly, I am unsure anything could be done to abridge an individual’s right to appeal, whether or not they have faced double jeopardy for separate prosecutions of the same crime.

 

I do not feel the bill necessarily contemplates that a person in state court would be tried for murder as an act of terrorism and then tried for murder separately.  That would generate concerns of double jeopardy, but I don’t see that ever happening in reality.

 

Chairman Anderson:

Ms. Lang, do you want to attempt a clarification of the language for us?

 

Risa Lang:

I think, one reason it was worded that way is so that we can be sure that you can also be prosecuted under Section 15 for the terrorist acts, which may somewhat overlap.  They are still different but they may be arising out of the same conduct.

 

Chairman Anderson:

Is there a feeling that there may not be a need for Recommendation 9 on
A.B. 250 in the Work Session Document (Exhibit C)?

 

James Jackson:

Yes, in so many words, I think so, Mr. Chairman.  I just don’t think it is needed.  I believe Section 15, subsection 4, is probably all that is needed.  The reality is that a person cannot be tried for murder as an act of terrorism and separately for murder.  They arise out of the same transaction, so to speak, and I don’t think it is possible that that could happen anyway.

 

Chairman Anderson:

Mr. Horne, what is your feeling?

 

Assemblyman Horne:

My feeling is that I don’t believe the deletion of that entire section would harm the bill in any way.

 

Chairman Anderson:

Are you suggesting deleting the entire Section 15, subsection 4?

 

Assemblyman Horne:

Yes, sir.  Mr. Jackson makes a good point.  I don’t think leaving it in, if someone does deem something as double jeopardy, I don’t think abridges anyone’s right to appeal as well.  You just couldn’t do that in the statute.

 

Chairman Anderson:

Your recommendation is that we retain Recommendation 9, is that right—the elimination of Section 15, subsection 4, on page 10 of A.B. 250?

 

Assemblyman Horne:

Whatever the Committee is comfortable with.  I guess I would be more comfortable with it gone. 

 

Chairman Anderson:

Assemblyman Carpenter seconds that.  It appears we will be removing that subsection.  Let’s move on.

 

Assemblyman Horne:

The first amendment in Recommendation 10 would amend Section 16, subsection 1, by adding the following language before the word, “a terrorist”: “except as otherwise provided in subsection 4, a person shall not knowingly hinder, delay, or obstruct the prosecution of a person being prosecuted as a terrorist.“  We had to add, “a person being prosecuted as a terrorist,” at pre‑conviction, so to speak.  We labeled it as “prosecution of a terrorist.”

 

Chairman Anderson:

Any questions on that amendment?

 

Assemblyman Horne:

The second amendment to Section 16, subsection 1, was suggested to achieve the formulate language to substitute in the place and instead of, “hinder, delay, or obstruct” that specifies what actions are prohibited or are otherwise considered obstruction without relying on the use of those three words, “hinder, delay, or obstruct.”  Our goal was to provide notice of which acts are prohibited.

 

Chairman Anderson:

I don’t understand that.  I wish I could tell you that I did, but what…

 

Assemblyman Horne:

Basically, the amendment would specify what acts would be considered to hinder, what acts delay, and what acts obstruct in this context.

 

Danielle Christenson:

Mr. Horne and I visited the obstruction statutes, which appear in NRS Chapter 199, and they very specifically, even in the title of the statute, describe the action that is being criminalized.  For instance, [NRS 199.520] “Disclosure of information to subject of investigation,” or [NRS 199.530] “Notification of possible search or seizure.” 

 

The conceptual amendment is to suggest to the bill drafter that rather than use the terms, “hinder, delay, or obstruct,” the acts that would be considered as obstruction should be actually defined in this section of the bill.  Perhaps “define” is the wrong word, but actually be expressed in this section of the bill.

 

Assemblyman Horne:

What made this very difficult was that when you begin defining a term and make an itemization of actions, then you also begin to limit who you can bring into it.  Then the defense becomes, “If the act is not stated in the list, it doesn’t apply,” when it very well may.

 

Chairman Anderson:

I am happy I am not a bill drafter.  It would be nice to have those tight definitions, but I am not sure whether that can be done.  I know attorneys love to have words that are arguable.  As someone who used to negotiate words for contracts, I can well remember the terms one wanted to have included in contracts.  “Hinder, delay, or obstruct,” it seems to me, are terms that we may want to keep as they are currently.

 

Assemblyman Geddes:

In looking at Section 16 of A.B. 250, the section gives me heartburn.  I think there are steps that could clear up my concern.  The problem I see is, as an example, if Mr. Carpenter blocks a road and is taken to federal court, I want to go stand on the steps and defend him with my sign as he is being prosecuted under these provisions, but I don’t want to be prosecuted as well for doing so.

 

The section just seems so vague and seems to limit my free speech to defend someone who has committed an act, if he was brought up under this statute.  I think, as broad as the definitions are, they could easily charge Mr. Carpenter and I could easily be on the steps.

 

If there is any way to limit the terms “hinder, delay, or obstruct,” and ensure they are not limiting any First Amendment rights to express my feelings, I would prefer that.

 

Assemblyman Horne:

In Mr. Geddes’ hypothetical scenario, other language in the bill would prohibit you from being prosecuted.  When a person is exercising his or her rights and picketing on the steps of a federal courthouse or the like, even if you are being civilly disobedient in a sit-in, that would not fall under A.B. 250 because the intention is not there.  It doesn’t fall under the scope of the bill.  I think we addressed that earlier in the bill.

 

What I was particularly concerned about that does go into Section 16, subsection 4, where I broaden the definition of those entities that may come to someone’s defense in such a situation broader than just an attorney making a representation.

 

Assemblyman Geddes:

I think the first section covers the right of the individual to commit civil disobedience and it protects him in that aspect, but once the person has committed it and I am defending it through my form of protest, I think Section 16 limits that.  Following on your argument, if it is already protected, I don’t see why you need to make the amendments in Recommendation 11 to add the legal defense organizations, humanitarians, or those groups.  If it is already protected, there is no reason to put it there. 

 

I think we have similar concerns that it may not be covered.  My right for civil disobedience may be covered, but my right for protesting in support of Mr. Carpenter’s civil disobedience looks like it is limited under the bill.

 

Chairman Anderson:

Mr. Horne and I recently traveled to the wonderful city of Elko and saw the people standing on the courthouse steps delaying traffic on all sorts of issues.

 

Assemblywoman Buckley:

I can see why Mr. Horne is recommending this because it’s solely to obstruct with regard to the prosecution of a terrorist.  “Terrorism” and “an act of terrorism” have now been redefined solely with regard to “great bodily harm, death, substantial structural damage,” and it is so tight now that nothing Mr. Carpenter does falls into that category.

 

However, since we need to process A.B. 250 by tomorrow, we might want to simply delete the whole section.  Currently, we have accomplice liability, we have statutes with regard to what happens after a crime versus during a crime, and it seems to me, just to make the bill cleaner, I think it is tight enough and existing statutes also cover it.  My recommendation will be to not get hung up on this part and delete all of this section to be cleaner.

 

Chairman Anderson:

If I am to understand your suggestion, Ms. Buckley, it is to eliminate all of Section 16.  Mr. Horne, I know that was not one of the solutions you were reviewing at the time.

 

Assemblyman Carpenter:

I agree with Ms. Buckley’s suggestion.  In Section 16, subsection 3, it has the same language that was stricken by a previously proposed amendment.  I think that taking it out would be much better.

 

Assemblyman Geddes:

I think it would still cover Mr. Carpenter, because the moment he bulldozed the road and damaged that stream he would have caused severe damage on a natural resource and could easily fall under this statute.  I am happy with the amendment.

 

Chairman Anderson:

Then the suggestion we are currently dealing with is on page 10 of A.B. 250— we would be eliminating lines 5 through 23.  We would take out Section 15, subsection 4, and all of Section 16.

 

Recommendation 11 in Exhibit C would no longer be necessary either, since Section 16 is not there anymore.  [Assemblyman Horne concurred.]

 

Assemblyman Horne:

Recommendation 12 of Exhibit C would amend Section 18, subsection 2, on page 10, to read as follows: “Substantial deterioration or contamination,” similar to language in the earlier section.  [Chairman Anderson agreed.]

 

Recommendation 13, of Exhibit C would amend Section 21, subsection 5, on page 12.  Originally the language read, “a person may be prosecuted, convicted, and punished for a violation of this section whether or not…”  This is language that was already deleted in a previous section.

 

Chairman Anderson:

What are we deleting from Section 21?

 

Assemblyman Horne:

Page 12, lines 28 through 31. 

 

Chairman Anderson:

Problems for anybody?  [No response.]

 

Assemblyman Horne:

Recommendation 14 (Exhibit C) would amend Section 22, subsection 2, page 13, to revise the language in the provision so that there would be no need to include a “reasonable person” standard.  If you look at the original language, I found this to be vague and over-broad:

 

A person shall not knowingly develop, manufacture, produce, assemble, transfer, transport, acquire, retain, store, test, possess, deliver, disperse, release, discharge or use any substance, material or product that another person reasonably could believe is any weapon of mass destruction, any biological agent, chemical…   

 

That was placing the person’s act or crime onto someone else’s reasonable belief, so that a second person was the determining factor on whether or not the crime had been committed.  We were considering language such as, “or purports to be.”  I believe the subsection should be revised, but we could not come up with appropriate language.  I basically deleted lines 16 through 20, up to the words “delivery system.”

 

The new language for Section 22, subsection 2, would read:

A person shall not knowingly develop, manufacture, produce, assemble, transfer, transport, acquire, retain, store, test, possess, deliver, disperse, release, discharge or use any substance material with the intent to…

 

Chairman Anderson:

Where is the word “material”?  Is that added?  Is it on line 19?

 

Assemblyman Horne:

It is the first word on line 16.

 

Chairman Anderson:

The revision would begin at the word “or.”

 

Assemblyman Horne:

We would begin at the word “or” all the way down to line 20, to the word “system.”

 

Assemblyman Brown:

I think this is patterned after the language we were discussing in Section 15, which had the word “knowingly,” but subsequently with intent verbiage.  I am not sure; you still have to do these things “knowingly” and with the intent to “injure, intimidate, frighten,” and so forth.  We have that factor that places the burden of intent on the individual.  I think that is our safety outlet.

 

Chairman Anderson:

Are you arguing that there is no need to delete those lines?

 

Assemblyman Brown:

I think essentially that is what I am arguing, because all those actions must be undertaken “knowingly and with the intent” to have as the object of your action, “injury, intimidation,” and so on.

 

Assemblyman Carpenter:

This section really bothers me.  The portion that disturbs me is the words “whether or not.”  It seems to me that someone can use his or her opinion of the action [to determine] whether something actually happened or not.  I don’t know in what context it is being used now, but the whole situation bothers me.

 

Chairman Anderson:

It does broaden it to include Mr. Geddes’ chemical closet in his garage used to conduct science experiments for the kids.  In listening to Mr. Brown’s argument, he would argue that he is protected by Section 15 of the bill because of the words, “knowingly and with intent.”  I am not positive [that is correct].

 

Assemblyman Horne:

Just one of the things that came to me when Ms. Christenson and I were discussing Section 22 is that, if I rob a bank with a fake bomb and I am subsequently arrested, am I a terrorist?  I can do all these things “with the intent to injure, intimidate, and frighten.”  A reasonable person could believe that I have a weapon of mass destruction.  I kept going back to the scope of defendants the bill would be applied to and whether the hypothetical bank robber would fall into that.  That is what caused me concern.

 

Chairman Anderson:

It is whether or not you knowingly create these things with the intent to intimidate.

 

Assemblyman Horne:

I can do all of those things to intimidate, but if another person reasonably believes I have a weapon of mass destruction, whether or not it is, I am now a terrorist.

 

Assemblywoman Buckley:

I suggest we delete Section 22.  If we look at NRS 202.448, existing law, it is cleaner when you look at, in the statute as it exists,  “A person shall not… knowingly make any threat or convey any false information concerning the presence…of a biological agent or toxin with the intent to“ and the same four things are listed.  That is existing law.

 

I know what the intent was—you’re making something and another person believes that is a weapon of mass destruction when you are intending those things for another purpose.  I think a good prosecutor can prosecute it under the existing false information statutes.  We are mucking up a good bill by clouding the issue, when I really do think that false information under the current statute covers it.  Therefore, I recommend deletion of it.

 

Chairman Anderson:

You are recommending deletion of all of Section 22?

 

Assemblywoman Buckley:

Yes, of the new language.

 

Chairman Anderson:

Deletion of the new language in Section 22.

 

Assemblywoman Buckley:

We could retain the new language in Section 22, subsection 1.  However, all new language in subsection 2 should be deleted.  Otherwise, keep the existing law.

 

Chairman Anderson:

Do you also suggest retention of the old language in Section 22, subsection 3 [shown as deleted in A.B. 250, page 13, lines 39 through 45, and page 14, lines 1 through 9]—“oral, written or electronic…”?  [Ms. Buckley agreed.]  And what about subsections 4 and 5, on page 14?

 

Assemblywoman Buckley:

I think the portion giving us trouble is Section 22, subsection 2, and if that were deleted the remaining language would be acceptable.

 

Chairman Anderson:

Do you then wish us to retain the language on lines 39 through 44 also?  “Oral, written, or electronic communication includes.”

 

Assemblyman Horne:

That should be deleted as it is shown.  Section 22, subsection 4, on page 14, has already been deleted elsewhere in A.B. 250.

 

Chairman Anderson:

So we are merely taking out the new language suggested at page 13, Section 22, subsection 2 only.

 

Assemblyman Horne:

That is correct – lines 13 through 33.

 

Chairman Anderson:

We are also going to amend the statute by removing the existing language and add in the new subsections 4 and 5 to Section 22.  Is that correct?

 

Assemblyman Carpenter:

I thought we would also be deleting Section 22, subsection 4, on page 14, because we have deleted it before in all the other sections. [Chairman Anderson concurred.]  I certainly agree with [deleting Section 22, subsection 2] because on page 13, Section 22, subsection 2(d), it touches on Mr. Geddes’ and my civil unrest.

 

Chairman Anderson:

[Referring to Section 22, subsection 5], “The provisions of this section do not apply to any act that is committed in a lawful manner and in the course of a lawful business, event, or activity.”  So that allows Assemblyman Geddes to keep his home chemical operation.

 

Ms. Lang, how are we doing?  Are you keeping track of all these changes?  That completes Section 22 of A.B. 250, and brings us to the end of the document. 

 

Assemblyman Mortenson:

Could we revisit the definition of “terrorism” in Section 7?  Using Mr. Carpenter as an example again, “An act of terrorism means any act that involves the…attempted use of sabotage, [or] extortion or violence…”  Mr. Carpenter did none of those, but maybe he did attempt sabotage, and then it goes down to “…with the intent of impairment of the environment.”

 

Chairman Anderson:

[Reading the proposed amended definition of “terrorism”]

 

“Act of terrorism” is any act that involves the use or attempted use of sabotage, extortion or violence, which is intended to cause great bodily harm or death to the general population, or substantial structural damage to any public or private building, or the substantial destruction, contamination, or impairment of:

 

1. Public or private infrastructures . . .

2. Any natural resources or the environment.

 

Assemblyman Mortenson:

Regarding the phrase, “impairment of…the environment,” it seems like mining or logging could impair the environment.

 

Chairman Anderson:

Driving over the road in a truck is an impairment of the environment to some.

 

Assemblyman Horne:

One has to read that along with the phrase, “attempted use of sabotage, extortion, or violence.”

 

Assemblyman Mortenson:

Could it be interpreted that Mr. Carpenter attempted to sabotage the road?

 

Chairman Anderson:

I don’t actually think Mr. Carpenter’s intent was to sabotage the road so it could not be used, but rather that it could be used.  The disagreement rested with whether it should be used or not used. 

 

Assemblyman Mortenson:

I guess there was no intention to block the stream.

 

Chairman Anderson:

One group of people maintains that the use of that road would create an impairment issue.

Assemblyman Mortenson:

“Impairment” is the word I dislike because it is so innocuous.  The words “destruction” and “contamination” are really strong, but “impairment” seems innocuous, and it is preceded by the word “or.”

 

Chairman Anderson:

So what you would like to see in the definition is to place the colon at the end of the word “contamination”?

 

Assemblyman Mortenson:

Leave the words, “destruction” and “contamination” but remove “impairment.”

 

Chairman Anderson:

I believe the word “impairment” needs to remain, but we need to take a broader view of the way this section would be utilized under a terrorist act.  Phone lines could be contaminated if a bug was placed into it, or a computer system could be contaminated by creating an electronic virus.

 

Assemblyman Brown:

I struggled somewhat with the natural resources provisions of Section 7.  The portion I keep coming back to, and I mentioned this in a prior hearing, is that I feel the instrumentality of a terrorist ultimately is to harm to the general public.  The first portion of the section states, “cause great bodily harm or death to the general population.”  I also believe that “the substantial destruction, contamination, or impairment of the public or private infrastructures, …[and] natural resources…” has as its object, “substantial harm to the general public.”  I am wondering if we can amend to include that type of language.

 

For instance, this may not be an example you want to use, but there was a firefighter in the state of Arizona who was concerned about his employment and he lit a fire and created massive destruction.  Some people may say, “Let’s nail him as a terrorist.”  That certainly wasn’t his intent, but it did include substantial destruction of natural resources.  I don’t think his object was “substantial harm to the general public,” however.  I keep coming back to the object of the person’s actions.

 

Chairman Anderson:

What happens when someone purposely contaminates a well or a stream that is providing major water sources to a community?  If that is not an act of terrorism, how would you be able to prosecute them for those actions? 

 

I guess it is the purpose of the action that would have to be reviewed and comes back to the “knowingly and intentionally” language that the state would have to prove in order to prosecute.  The state would like to prosecute both of them, the person who set the fire and the person who poisoned the well.  The question is, where is the state going to find the strongest statute to pursue prosecution because the public is harmed by both acts?  Regardless of whether one was only concerned about his job, it still took the people’s resources and lost the watershed.

 

I am not uncomfortable with the definition as it stands.

 

Assemblyman Brown:

I am far more comfortable with this definition than the one that existed previously.

 

Chairman Anderson:

Do we need to clarify “extortion” and “private infrastructure”?

 

Assemblyman Horne:

We can add the definition.  We did use the definition of “extortion” that was in statute in determining whether or not that would fit well in place of “fear.”  Ms. Christenson, do you recall the exact discussion?

 

Danielle Christenson:

Assemblyman Horne reviewed the following statutes:

 

·        NRS 205.320, which speaks of threats

·        NRS 205.322, which speaks of extortion at collection of debt

·        NRS 197.170, which speaks to extortion by a public officer or employee

·        NRS 199.460, which speaks to extortion of confession, refusing accused communication with attorney or friend

 

[After reviewing these statutes], Assemblyman Horne was convinced in his own mind that “fear” was too general a term and “extortion” was a more specific term as used throughout our statutes.  It did seem to fit well with the concept of a definition of “act of terrorism.”

 

Chairman Anderson:

Looking at NRS 205.320 and the other citations you have given us, how does that “extortion” cause great bodily harm or damage?

 

Danielle Christenson:

Particularly, in NRS 205.320, we have an intentional reference in statute; I don’t think I should read throughout the entire statute.  “A person who, with the intent to extort…or to influence the action of any public officer, or to do or abet or procure any illegal or wrongful act, whether or not the purpose is accomplished...”  That seemed like extortion from a sense of a terrorist wanting to influence the action of any public officer or procure any illegal or wrongful act.

 

Chairman Anderson:

Do we need to define “private infrastructure”?  When we state “private infrastructure,” what are we thinking of?  Are we talking about someone’s private well, or what?

 

Assemblyman Horne:

Regarding “private infrastructure,” before we had just “public [infrastructure].”  I was thinking of various private entities.  I know we already express both public and private utilities, as well. 

 

Danielle Christenson:

There are private infrastructures that provide public services, so Assemblyman Horne’s thought was to ensure that not only public infrastructure, but also private infrastructure that may supply public services would be covered under this definition.

 

Chairman Anderson:

Let’s see if we can move.  [Summarized the recommendations.]

 

·        Adopt Recommendation 1 of Exhibit C, which is the definition as rewritten.

·        Accept Recommendation 2, relative to Section 7, of extortion and its application to public or private.

·        With some level of reluctance, accept the Recommendation [2] to “any natural resource or the environment.”

·        Accept Recommendation 3, in Section 8, adding “contamination of food.”

·        Section 10, suggestions for drafting to consider.

·        Suggest some change in language under Recommendation 5, in Section 11, to move from “modem” to “system or network.”

·        Recommendation 6, add the “contamination of food” [to Section 12.]

·        Accept Recommendation 7, [Section 13], to mean “a person who intentionally commits or causes.”

·        In Section 10, [Recommendation 4], we will also drop “or supports.”

·        Recommendation 9, delete in Section 15, subsection 4.

·        Recommendation 10, remove the entirety of Section 16, which means that Recommendation 11 becomes unnecessary.

·        Recommendation 12, [Section 18], adding “or contaminated food” was accepted.

·        Section 21, Recommendation 13, concerning double jeopardy, delete subsection 5.

·        Section 22, delete subsections 2 and 4 in their entirety.

 

Danielle Christenson:

Could you please speak to Recommendation 8?

 

Chairman Anderson:

We are holding onto the terms “knowingly or intentionally”?

 

Danielle Christenson:

It is not clear to me if “knowingly” is going to remain in the original language, or whether “knowingly” will be stricken and only the term “intentionally” will appear.

 

Chairman Anderson:

We are only holding onto the term, “intentionally”?

 

Assemblyman Horne:

We are keeping both “knowingly” and “intentionally” in that one spot.  In Section 15 we are retaining “knowingly” with “or intentionally,” because we were talking about an act in that portion.

 

Chairman Anderson:

We are keeping “knowingly and intentionally” in Section 15, is that correct?

 

Assemblyman Horne:

That is correct, Mr. Chairman.

 

Danielle Christenson:

Thank you, Mr. Chairman.

 

ASSEMBLYMAN HORNE MOVED TO AMEND AND DO PASS
A.B. 250 WITH THE SUGGESTED AMENDMENTS.

 

ASSEMBLYWOMAN BUCKLEY SECONDED THE MOTION.

 

Chairman Anderson:

Are there any questions or remaining concerns?

Assemblyman Claborn:

I will abstain on this vote today.  I want to make sure that we do not infringe on someone’s rights.  This is a very important piece of legislation.

 

Assemblyman Mabey:

In my review of the bill, it reminds me of using a brand-new medication that has only been used a few times.  I hope it works and doesn’t cause intentional harm.  I have some concerns, but I will support the measure.

 

Chairman Anderson:

That is a very good analogy.  Some of us believe we already have in the statutes, while others doubt whether additional statutes are necessary.  We want to ensure we do not overreact to the problems of terrorism and, in so doing, deprive ourselves of the great gifts of freedom that we have.  We must be very careful and cautious as we move along and I appreciate your sentiments.

 

Assemblywoman Ohrenschall:

I applaud Mr. Horne for his hard work.  It is obvious that a lot of thought went into the recommendations, but I would like the opportunity to reflect on it a little more so I think I will follow Mr. Claborn’s example and abstain at this time.  I want to be sure we are not accidentally impinging on constitutional rights that should not be.

 

Chairman Anderson:

I can appreciate that.  Might I suggest to both you and Mr. Claborn, depending on the number of abstentions we get, if we fail to get the bill out of Committee, we will in essence kill the bill.  I think we need to be cautious relative to the opportunity to review it; I think there will be some opportunity to do so.

 

If it is the pleasure of the Committee, I can make some other suggestions.

 

Assemblyman Gustavson:

I echo your sentiments and I believe what we have done is a good work.  I know there are many other laws and I don’t want to duplicate our laws because we are dealing with a terrorist in this bill.  I am not going to abstain at this time, but after I review the bill, if we have any questions, I might have a difference of opinion.  I believe what we have done so far is good, so I will be supporting it at this time.

 

Assemblywoman Buckley:

I think that, with the work of Speaker Perkins, Assemblyman Horne, and now this Committee and this work session, we have done a really good job to try to target those who might continue this war that we are now facing and that we have never seen before.  I agree with my colleague, Dr. Mabey, that we will have to monitor this.  If terrorism legislation is used in any way for garden-variety crimes we will need to revisit it again in the next session.

 

I think with the preamble, the tightening of the language, and with our intent being clear that this bill will only be used for its intent.  The best possible result would be if the provisions of the bill never have to be used because we would never have to face these encounters in our state.  If we do, we would feel remiss that we did not visit this issue very carefully and put some laws in our books to clearly point to tough legislation holding people accountable for acts of terror.

 

Assemblyman Carpenter:

I echo the sentiments of all the members of this Committee.  We need to be really careful when we are dealing in areas of people’s freedoms.  But I think that with Assemblyman Horne’s work product and the portions that were eliminated during this work session, the bill is something we can let move on.  The issue will probably be revisited every legislative session, especially if terrorism does continue in this country.

 

Assemblyman Brown:

The center of this bill’s universe is the definition section.  That was the section I had the most concern with.  I particularly mentioned the references to government.  We absolutely have to have the rights to express ourselves, and many times that is exercised as it relates to our feelings toward our government.  I am greatly heartened by the amendments to that section of the bill and am happy to move forward with it today.

 

Assemblyman Claborn:

I have no intentions of trying to kill A.B. 250, and I do not want to take a chance of not seeing the bill go through.  Therefore I will be voting in the affirmative on this measure.

 

Chairman Anderson:

It was not my intention to have you change your vote.  You are surely entitled to abstain from the vote.  I was going to suggest that after the amendments come forward and the bill goes to the Floor of the Assembly, I will suggest to the Speaker that there is a possibility we may want to move it to the Chief Clerk’s desk for one day to ensure there is sufficient amount of time for all the members to read the bill in its amended form.  It is rather worrisome to see a bill go to the Chief Clerk’s desk, especially when we are working under such tight timelines in the next couple of weeks.  Hopefully we will get the bill out without too much trouble.  That will be my intention, depending on how close we are to the deadline when the bill comes out of drafting.

 

Assemblyman Claborn:

Of course, I don’t know how the Committee will vote until the vote is taken.  I don’t want to take a chance of not seeing A.B. 250 go to the Floor of the Assembly.

 

Assemblyman Oceguera:

I would just like to congratulate and tell Mr. Horne that we appreciate his work.  I know that he put in many hours until late at night on this bill, and if he did that, the Research Division of the Legislative Counsel Bureau put in twice that many.  I would also like to thank the Research staff for their work.  This was probably one of the two most comprehensive bills we have seen.

 

Assemblywoman Ohrenschall:

With the Chair’s indulgence, may I suggest a 15-minute recess to allow Assemblyman Claborn and myself the opportunity to achieve the comfort level we would like to have?  Assembly Bill 250 is basically a very fine bill and I want to vote for it.  I just need a few minutes to ensure that I really assimilated all the changes we have made.  It would help me tremendously; I am not against the bill and then we could get it out of the way.  Even a 10-minute break would do it.

 

Chairman Anderson:

There is still more work to do before Committee in this work session.  Assemblywoman Ohrenschall, if you wish to abstain from the bill that is your right.  Let me try to see if we can’t move the bill through the Committee and if you wish to come back later and change your vote, I will allow you to do so.

 

Assemblywoman Ohrenschall:

In that case, I will be voting for the bill because overall, it is a good piece of legislation.

 

Chairman Anderson:

[Chairman Anderson called for the vote.]

 

THE MOTION CARRIED UNANIMOUSLY.

 

I will ask Speaker Perkins if he would like to present his bill on the Floor of the Assembly.  Assemblyman Horne, would you please stand as his backup?  We will take a 10-minute break [at 9:35 a.m.].

Chairman Anderson:

[Reconvened the meeting at 9:53 a.m.]  Let’s take a look at A.B. 441. 

 

Assembly Bill 441:  Enacts provisions relating to ensuring security of State of Nevada and its residents with respect to acts of terrorism and related emergencies. (BDR 19-1139)

 

Allison Combs:

As you noted, Assemblyman Horne also worked to coordinate the amendments to A.B. 441.  This bill relates to ensuring the security of the state of Nevada and its residents with regard to acts of terrorism and related emergencies.  It is more civil in nature related to homeland security.  Within the Work Session Document (Exhibit C) is a compilation of amendments developed by Mr. Horne (pages 10-19).  I will defer to him to take you through the amendments.

 

Chairman Anderson:

Mr. Horne, this is the second half of the thankless task you were assigned and everyone appreciates your hard work.  Ms. Christenson, we appreciate your hard work here, as well.  We are looking forward to our discussion on A.B. 441, recognizing that it is a document twice the length of the last one.

 

Danielle Christenson:

I need to bring to the Committee’s attention that there is a typographical error in the Work Session Document (Exhibit C).  It appears on page 9 [green sheets], at Recommendation 22.  It should read line 39 instead of line 35.

Chairman Anderson:

It does not begin on page 21, but on page 23 [of the bill]?

 

Danielle Christenson:

You are correct, Mr. Chairman.

 

Chairman Anderson:

I am sure you will remind us again when we come to that section, so that everyone is on the same page.

 

Assemblyman Horne:

Assembly Bill 441 might be called the “sister” bill to A.B. 250.  Some of the language that we used in A.B. 250 was also used in amendments to A.B. 441.

 

Recommendation 1 would amend Section 2, subsection 6(d), on page 2 of the bill. 

 

Chairman Anderson:

Have you merely added language to identify those law enforcement agencies with which you are trying to promote communication?

 

Assemblyman Horne:

That is correct—state, local, and federal.

 

Recommendation 2 would amend Section 5, on page 3 of the bill.

 

Chairman Anderson:

Was your concern in Recommendation 1 that the need for communication wasn’t understood?

 

Assemblyman Horne:

That was correct.  Among law enforcement and other responders, I just wanted to make it clear.  What we are talking about here is that all federal, state, and local law enforcement would be involved in such an event.

 

Michael Hillerby, Deputy Chief of Staff, Office of the Governor:

[Introduced himself.]  I just wanted to pose a question as we move from Recommendation 1 to Recommendation 2.  The Office of the Governor had raised a question on Section 3 of the bill and the intent of that section.  More importantly, were there any unintended consequences that sections of the new bill might have on existing public health laws, existing emergency laws, or laws governing public employees?  [We are] just not sure.  There is some case law and Attorney General’s opinions that clarify that local statute is not considered a law.  We were unsure of the purpose of Section 3 of A.B. 441.  We understood that the Legal Division had done some research on that point.

 

Danielle Christenson:

To clarify Mr. Hillerby’s concern, it is Section 3 of the bill, starting on line 3, page 3.  Mr. Hillerby’s proposal was that the section should be stricken from the bill.  Mr. Horne and I recognized that proposal and the different amendments provided by Mr. Hillerby.  However, we determined to reject that proposal and retain Section 3.  I believe Mr. Horne shared that determination with Speaker Perkins, as well.

 

Chairman Anderson:

Mr. Hillerby, are you of the opinion that our legal staff holds a different point of view?

Michael Hillerby:

Not necessarily.  We had really intended to simply raise the question.  The reason we got involved from our office was to neither bombard the Speaker nor your Committee with a variety of agencies talking about all these sections of the bill that involved homeland security.  We wanted to ensure there were no unintended consequences that might influence our long-standing, existing statutes on public health, emergency powers, and how those functions are accomplished.  If that question has been answered, we will not push the notion of deleting that section.  It was more of a question.

 

Chairman Anderson:

Is it not your hope that the homeland security agencies within the state, when working with local government entities indicate that there is some need for particular regulations to be modified in order to meet that requirement?  Would that section of the law not give them some preemption to do that?

 

Michael Hillerby:

Yes.  What we will do in the meantime, I know there are come time constraints, I will ask our counsel to review that section and if there are further concerns we will bring them up with the sponsor of the bill.  If not, we won’t talk about it again.

 

Assemblyman Horne:

When Ms. Christenson and I were reviewing the bill and proposed amendments, we had no explanation as to why the Office of the Governor had requested deletion of Section 3 of the bill.  We saw that it was deleted.  Under the context of the bill and the circumstances in which it would be applied, we said it would apply so we left it in the bill.

 

Chairman Anderson:

A response to Mr. Hillerby or Mr. Horne on either Recommendation 2 or Section 3?

 

Assemblyman Carpenter:

I have some questions on Section 3, where it said,  “The provisions of this chapter supersede and preempt any other state statutes…” and that language concerns me.  I am concerned about just how far we can go in the name of terrorism unless somebody can give me a better answer as to why we need that in the bill.

 

Chairman Anderson:

Mr. Horne, was it Speaker’s strong feeling that Section 3 was needed?

 

Assemblyman Horne:

No, it was not expressed as having to be included.  I moved to keep it in the bill on the grounds of my previous response because the section deals with times of emergency, particularly those of a terrorist nature.  The Governor’s power exists to expand in such situations.  As you alluded to earlier, when such situations occur there will be modifications of laws and procedures and which agency is going to be in control.  That is addressed in Section 3 of A.B. 441.

 

Assemblyman Brown:

I passed right over this the first time I reviewed the bill.  I am certainly glad that issues regarding Section 3 were raised.  Now that I look at it again, I wonder what really could be the breadth of this in terms of impact.  I feel there is a significant unknown that casts a shadow over this.  I know we don’t have much time to see what kind of impact this may have on various agencies.

 

Assemblywoman Buckley:

The specific always governs the general; it’s a general rule of statutory construction.  For example, if there were two provisions on how existing state government would work, yet there is another statute that says, “In the case of an emergency, it should work this way,” that specific statute would govern. 

 

I think this section is just attempting to state that in case there is any confusion.  It is also intended to govern local ordinances as well; however, state law always trumps local ordinances anyway.  The section is simply codifying current practice; I think we could delete this section if it raises concerns.  However, as Mr. Horne indicated, it is simply trying to set what the pecking order is.  In the end, I don’t think it matters much because that is the current pecking order.

 

Assemblyman Gustavson:

I also had serious concerns about Section 3 and I appreciate Ms. Buckley’s explanation of that.  If this is already codified in law, I think it would be best if the section were deleted.  I would feel more comfortable.

 

Assemblyman Carpenter:

It would be my feeling that unless we delete that section, there would need to be some modifications.  Maybe that comes through the rest of the reading of the bill.  It [appears] pretty broad.  If I don’t understand everything that Ms. Buckley does, it is hard to explain to the person on the street.

 

Chairman Anderson:

If I understood Assemblywoman Buckley correctly, Section 3 merely restates the reality of the law in terms of the pecking order and deleting it would do no substantial damage.  If it were left in, it would be in one place and clearly articulated for purposes of the bill.  Why don’t we move forward with Mr. Horne’s suggestions? 

 

Assemblyman Horne:

Recommendation 2 addresses the definition of an “act of terrorism,” which we discussed earlier under A.B. 250.  This bill contains the same language.

 

Recommendation 3 pertains to Section 10, page 3 [of the bill], which would be amended to include the [Nevada] National Guard as a response agency under the provision.  The amendment was proposed by the Governor.  There were questions on whether or not the term “military” should be used because “[Nevada] National Guard” may be too narrow.  The Governor is the Commander-in-Chief of the [Nevada] National Guard, so I believe it is appropriate.

 

Recommendation 4 inserts a new section between existing Sections 10 and 11 on page 4 [of the bill], and subsequent sections would need to be renumbered.  The new section would read as follows:

 

Section 11. “System of communication” means, without limitation, public safety radio systems and telecommunication systems.

 

This new language was proposed by Denice Miller, an attorney, and a client, as the term appears in a few sections of the bill.

 

Chairman Anderson:

This would be creating a new section between Sections 10 and 11, so the bill would address response agencies and then their system of communications would be next?  Then the remaining sections would be renumbered.

 

Assemblyman Horne:

That is correct, Mr. Chairman.  The term “system of communication” is used a few times in the bill and we believed a definition of the term was needed.

 

Chairman Anderson:

In using the term “system of communication,” do we not have a definition in current law?

 

Risa Lang:

When no definition is provided for a term, it is given its ordinary definition in drafting.  I think initially the drafters believed it would encompass any type of system of communication, but it is not a problem to give some examples, which is what they are trying to do here, without being an inclusive list.

 

Assemblyman Horne:

Recommendation 5 relates to Section 11, on page 4 [of the bill].  This was proposed by the Office of the Governor to include pipelines within the definition of “utility” in this provision.

 

Recommendation 6 amends Section 11, subsection 2 on page 4 [of the bill], by adding a new paragraph (e) to read as follows: “A water facility that is regulated by the Environmental Protection Agency.”

 

Recommendation 7 amends Section 12, [subsection 1,] starting on page 4 [of the bill], to read, “The Nevada Commission on Homeland Security, consisting of a Chairman and at least 14 or more members…”  This amendment was proposed by the Office of the Governor, as well.  We changed that by adding after the words “consisting of,” the words, “a Chairman and at least 14 or more members.” 

 

In subsection 2, subparts (a) and (b) were deleted so that Section 12, subsection 2 would read:  “The Senate Majority Leader shall appoint two members of the Commission, both of whom shall be members of the Senate;” 

 

[A similar change is made to] subsection 3, [so it] would read: “The Speaker of the Assembly shall appoint two members to the Commission, both of whom shall be members of the Assembly;”

 

The word “voting” was eliminated because the specified members are already considered voting members, so that word was not needed.

 

Chairman Anderson:

Perhaps you or Mr. Hillerby could provide the Committee with some justification as to why the increase of two members were needed, given the fact that the Senate was only going to have one active member and one person from law enforcement, and the Assembly was going to have only one member and someone actively from the field.

 

Michael Hillerby:

We struggled with exactly how to do this and the reason is this: at any given time, the Homeland Security Commission may need to deal with a very specific issue that requires a significant amount of expertise from different areas.

 

I don’t mean to jump ahead; one reason was to change the terms of the members of the Commission.  For example, one of the Commission’s early duties is clearly going to be, if A.B. 441 passes, the discussion of a statewide communication system that allows interoperability and other goals of the sponsor, which is very important to everyone who is involved in state and local government.  We may need to pull people on and off that Commission or perhaps appoint subcommittees.  We are not sure what the structure will be because there may be a need for expertise on communication systems in the first 9 to 12 months of the existence of the Commission.  We may need to do something else later on. 

 

We wanted to ensure that flexibility to call upon the necessary committee members was available.  We are not concerned whether that would be a subcommittee process or something else.  Terms were a consideration because the members of the Commission would be appointed by virtue of their jobs in the private sector, or local, state, or federal government.

 

There is no attachment to any particular way this was written.  We wanted to ensure that there was that flexibility to get those people on the Commission and working with them in the areas of expertise the Commission needed at any given time.

 

Chairman Anderson:

They have a term of office of one year.

 

Michael Hillerby:

The term of office for the Chairman would be one year.  We had suggested removing any reference to the term of office for gubernatorial appointees for the very reasons I just mentioned.  Again, not to jump ahead, but the last section of the bill did go back and pick up that the initial appointment was 3 years and because those people will be serving by virtue of the jobs they are in, I don’t think it makes any sense for there to be an actual term listed in the bill itself or in the law.

 

Those people would be appointed by and serve at the pleasure of the Governor.  For example, we would almost always have a representative from the [Nevada] National Guard, whether it was the Adjutant General or his designee, the Division of Emergency Management, and certain others.  Other people would arrive and leave as members of the Commission as it focused on specific areas of expertise or as they potentially change jobs.

 

Chairman Anderson:

I believe I read in Section 13 where that will not be true in terms of their length of office.  It states, “The term of office for each…member…who is not a legislator is 3 years…”

 

In Section 12, it appears we are moving from who is appointing the members to whom the Governor should select to serve on this kind of a Commission.  Rather than diluting the Governor’s power of appointment, it is being broadened by not stating the appointment must be on the recommendation of one of the other subgroups.  Is that a fair statement?

 

Michael Hillerby:

Clearly, a great deal of guidance for this or any future Governor in this position is going to come from the Commission itself and the events that are going on around that.  As the needs of that Commission or the job in front of them changes, those appointees may change over time.

 

I apologize that we could not draft more definitive language in the time we had to talk about the idea of adjunct committees, subcommittees, I don’t know what we call them, to capture that concept.  We are not particularly concerned about how that is done.  The concern was that the Commission have the flexibility, essentially through the appointments made by the Governor or the Legislature, to change the nature of the people who are serving and by nature of the jobs those members hold.

 

Assemblyman Geddes:

I wanted to throw a couple on the list based on the conversation we had regarding A.B. 250.  We have [the category of] “natural resources” [specified] in the bill quite a bit.  I would recommend placing a position on the Commission from “natural resources” as well because I am not sure “agriculture” would cover that in either A.B. 250 or A.B. 441.

 

Additionally, one thing that seems to have fallen out of A.B. 441 was trying to find those people who had expertise in nuclear, biological, and chemical agents.  I think that would be a valuable asset to the Commission, so that people would have comprehension of what they are dealing with—how agents would react and move in the environment—when they are looking at how law enforcement, firefighting, and public health would respond.  I would suggest those two categories to be placed in either bill as well.

 

Assemblyman Horne:

I too, was curious about that, and perhaps I made an assumption that the possible expertise would exist in a member of the Nevada National Guard since they are a segment of the military.  I know training has begun for all military individuals in that very area.  I do not know if any of the Nevada National Guard has been sent through that training.

Michael Hillerby:

That is an answer I can get for you.  I don’t know specifically.  I also make the assumption that many of them have, and I am almost certain, but I would want General Vanderhoof, [Adjutant General of Nevada], to answer that question.  The specific list was not intended to be all-inclusive or exclusive of anyone.  We are happy with any changes that follow the concept of having the right people on the Commission.

 

Assemblyman Buckley:

I am comfortable with the list as it is and I think Speaker [Perkins] and Mr. Horne spent a great deal of time on this.  There is nothing to prohibit advisory members.  There is nothing to prohibit presentations.  There is nothing prohibiting an expert in bioterrorism or nuclear medicine…there is nothing to prohibit any of those things.  We do those all the time with the legislative body and that’s the way this would work also.  I think we are picking this thing to death; and if we don’t move on, we are never going to get finished.

 

Assemblyman Horne:

In Section 12, subsection 5, we deleted “The Governor or his designee is a nonvoting member of the Commission.”  The Governor or his designee should serve as Chairman of the Commission.  The Governor believed that [position] should also be a voting member and I saw no reason to object to that.

 

In Section 12, subsection 6, the word “voting” was removed for consistency.

 

Recommendation 8 addresses Section 13, subsection 2, on page 5 of the bill.  The voting language would be removed and also remove the language stating ”except that no voting member may serve for any part of more than two consecutive terms.”  That has already been discussed by Mr. Hillerby.

 

Chairman Anderson:

“The term of office for each member of the Commission…”  Are they not eligible for reappointment now?  [With this change, there will be] no limit on the number of times they can be reappointed.

 

Michael Hillerby:

I was just looking at the amendment we submitted and I am not sure it was clear.  We did not indicate, as we should have, that beginning on page 5 of A.B. 441, Section 13, subsection 2, line 11, our recommendation was that the first sentence be deleted.  Again, those members serve at the pleasure of the Governor, because they are members by virtue of their jobs.  As that changes, different members may necessarily be changed by virtue of the jobs they hold.  Emergency Management, the [Nevada] National Guard, or local law enforcement officials may change positions.  We suggest lines 11 through the end of line 13 be removed.

 

Assemblyman Horne:

I was under the impression that would deplete the brain trust or the purpose of the Commission.  People would start to develop expertise in the position and term limits would then require they must be replaced.  It would be unfortunate and could undermine the Commission’s work.

 

Michael Hillerby:

We agree, and for the same reason we will probably always have the head of the Nevada National Guard, Division of Emergency Management, and some other kinds of positions on this Commission, so it makes no sense to impose a term limit on someone who essentially must be there to abide by other federal laws and act as liaisons with other federal agencies.  The funding sources for much of this is derived through those agencies and makes no sense to terminate their service on the Commission artificially.

 

Chairman Anderson:

The Legal Division of LCB has informed me that we cannot have legislators and the Governor as voting members because we would be violating the separation of power concept.  Ms. Lang, you need to clarify that statement for the Committee.

 

Risa Lang:

That was why A.B. 441 originally specified the Governor as a non-voting member.  If this Commission serves in a totally advisory capacity it may be OK, but otherwise having the two bodies as voting members would violate the separation of powers provisions.

 

Assemblyman Carpenter:

It seems to me that you need a nucleus of the Commission that is there at all times that understands the problems and then call on other experts required to form subcommittees or something.  Otherwise, these people won’t know whether they are going to be on the Commission from one meeting until the next.  Expertise and continuity is most important in a commission such as this.

 

Assemblyman Horne:

I believe Ms. Buckley covered that earlier when she stated there is no prohibition of this Commission having the ability to assign subcommittees or bring in experts for advisory purposes.

Assemblywoman Buckley:

As a practical matter, if the head of the Nevada National Guard changes, all the Governor has to do is to say, “In this particular case, it might make more sense to have the new head as the appointed position.  The former head could remain in an advisory capacity.  There is nothing to prohibit that.  I think we are OK here.

 

Michael Hillerby:

I’m sorry; I just want to be clear here.  Is that leaving the term limits in or not?

 

Assemblywoman Buckley:

If I understand Mr. Horne, the term limits stay in the bill so there can be a functioning committee.  Is that correct?

 

Assemblyman Horne:

Are we talking about the first subsection of Section 13?

 

Assemblywoman Buckley:

I didn’t have a problem with that.

 

Chairman Anderson:

I don’t believe Mr. Hillerby did either.  The question is at Section 13, subsection 2, lines 11 through 13, that Mr. Hillerby is talking about.  The other Section 12, subsection 4(a) through 4(l) group that is appointed by the Governor…is that consistent with other Governor’s appointments—they are all at the pleasure of the Governor?  Aren’t some of those specific to terms?

 

Michael Hillerby:

Most positions have specific terms.  Because this Commission in A.B. 441 would have so many members serving by virtue of their state and local government jobs, this is somewhat different than most of the advisory boards and commission, or any of the regulatory boards and commissions, because they do not have people sitting on there by virtue of their public employment jobs, [such as] again, the head of the Nevada National Guard or the Division of Emergency Management, and other examples.

 

There are some boards and commissions that have term limits on the number of times you can be reappointed.  Most do not have specific references to term limits that I am aware of.  The length of the term is specified fairly frequently in statute for those boards and commissions.

 

Assemblywoman Buckley:

I propose we go with Mr. Horne’s suggestion and offer that if someone did leave and the Governor, who is going to chair the Commission, thinks it would be better for the new person to come in and the former head to become part of an advisory committee, I feel it is okay and would serve all purposes recognizing that would be the reality.

 

Chairman Anderson:

But we cannot allow the Governor or his designee to be a voting member without violating the separation of powers.

 

Assemblywoman Buckley:

I was only speaking to term limits.

 

Assemblyman Horne:

That had not occurred to me.

 

Michael Hillerby:

As the Speaker talked about in his initial testimony on A.B. 441, with one exception I am aware of, all of the Commission’s activities are assessing, examining, and making recommendations.  The only exception is Section 17, subsection 5, where it talks about the communications plan stating: “…the Commission shall establish a state plan…”  There are two ways to go about this.  We can either deal with the issue of whether the legislators or the Governor are going to be non-voting members, or do we change that specific language and say that the communications plan in Section 17 is recommended by the Commission and adopted by someone else to get around the constitutional question.

 

We certainly do not want to stand in the way of the fact that the bill must be moved out of the Committee by sometime late tomorrow.  We will happily continue to work on that in the Assembly Committee on Ways and Means as a fiscal note or on the other side of the house.  I think the intent is clear; we have had very good conversations with the Speaker and our agencies—and we are all working together.  I do not want to do anything to jeopardize the bill’s passage prior to the deadline.

 

Assemblyman Horne:

Recommendation 9 (Exhibit C) would eliminate the word “voting” in Section 14, subsection 2. 

 

Recommendation 10, addresses Section 15, subsection 1, which states, “Members of the Commission serve without salary or compensation for their travel or per diem expenses.”  That has been eliminated because testimony indicated these members should be compensated.  Therefore, new language was added stating, “Each member…[except for legislators]…receive a salary of $80 for each day’s attendance...”  Legislators will receive their standard [compensation] of $130 per day for attendance.

 

Michael Hillerby:

We have existing policies and other state law that makes it clear that public employees, state or local, who serve as a part of their regular duties, are not eligible to receive double compensation.  That should be fairly obvious, but I want to place it on the record.  If an employee takes leave from local government to serve, then they would be eligible for the compensation provided in the bill.  If they are on their job and given work time to participate, they are not eligible for the $80 per day.

 

One other thought.  As I testified in the first hearing, this is an extremely serious subject and not something we should try to do on a shoestring.  My understanding from my conversations with the Speaker is that he agreed.  Some of the local governments, who may be involved, may be hard pressed to provide budget, so provision of some meaningful, even meager, level of subsistence for the per diem and pay was important.

 

Chairman Anderson:

So the only time someone would be paid for service on the Commission is if they were not being paid by their local government to be on the job.  For example, if the Governor were in attendance he would not receive compensation since he is on the job 24 hours a day.

 

Michael Hillerby:

Exactly.

 

Chairman Anderson:

Unless he happens to be out of the state and then he is not the Governor, correct?  [Mr. Hillerby agreed.]  Occasionally, he is not the Governor; other than that it is a 24-hour a day job, just like yours, Mr. Hillerby.  That’s the reason why you won’t mind working through the night. 

 

Ms. Lang, there is nothing in here that sets us up for the claim that somebody would be able to violate that provision.  We want to ensure that bill drafting understands that it is the intent of the Committee to not allow members of the Commission under A.B. 441 to “double-dip.”

 

Risa Lang:

I have noted that and, should we go forward with this particular section, drafting will make sure that it is indicated.

 

Assemblyman Horne:

Recommendation 11 amends Section 17, subsection 3, to which we have added language to include casinos, courthouses, hotels, and places of worship.  [We also] deleted the word “treatment” from the term “water treatment facilities,” making that reference “water facilities.”

 

This language was taken in part from proposals by Kent Lauer of the Nevada Press Association and by the Las Vegas Metropolitan Police Department. 

 

There is a separate amendment proposed for Section 21, which was difficult to add to the bill, so the Committee may want to consider that separately.

 

Chairman Anderson:

The list that we are adding is OK, but we still need to be very careful in limiting the availability of information relative to the First Amendment via the press.

 

Assemblyman Horne:

Recommendation 12 (Exhibit C) amends Section 19 on page 7.  It revises the provision to additionally require the Legislative Counsel or designee attend the meeting of the Commission and provide necessary assistance to the legislative members of the Commission.  I believe this was important.  It was the one element missing, legal advice on matters that the Commission might consider.

 

Michael Hillerby:

I have just one comment on Section 19.  Because there is not a specific agency designated, there was an issue on the fiscal note.  In talking with Donald Williams [Chief Principal Research Analyst, Research Division, LCB], and in his discussions with Speaker Perkins, I believe we have agreed that the fiscal note would be deposited in the Office of the Governor.  That will be the repository for whatever funding is allowed for that and then be transferred to the designated agency later on.  We simply needed to identify where the travel costs and costs of staffing and operating the Commission would go.  That would go in a specific spot and only be transferable to the activities of the Commission.

 

Chairman Anderson:

However, this also speaks to the fact that the Legislative Counsel is going to provide assistance to legislative members.  Is your reference also in Section 19 of A.B. 441?  [It currently states], “The Governor shall provide such staff assistance to the Commission as deemed appropriate, may designate a state agency to provide such assistance.”  You are concerned that the legislators will be able to have their own staff there.  Is that your concern?

 

Assemblyman Horne:

My concern was that the Commission has legal counsel to help them determine legal or constitutionality of a considered action.

 

Michael Hillerby:

The Commission would have access to the Office of the Attorney General, which would be their legal counsel.  Depending on whether the Governor or his designee was serving, there would potentially be legal counsel from the Office of the Governor and then liaison with the Attorney General.  A body of government would have representation from the Office of the Attorney General.

 

Assemblyman Horne;

I did not choose the Office of the Attorney General because that position is the ranking law officer of the state, while the Legislative Counsel Bureau would be neutral.

 

Chairman Anderson:

Why would this be treated differently than any other commission from the Office of the Governor, which receives counsel from the Office of the Attorney General?  While I appreciate the fact that it is a law enforcement question, I anticipate that everyone else has legal counsel through the Office of the Attorney General, so why would this Commission be different?  In fact, it is rather strange that we don’t include the Attorney General as part of the homeland security team.  If he is the primary law enforcement officer in the state, would he not have a certain level of responsibility for homeland security, in addition?

 

Assemblyman Horne:

In drafting the changes, I attempted to do so in such a way to include provisions that were protective of the rights of all those concerned.  I took the position that, first and foremost, the Attorney General was a law enforcement officer himself, and we needed a more neutral legal mind to give advice with no particular positions on how the Commission could proceed, where as the Attorney General may already have a direction he wants to proceed based on his office.

 

Michael Hillerby:

Those are good points.  What has been crafted establishes two different parts of the Commission, each with their own counsel, because the Legislative Counsel Bureau would be limited strictly to advising the legislative members of the Commission.  The Attorney General has different civil and criminal divisions, so they would have a civil deputy attorney general who would be assigned to the Commission who has a fairly decent firewall, for lack of a better term, between the other functions of the Office of the Attorney General.

 

Assemblywoman Buckley:

At the present time, any time a legislator serves on any committee, the Legislative Counsel Bureau provides the necessary assistance to that member to ensure they are knowledgeable.  This proposal just codifies what we do already.  It does not substitute the Legislative Counsel Bureau as counsel to the entity.  Unlike with our dispute with another committee in the past, this doesn’t do that.  It just makes sure that legislators have necessary backup.  Because that is already the practice, I see no problem with the section.

 

Michael Hillerby:

I agree completely.  I don’t know that you need that language because you already get that service.

 

Assemblywoman Buckley:

Either way, it is fine.  I will defer to Mr. Horne’s research for the proposal.

 

Assemblyman Horne:

If the Committee is comfortable with the language being deleted, I have no problem.  Again, these are just suggestions.

 

Chairman Anderson:

We can make the assumption that the legislative members are going to receive the necessary support from the LCB and that is the intention of the Committee in processing the bill.  Our intention is clearly understood and the direction will come from the Legislative Commission to ensure that takes place without placing it in the bill.  Thus, I don’t think it is necessary to make it an issue or bone of contention within the bill.

 

Assemblyman Horne:

Recommendation 13 (Exhibit C) amends Section 21 of A.B. 441 with the suggestions of Mr. Lauer and the Las Vegas Metropolitan Police Department. 

 

I will first go through Section 21 and the proposed amendments (Exhibit C).  [Subsection 2 currently states], “The types of documents, records or other items of information subject to the executive order pursuant to subsection 1 are as follows.”  There is a list of the various documents that would fall into this [category, with proposed changes to subsection 2(a), particularly the addition of] (i) through (iii).

 

The same changes are being proposed [in Section 21, subsection 2(c)] as were amended in Section 17.

 

Chairman Anderson:

Does this proposal include Mr. Lauer’s concerns?

 

Assemblyman Horne:

Mr. Lauer’s and Las Vegas Metropolitan Police Department’s recommended language should have been distributed to the Committee.

 

Danielle Christenson:

Mr. Lauer’s proposed amendments to Section 21 appear as the last three green pages (Exhibit C, pages 20-22).  Perhaps we could invite Mr. Lauer to the table to speak to his proposals.

 

Chairman Anderson:

Mr. Lauer, I know you are concerned about some of these sections, this section in particular.  We want to ensure that the Committee listens to those concerns again. 

 

Kent Lauer, Executive Director, Nevada Press Association:

[Introduced himself.]  I would be happy to answer any questions regarding the proposed amendment.  I did work on it with Lt. Stan Olsen of the Las Vegas Metropolitan Police Department, so the amendment was submitted jointly.

 

My concern when the bill was first heard is that there must be a balance struck between security and the public’s right to know.  Information can be used for good and evil purposes.  You need to realize that information can be used to alert the public to dangers and the possible misuse of tax money. 

 

For example, families want and need information to keep themselves safe from dangers in their neighborhoods, such as a gas pipeline.  Taxpayers deserve to know whether their governments have taken adequate steps to protect their safety.  Taxpayers deserve to know whether governments have effectively prepared for disasters.  They also need to be able to evaluate if their tax dollars are being spent wisely.

 

The amendment we proposed does provide a compromise.  It does mention certain documents that would be declared confidential by law.  The second part of the amendment addresses primarily building plans.  It sets up a system whereby access to those plans could be tracked providing a “paper trail” of anyone who requested access to those building plans.

 

This language was taken from A.B. 462.  I would be happy to answer any questions and I appreciate the time to speak.

 

Chairman Anderson:

Have you reviewed the suggested amendments that Mr. Horne is proposing?  Do you feel it meets the needs…?

 

Danielle Christenson:

I wanted to clarify to the Committee the difficulty Mr. Horne and I experienced in attempting to merge the proposed amendments from Mr. Lauer to the original language of the bill.  Mr. Lauer’s proposed amendments create a category of records that will be called records related to homeland security.  The initial provisions of his amendments identify certain records related to homeland security as confidential.  He then identifies a group of records related to homeland security that are not confidential, but will be produced to the public under a tracking system.

 

The original language to be retained under Mr. Horne’s proposals for Section 21, of A.B. 441 were subsections 1 and 2.  Then we were going to attempt to merge the tracking system proposed by Mr. Lauer’s amendment into the original language of the bill.  But because the original language does not create a confidential category and a “non-confidential but will be tracked category,” we could not accomplish that.

 

We are simply suggesting to the Committee to retain the original language of Section 21, adopt all of Mr. Lauer’s proposed amendments, or find some other way to merge the two.  If the Committee determines to retain the original language, then we simply have an amendment to the original language of Section 21, subsection 2.  The Committee does not need to visit the proposed amendment for Section 21, subsection 2, until you decide if you are going to retain the original language.

 

Assemblywoman Buckley:

I appreciate all the hard work on this section.  I feel we should adopt the Nevada Press Association amendment.  I think it meets the same goals as the amendment crafted by staff and Mr. Horne.  I like the idea of two categories.  That way we don’t get into questions about whether building plans are confidential.  Original testimony brought up other categories that would have to be considered such as construction defect notices or public works projects.  I think this creates a real workable balance and gets at some of the original intent.

Assemblyman Horne:

I have no objection to that at all with the exception of their proposal 12—the sunset provision of June 3, 2007.  I don’t see the need for that.  I anticipate this being an ongoing Commission and we don’t want a time limit where all the provisions would dissolve.  Then all the documents under those two different categories would all become public, at which time we may not want them to be.

 

Chairman Anderson:

It seems to me that the sunset provision is a security blanket for us who may not be terribly pleased that we may be moving off, based on the terrorist acts of September 11, 2001.  We don’t want to overreact in that regard.  While homeland security seems to be becoming a national cabinet position, it appears to be underfunded in carrying out its stated role and mission.  The sunset provision gives us the opportunity to address it further in the next legislative session.  In the 2007 Legislative Session, we would to be forced to review the provisions.  It mandates the Legislature into a position, since we cannot in any other way hinder the next legislative session from doing its own will, but we can tell them we want them to look at this particular issue again.  For some of us, I think, it gives us a certain level of security that it won’t be a one-time view from all of us who are still shaken by the events of September 11, 2001.

 

Assemblyman Brown:

I want to voice strong support of the Nevada Press Association amendment.  I agree with some of the litigation issues, and I can see this being an outright bar to certain proceedings, so I support those amendments wholeheartedly.

 

Assemblyman Geddes:

I also support the Nevada Press Association amendments.  My concern about Section 21 of A.B. 441 is that, in reflecting on the events of September 11, 2001, and all of the events that had taken place prior to that—the Oklahoma City incident and the first attack on the World Trade Center—nothing in these provisions regarding securing these documents would have affected those acts in any way.  They were just massive, terrorist, fear-invoking attacks on the building that had nothing to do with its internal structure, its security, or the alarm system.  They were just a big, visual, violent act to invoke fear.  Securing all of these documents [listed in the bill] may make us feel better, but it would not change anything when discussing those types of acts.  That is my big concern with Section 21.  I do prefer the Nevada Press Association version to ensure that the access is there.  I would be even happier if Section 21 were deleted.

Assemblyman Carpenter:

I do believe that the Nevada Press Association amendment fits what we are used to in our society, of the right to know what is happening.  I agree with Mr. Geddes that we could delete Section 21.

 

Chairman Anderson:

I think we have reached some level of consensus that the Nevada Press Association proposal will be suggested to amend Section 21.  Those amendments were also crafted with the assistance of law enforcement with the caveat of the sunset provision.

 

Assemblyman Horne:

Recommendation 14 (Exhibit C) amends Section 22, subsection 1 of A.B. 441.  It deletes the words “The Commission,” and “The Division of Emergency Management of the Department of Public Safety” was inserted.

 

Chairman Anderson:

I think we all understand that recommendation.

 

Assemblyman Horne:

That change is made throughout the document as well.

 

Section 24 on page 11 [of the bill] addressed utilities and interoperability.  In Section 24, subsection 1(a), we have deleted much of the language and changed it to read: “Conduct a vulnerability assessment consistent with federal and regional governing agencies for the utility in accordance with the requirements of the federal and regional governing agencies; and”

 

Section 24, subsection 1(b) language was changed to read, “Prepare and maintain an emergency response plan consistent with federal and regional governing agencies for that utility in accordance with the requirements of the federal and regional governing agencies.”

 

The reason behind those changes is because the utilities already have federal mandates on their procedures and planning for emergency situations.  Some of that information is classified and only certain entities are allowed access to the information, even federally.  I would like to request Judy Stokey with Nevada Power Company and Sierra Pacific Power Company to speak.

 

Chairman Anderson:

I think during their testimony in the original hearing they indicated why they were already doing this and we needed to reaffirm that we are.  That is what this amendment does.  Unless someone on the Committee wishes to hear from Ms. Stokey?

 

Assemblyman Carpenter:

Section 22, subsection 1, states, “Each political subdivision shall adopt and maintain a response plan.”  There are a number of small governments in the state that may not have the expertise or funding to meet the requirement.  I can understand the provision in the larger entities or cities and counties, but to have each entity, such as the townships of Carlin and Wells, produce their own, they would need some form of financial help.  Otherwise, it becomes an unfunded mandate.

 

Michael Hillerby:

The Nevada Division of Emergency Management is already assisting local governments throughout the state in preparation of these plans.  They physically assist them with those.  It is my understanding that there are many other federal laws and regulations and other reasons that all these jurisdictions are required to have such plans anyway.  We are very much in the business of helping them to do that.

 

Chairman Anderson:

I was going to remind Mr. Carpenter of some of the requirements we have for movement and shipment of hazardous materials and those for the fire districts and other agencies to do the same.  This is a fairly consistent provision in trying to operate on a statewide emergency basis.  It is something we would all like to see happen immediately, but the reality is something that even the smallest of communities has to be concerned about to have a plan in place for emergency management.  They need to think about terrorism in that regard because it is a new world in which we live.  It is something this country has been able to avoid for many years.  I am always reminded of the problems in my father’s country that caused him to be shipped to this country for his safety.

 

Assemblyman Carpenter:

As long as these things are being covered, that is what I wanted to get on the record.

 

Chairman Anderson: 

From Mr. Hillerby’s statement relative to emergency management, it is something we are already attempting to do in cooperative efforts.  This merely adds the homeland security question into that category of care.

Michael Hillerby:

Yes, I think that is accurate.  Most of the federal grants we receive go to local jurisdictions to help with just these sorts of things and to equip first responders.

 

Chairman Anderson:

So, if small local jurisdictions were not included in the bill, we would not be able to divert funds to them.

 

Michael Hillerby:

I can’t answer that definitively, but my guess may be it would be more difficult.

 

Assemblyman Horne:

Recommendation 17 (Exhibit C) amends Section 25, page 12 of A.B. 441.  The Speaker wanted to ensure his intent was clear that minors attempting to gamble or purchase liquor or cigarettes would not be affected by this.  He wished to clarify that the penalty for those incidents by a minor would remain a misdemeanor.

 

Chairman Anderson:

Ms. Lang, are there any problems in redrafting Section 25 to reflect our current attitude toward minors gambling and their purchase of liquor or cigarettes?

 

Risa Lang:

I’ve noted the concern and when we go back to draft this amendment I will make sure that it is clarified.

 

Assemblyman Horne:

Recommendation 18 (Exhibit C) affects Section 27 of A.B. 441, which addresses deadlines [for governing bodies to purchase an information system or system of communication].  The Governor and Speaker agreed to a change in subsections 1 and 2, changing the date to July 1, 2004.

 

Michael Hillerby:

I just wanted to clarify one point.  In talking with the Speaker and Donald Williams of the Research Division, the language that talks about “an [information] system or a system of communications, or any component thereof,” it is clearly not the intent of this section to say that in the interim an agency could not replace a radio or a spare part.  The term “component” meant a way to replace an entire system.  We are clearly not going to leave law enforcement and other personnel with the inability to purchase spare parts or replace a radio.

Chairman Anderson:

Do you think that we might get the Nevada Highway Patrol off the train traffic communication and control system soon?

 

Michael Hillerby:

Yes, sir.

 

Assemblyman Horne:

Section 27, subsection 3, we added subpart (c) “System of communication has the meaning ascribed to it in Section 11 of this Act.”  We have already covered that.

 

We will jump ahead to Recommendation 20 (Exhibit C) affecting Section 33.  The change in subsection 3 was made at the request of the Nevada Department of Motor Vehicles.

 

Recommendation 21 amends Section 33, adding two new subsections.

 

4.  With respect to document furnished as proof of age as described in subsection 1 of this section, the Department may:

 

(a) If the document has expired, refuse to accept the document or refuse to issue an identification card to the person presenting the document, or both; and

 

(b) If the document specifies a date by which the person presenting the document must depart from the United States, issue to the person presenting the document an identification card that expires on the date on which the person is required to depart from the United States.

 

5.  The Director shall adopt regulations setting forth criteria pursuant to which the Department will issue or refuse to issue an identification card in accordance with this section to a person who is a citizen of a foreign country.  The criteria must be based upon the purpose for which that person is present within the United States.

 

Chairman Anderson:

I see no questions there.

 

Assemblyman Horne:

Recommendation 22 deletes Sections 39 through 45 in their entirety.

 

Chairman Anderson:

Is Speaker Perkins OK with that?

 

Assemblyman Horne:

Yes.  I believe those sections dealt with the utility issue on providing information.

 

Section 47, page 26 of the bill, is amended by Recommendation 23.  Subsections 1(a) and 1(b) are deleted in their entirety and we inserted, “two members of the Senate, each to a term that expires on June 30, 2005.”  The Governor proposed this amendment.

 

Chairman Anderson:

After [June 30, 2005], they would fall back to the regular appointment process?

 

Assemblyman Horne:

I believe so.  This goes back to the issue we discussed earlier regarding term limits.  [Similar amendments were suggested for subsections 2 and 3 consistent with those previously suggested for Section 12 of A.B. 441.]

 

Chairman Anderson:

We will ask the bill drafter to make that language consistent with the earlier section of the bill that addressed the time lines because there is some [consistency that must take place] to ensure that it all fits in terms of time frequency and terms limits that we have already addressed.  Is that OK with you, Mr. Horne?

 

Assemblyman Horne:

That is fine.  The final recommendation is in Section 48, page 27 of A.B. 441, [listing exceptions to the effective date.]

 

Chairman Anderson:

We would have to change the reference to Section 22 to make sure that it has its own sunset provision.  The bill drafters would have to make that correction.

 

Assemblyman Horne:

That is correct.  Also, for clarification, there were numerous proposals for amendment in different areas of the bill, including the issue of interoperability.  What was provided to us seemed to be solicitation for certain concerns.  As an example, some of the proposals would be like us drafting legislation that required use of a Motorola phone rather than an AT&T phone.  We believe that mandates for a particular brand of service should not be placed within the statutes.  The issue appeared with the proposal of AEDs [automated external defibrillators] in Section 30.

 

Danielle Christenson:

That language is found in Sections 30 and 46 of A.B. 441. 

 

If the Committee is interested, amendments were received from the following for consideration:

 

·        Office of the Governor (Exhibit D)

·        Kent Lauer, Nevada Press Association (included in Exhibit C)

·        Judy Stokey, Sierra Power and Nevada Power (Exhibit E)

·        Clay Thomas, Department of Motor Vehicles (Exhibit F)

·        Steve Walker, representing Truckee Meadow Water Authority (Exhibit G)

·        Robin Camacho, on behalf of the American Heart Association (Exhibit H and Exhibit I)

·        Denice Miller of Jones Vargas, on behalf of a communications client (Exhibit J)

 

Finally, from conversations Mr. Horne had with members of the ACLU [American Civil Liberties Union] concerning A.B. 250, they suggested those amendments also be considered in A.B. 441.

 

Chairman Anderson:

Mr. Horne, if we have copies of those documents, we will ask that they be made a part of the record of this meeting so that there is a permanent record on file with the Research Library relative to the development of this piece of legislation.

 

Assemblyman Oceguera:

Regarding Section 30, I had spoken with Mr. Horne and had provided him some amendments, but there was some confusion.  It was a simple amendment to allow the Committee on Emergency Medical Services, [Health Division, Department of Human Resources], to be the lead and for them to do the training, integration, and placement of AEDs.

 

Chairman Anderson:

Where would this be placed?

 

Assemblyman Oceguera:

It is proposed for Section 30, page 15 of A.B. 441.  I would ask that the Committee consider that recommendation.

 

Chairman Anderson:

Where is the training component?

 

Assemblyman Oceguera:

That provision was left out and that is why I am requesting that it be considered at this time.

 

Assemblyman Horne:

Currently, the training for the AEDs must to be done by the American Heart Association and the [American] Red Cross.  Part of his amendment allowed for either of those agencies and also by another—the Division of Emergency Management, Nevada Department of Public Safety.  That would require two types of training for these AEDs for people or entities using the device. 

 

Assemblyman Oceguera:

I am not sure that is the intention, but there is a representative present from the American Heart Association.

 

Robin Camacho, representing the American Heart Association:

[Introduced herself.]  We are simply looking for the standards of the American Heart Association or the American Red Cross to be met.  Most of the entities are using the standards set by those two agencies.

 

Chairman Anderson:

So, you do not believe we need to address the training statute relative to Section 30 of A.B. 441?

 

Robin Camacho:

I am sorry, Mr. Anderson, I guess I did not understand the question.

 

Chairman Anderson:

Did you submit language to the subcommittee regarding Mr. Oceguera’s issue of the training for use of the AEDs?          

 

Robin Camacho:

We did submit language to the subcommittee.  We submitted the statute that California recently passed.  Utah has recently passed a registry statute as well.  Our concern is that there be a training component and that the state emergency medical services take the lead on that.

 

Chairman Anderson:

I think the training question is what we are trying to address ourselves to.

 

Danielle Christenson:

As a further note of enlightenment to the Committee, Mr. Horne and I visited the “good samaritan” statute, which specifies the training that must be done for the AEDs in order for the good samaritan statute to apply.  We found it similar, if not exact, to what Ms. Camacho was proposing.  Since we felt it already existed in statute, we did not feel it was necessary in this bill.

 

Chairman Anderson:

Since it was redundant, it was not added to the bill.

 

Assemblyman Oceguera:

This is not a huge point, but I believe the reason it is addressed in the good samaritan statute was for the release of liability.  If one had training, they were covered for release of liability.  It did not address this section, and that is why I felt it needed to be in this section.

 

Chairman Anderson:

If the bill drafter would then make an attempt at clarifying the responsibility of the Health Division to put together a training program relative to the use of defibrillators that is similar in nature to that provided in the suggested amendment, would that take care of your concern, Mr. Oceguera?  [Mr. Oceguera agreed.]

 

Assemblyman Geddes:

At the top of page 16, Section 30, subsection 1(d), I see no difference between subparts 1 and 2.  I don’t know that we need two different subparts for Washoe and Clark Counties in regard to AEDs at sporting events.  I would actually suggest deletion of the language “controlled by the university” and expand it so that any UCCSN [University and Community College System of Nevada] sporting arena or events center should have these available.  I will mention that the University of Nevada, Reno has 12 AEDs that they are installing and 2 will be going in to comply with this bill.  Subparts 1 and 2 appear to say the exact same thing; there is no difference between the large or small county.  I don’t know why we have two subparts.  It should apply to all UCCSN institutions regardless of the size of the county, if they have a sporting arena or events center.

 

Chairman Anderson:

To what section of the bill are you referring?

 

Assemblyman Geddes:

I am referring to Section 30, at the top of page 16 of the bill, subsection 1(d), subparts 1 and 2—still discussing AEDs.

 

Chairman Anderson:

Traditionally, that’s the way we have done it.  Although I don’t like being a slave to tradition, the responsibilities of the large counties and the smaller counties have always been a major concern in terms of requirements of that nature based upon who is able to carry out such responsibilities.  There is a lack of consistency that often takes place with the Health Division.  Often requirements for a smaller county must be met by a state agency because of the lack of resources in the local districts.

 

Assemblyman Horne:

I see Mr. Geddes’ point, but I do not see a problem with the section.

 

Assemblyman Brown:

I only have one issue left with A.B. 441 and that is on page 7, beginning at line 9, Section 17, subsection 8.  The section addresses the Commission that has been established and the language is somewhat of a “catchall” at the end.  “Perform any other acts that the Commission determines are necessary to protect or enhance: (a) The safety and security of the state of Nevada; (b) …its residents…and (c) …visitors...” 

 

The issue goes to “performing any other acts…”  I know that this is an advisory committee and the actions they are taking are making recommendations, proposing goals, identifying, studying, assessing, and so forth.  I am wondering if we could limit that to “perform any other assessments or investigation” or include the word “acts” but have something that states it must be “within their parameter of authority.”  The current language seems quite broad.  I am not sure we have authorized them to do just anything for those purposes.

 

Chairman Anderson:

I don’t think we do any substantive damage to the bill by talking about performing “any other acts…” within the scope of authority, which “the Commission determines are necessary…”  It may end up that there is some specific need that has not been anticipated in drafting this piece of legislation.  We would truly want the Commission to recognize that they could do that.  I understand that we are not saying that they can do whatever they think, just off the top of your head.

 

If I am to understand what we have anticipated, we are moving with the following recommendations to A.B. 441.

 

·        Add Recommendation 1 in Section 2. 

·        Delete Section 3 in its entirety.

 

Do we need to make a comment about Section 3?  Is that necessary or is it an understanding?

 

Risa Lang:

Section 3 was included because there may be portions of this bill that, in an emergency response situation, would allow certain actions to be taken that could potentially conflict with other provisions of the law.  This was to clarify that in those situations that these are the procedures that the Legislature has specified to be followed.  Although, Ms. Buckley is absolutely correct.  In statutory construction, you look to the more specific.  I am not sure in each case that if you looked at each individual section, you would necessarily say that one is more specific than another.

 

I guess this was just a clarification of how the Legislature envisioned any of those potential conflicts to be resolved.  If the section were removed, in drafting I would feel the need to go to each potential situation that could occur and to specify within those sections, just to avoid such unlikely events.

 

Chairman Anderson:

If I understand correctly, the bill drafters would feel a little more secure by recognizing that it was in this particular piece of legislation.

 

Assemblywoman Buckley:

Perhaps Section 3 could be reworded to say, “This chapter governs in the cases of emergencies as is more specifically described in this chapter.”  It just seemed a little over-broad and caused a little concern.  If that intent was made a little clearer that might work.  Assembly Bill 441 will be re-referred to the Assembly Committee on Ways and Means, so we will have an opportunity for further review before it is sent to the Floor of the Assembly.

 

Chairman Anderson:

[Continuing his summary of the bill recommendations.]

 

·        We are looking at a redraft of the language of Section 3.

·        In Section 5, we accept Recommendation 3 as suggested by Mr. Horne.

·        In Recommendation 4, a new section into that part of the bill that would read, “A system of communication” means without limitation, public safety radio systems…” and renumbering all the remaining sections as a result.

·        Currently Recommendation 5, dealing with Section 11, we would accept.

·        We will accept Recommendation 6.

·        Recommendation 7 will be accepted specifying that the Commission is advisory in nature and to settle the question of voting.

 

Allison Combs:

I will defer to the Legal Division on this, but as Ms. Lang noted there is a choice to be made as to whether or not the members of the Commission will all be voting members, including the Governor and the legislators.  In which case, the Committee can only be advisory.  It does not appear to be solely advisory at this point, due to the plan that the Commission has to develop to be followed by local governments.

 

Chairman Anderson:

So we are not letting the Governor vote.

 

·        Recommendation 7 will be accepted with the exception that the Governor cannot vote.

·        Recommendation 8 addressed Section 13 and will be accepted.

·        Recommendation 9, Section 14, will be accepted—a majority of members of the Commission constitute a quorum.  That is a drafting issue.

·        In Section 15, as proposed by the Office of the Governor, Recommendation 10 was accepted.  Bill drafting is instructed to ensure that no one is allowed to “double dip.”

·        In Section 17, subsection 8, line 9, page 7, ensure that the Commission is acting within its own sphere of influence and not broadening the language.

 

Risa Lang:

Are you currently talking to Section 17, subsection 8?  This is where we are setting out what the scope of the duties of the Commission is.  If we want to limit what these acts are, we need to know if this is just to be advice to the Governor or in what way you are trying to limit it here.  This is the section in which the scope of duties will be defined.

 

Chairman Anderson:

Mr. Brown, if I understand correctly, it is your intent that their duties are in an advisory capacity directly to those functions that are specified in A.B. 441 and to no other area outside that scope?  Please direct the bill drafter as to your intent and how you wish to limit this.

 

Assemblyman Brown:

You stated it correctly, Mr. Chairman.

Chairman Anderson:

So, we are looking for a narrowing of their responsibilities to just those functions specifically listed in the bill.  In addition,

 

·        [Recommendation 11], we are looking for the addition of casinos, courthouses, hotels, and places of worship.

·        We are not accepting Recommendation 12 for Section 19.

·        In lieu of Recommendation 13, we are accepting the Nevada Press Association’s recommendations for language changes in Section 21.

·        Recommendation 14 was accepted.

·        Recommendation 15 is a reminder to bill drafting to check the usual hazardous possibilities of conflicting language; I am sure we are OK.

·        Recommendation 16 was accepted.

·        In Recommendation 17, the language will be addressed by bill drafting to specify that the penalty for a minor in the commission of those offenses would remain a misdemeanor.

·        We are changing the dates of applicability in Recommendation 18.

·        Recommendations 19, 20, and 21 were accepted.

·        In Section 30, we will ensure that Mr. Oceguera’s concerns regarding defibrillators are addressed.

·        Sections 39 through 45 will be deleted under Recommendation 22.

·        Recommendations 23 and 24 were accepted.

 

ASSEMBLYMAN HORNE MOVED TO AMEND AND DO PASS
A.B. 441 WITH THE PROPOSED AMENDMENTS.

 

ASSEMBLYWOMAN BUCKLEY SECONDED THE MOTION.

 

Assemblyman Geddes:

I want to state that I support the bill in its intent.  I still feel Recommendation 21 will have no effect whatsoever and I would encourage the Commission when they are enacting these provisions to not spend many resources in that realm.

 

Chairman Anderson:

“A documents, records, or other items of information describing…certificates”?

 

Assemblyman Gustavson:

I am in support of this bill, but I do have a concern about the unfunded mandate portion of it.  I have no idea what that might be, so I will abstain at this time.

Chairman Anderson:

It is sometimes difficult to believe that the federal government will provide certain promised funds. 

 

Note that the motion should be to Amend, Do Pass, and Re-refer.  The bill will be re-referred to the Assembly Committee on Ways and Means.

 

Was that your intention, Mr. Horne?  [Assemblyman Horne agreed.]  Ms. Buckley, the motion is to Amend, Do Pass, and Re-refer A.B. 441, accepting the amendments as outlined, to go to the Assembly Committee on Ways and Means.  [Ms. Buckley agreed.]  Questions?  

 

Chair will place the question.

 

THE MOTION CARRIED WITH ASSEMBLYMAN GUSTAVSON ABSTAINING.  (Mrs. Angle was not present for the vote.)

 

It looks as if we will be working this evening; I had hoped that we were going to be able to skip this evening’s contest.  We might be able to proceed with A.B. 350.  Ms. Buckley, what do you feel about…is there sufficient time to do…how long is it going to take us to go through your medical malpractice bill?

 

Assemblywoman Buckley:

It depends on how many people wish to talk; I think it will be very quick.

 

Chairman Anderson:

Seriously, Ms. Buckley, do you think we can do it?  [Ms. Buckley indicated yes.]  Let me see if we can do this.  I hesitate to even approach it, but let’s proceed with A.B. 320.

 

Assembly Bill 320:  Makes various changes regarding malpractice.

(BDR 57-868)

 

Allison Combs:

Assembly Bill 320 is set forth on page 3 of the Work Session Document (Exhibit C).  It is a measure that makes a variety of changes relating to medical malpractice and insurance.  Testimony reviewed the development of the state’s recent crisis with regard to medical malpractice insurance.  There were a couple of possible amendments raised and Ms. Buckley offered to coordinate those proposed amendments.  They are summarized in the Work Session Document (Exhibit C).

 

The first proposed amendment relates to the prohibition on charging a fee for inclusion on a panel of health care providers.  The suggestion is to include hospitals in the prohibition—meaning hospitals would not be able to charge those types of fees either.

 

The Division of Health Care Financing and Policy raised the second amendment, and their proposal is attached to Exhibit C (pages 23-30).  Essentially, they have a concern with regard to the state’s Medicaid program as well as the state’s Children’s Health Insurance Program, and the federal requirements involved in those programs.  They would like to exempt those two programs from the provisions of the bill requiring continued care for patients when a physician has been terminated from a plan.

 

The third amendment relates to the schedule of payment plans given to providers when they sign up as required by A.B. 320.  It would specify that if an insurer contracts with a provider of health care to provide health care to an insured, the insurer shall provide to the provider the schedule of payments either at the time of contracting, if the provider requests such a copy, or within seven days after the provider requests the schedule of payments.

 

Chairman Anderson:

Ms. Buckley, as the shepherd of this bill, do you have any comments?

 

Assemblywoman Buckley:

I support the amendments listed in the Work Session Document (Exhibit C).  Those were in other bills that were already worked out and they make a lot of sense. 

 

I was given some suggested amendments from PIC Wisconsin.  I just want to say that I have been very impressed with PIC.  I feel they are a good company and the type of company from which to receive input.  They want to clear up the image that St. Paul Insurance left in their wake.  What we have agreed to do is to sit down and review what is coming out of the Senate and further efforts on this bill.  Nevada Mutual Insurance represented by Jim Wadhams had a proposed amendment that would have exempted them entirely from the bill.  I was uncomfortable with that approach but agreed to convene all the parties and work on it further. 

 

At this particular time, I feel comfortable with the bill as written, including the amendments reviewed by Ms. Combs.  We need to recognize that we have a long way to go before the end of this legislative session.  I feel that the additional protections will provide needed protections for physicians in the first party and correct and rectify some of the mistakes that St. Paul Insurance has left.  If we have a healthier market, hopefully it will prevent these things from happening again. 

 

My recommendation would be to Amend and Do Pass A.B. 320 with the amendments listed in the Work Session Document (Exhibit C).

 

Chairman Anderson:

Are there questions from members of the Committee?

 

Assemblyman Mabey:

I have just one comment on Section 1 of the bill; I have mixed feeling about this.  Section 1 states, “The organization shall not charge the insurer or a provider of health care a fee to include the name of the provider on the panel.”

 

What will happen upon the passage of this bill is that they will charge you a fee for something else.  They will get around that provision by saying the fee is for doing some other service such as credentialing.  They will say the fee is not for being on the panel, it is for being credentialed. 

 

If the intent is to keep from charging any fee at all for anything, the bill really needs to say that.  Some of the organizations will get around the current language as written.

 

Assemblywoman Buckley:

I would accept that as a friendly amendment if you want the Legal Division to review whether there are a couple of words that could be added to prevent a loophole.  That is what has happened in the past, and that’s why we are passing this bill to clean up the loopholes from last time.  I would see that as a friendly amendment.

 

Risa Lang:

I will be happy to look at that when we draft this amendment.

 

Chairman Anderson:

Are there other suggestions from members of the Committee?

 

ASSEMBLYWOMAN OHRENSCHALL MOVED TO AMEND AND DO PASS A.B. 320 WITH THE AMENDMENTS AS SET FORTH IN EXHIBIT C.

 

The Chair will entertain a motion, which includes the suggested amendments by Mr. Mabey, and those are a direction for bill drafting to attempt to tighten the language so there will be no charge for being included in such a panel.

 

Assemblywoman Ohrenschall:

That was the motion I wished to make.

 

ASSEMBLYMAN CARPENTER SECONDED THE MOTION.

 

THE MOTION CARRIED.  (Mrs. Angle and Mr. Oceguera were not present for the vote.)

 

Chairman Anderson:

 We will now turn to A.B. 350.

 

Assembly Bill 350:  Prohibits State Board of Health from requiring certain residential facilities for groups to purchase or maintain policy of liability insurance. (BDR 40-971)

 

Allison Combs:

Assembly Bill 350, as currently drafted, would prohibit the State Board of Health from acquiring certain residential facilities for groups to purchase or maintain a policy of liability insurance. 

 

Since the time of the hearing an amendment has been submitted by the sponsor of the bill, Assemblywoman Ohrenschall.  That amendment is attached as the last page of the Work Session Document (Exhibit C, page 31).  I will be happy to defer to the sponsor.

 

Essentially the amendment is to replace the sections in the bill with the following concept to:

 

·        Add a provision requiring the State Board of Health to require as a condition of licensure that residential facilities for groups maintain a policy of liability insurance.

 

·        Authorize that Board to grant waivers from this requirement under appropriate circumstances, such as lack of availability of such coverage, financial hardship for the facility, or an established record of safety.

 

Assemblywoman Ohrenschall:

These are provisions that are currently being followed through the Nevada Administrative Code.  The purpose of the amendment is to codify them in the Nevada Revised Statutes and thus give them greater permanency and something that would allow such facilities to plan their finances a little more in advance.

 

The same provisions are contained, however, regarding full disclosure to anyone if a home does receive a waiver and therefore does not have liability insurance.  There must be prominent and visible notices posted that the facility does not have liability insurance.  Also, there must be notification to every new boarder.

 

Chairman Anderson:

The Chair has some concern regarding the original bill, but since this is current regulation, I think we can safely move forward and place the provisions in statute without too much trouble.  [Any questions from] members of the Committee?  The Chair is prepared to accept a motion to Amend and Do Pass A.B. 350 with the amendments being those to mirror the existing regulations of the State Board of Health.  Does the bill drafter have any problems with that amendment?  [Ms. Ohrenschall and Ms. Lang both indicated no.]

 

ASSEMBLYMAN CARPENTER MOVED TO AMEND AND DO PASS A.B. 350 WITH THE AMENDMENTS AS DISCUSSED.

 

ASSEMBLYMAN CLABORN SECONDED THE MOTION.

 

Discussion?

 

THE MOTION CARRIED.  (Mrs. Angle and Mr. Oceguera were not present for the vote.)

 

Chairman Anderson:

Ms. Ohrenschall, I presume you wish to present your bill on the Floor of the Assembly.  [Ms. Ohrenschall agreed.]  Ms. Buckley, I presume you wish to present A.B. 320 on the Floor of the Assembly.  [Ms. Buckley agreed.]

 

We will take a five-minute recess [at 11:51 a.m. and reconvened at 12:00 noon.]

 

Of legislation remaining in the Work Session Document (Exhibit C) that we need to glance at and that Mr. Horne is concerned about, I want to ensure that we understand that there are two options for the bill.

 

Assembly Bill 462:  Limits access to records related to homeland security. (BDR 19-1282)

 

Allison Combs:

The remaining bill related to homeland security, which was referenced in the Work Session Document (Exhibit C) on page 2, is Assembly Bill 462.  As Mr. Lauer mentioned when he testified, the Nevada Press Association took their suggested amendment language for A.B. 441 largely from A.B. 462.  The Committee voted to incorporate that language into A.B. 441.  Thus, there does not appear to be a need for A.B. 462 as long their issues of public records under [NRS] Chapter 239 are addressed, which they appear to be.  I will defer to Mr. Horne.

 

Chairman Anderson:

Mr. Horne, we can do one of two things.  We could move A.B. 462 back to the board or we could take a definite action on the bill; we know what the definite action would be.

 

Assemblyman Horne:

That would be the pleasure of the Chairman, sir.

 

Chairman Anderson:

We could put closure to it by taking a definite action.  This is a Committee bill so we are not running the risk of offending anyone in particular, other than ourselves.  We are not going to Indefinitely Postpone the Speaker’s bill, which would be a major mistake.

 

Assemblyman Horne:

I was simply concerned that we not overlook any certain areas.  Assembly Bill 462 addressed public records law and I know this was largely incorporated into A.B. 441.  That was our hope and intent.  There is no need to duplicate it in statute.  I do want to ensure that it is noted as such in A.B. 441.

 

Chairman Anderson:

It is Mr. Horne’s concern that the Committee realizes that we are not abandoning our responsibilities in this area and that A.B. 462 is reflected in A.B. 441 already passed.

 

ASSEMBLYMAN HORNE MOVED TO INDEFINITELY POSTPONE A.B. 462.

 

ASSEMBLYMAN OCEGUERA SECONDED THE MOTION.

 

THE MOTION CARRIED.  (Mrs. Angle was not present for the vote.)

 

The bill has received an IP motion.  The motion having passed, the bill is dead.

The major issue left in front of the Committee is the set of bills concerning construction defects.  Earlier this week the Assembly Committee on Judiciary heard bills that addressed the very serious construction defect problem.  Homeowners in our state, on a daily basis as we saw in the videotapes, face struggles to pursue their dream homes only to have them become a nightmare because of construction-related problems that they could not get repaired, resulting in endless litigation.

 

I was not pleased with the bills presented on their behalf even though the Committee had introduced two bill drafts concerning some of the basic questions.  I have listened to these issues over the last several sessions, as have several of us, and I am not convinced that, in order to address the issues involved in construction defect, we solved them with these bills.

 

The homeowner must be, in my opinion, our primary concern regarding any reform.  The reform package must include three basic components.  I have laid them out in a mantra and I am constantly harping on it; I have spent endless hours in the interim between sessions talking to various groups about the issue.

 

First, the homeowner must have a clear line of redress for their problems.  Secondly, subcontractors must be notified so they can fix the problem in a timely fashion.  Third, there must be a clear screening process through which we can identify who is at fault, so that parties are not using a broad shotgun approach to litigate all entities.

 

The bills we have seen did not do that.  Until we have proposals that specifically include those three points and the fundamental right to repair, I do not believe in or plan on processing any construction defect bill.  If those involved on all sides of this issue can come up with reforms addressing these points I will certainly entertain them. 

 

Until that time, I do not intend to bring the bills we have heard regarding construction defects to a vote before this Committee.  In the last legislative session, we stayed until midnight of the very last day to wait for these people to work out these reforms only to see our work dashed on the other side and completely turned around.

 

I will not subject all of you to that again.  It was not a pleasant experience for us last session and I am not going to go through it again.  I believe those interested in this issue should focus on the issues as I have instructed them to do last session.  If the parties do not bring such a bill, I will offer my own bill before the end of this session.

 

I have approached Speaker Perkins and he has agreed with me and told me in no uncertain terms that he will not allow such a bill to come before our body that does not reflect our mantra.  We have taken the trial lawyers and the builders to task on this very issue in the past, and we will again.

 

Speaker Perkins has indicated to me his full support for an emergency measure that can be drafted through this Committee, if we cannot find the proper vehicle to achieve support from the other house.

 

Assemblyman Claborn:

I applaud you, Mr. Chairman.  I want to give you some of Ms. Buckley’s terminology: you got to the gut of the problem.  Those three elements you just explained are the gut of the bill.  I wholeheartedly agree with you.

 

Chairman Anderson:

If I have the support of the Committee, we will hang tight, and I think we won’t be subjected to any more of it.

 

I have good news and bad news for the Committee.  This Committee is finished with its work at this particular juncture.  There is nothing else that the Chair is willing to process at this time. 

 

It is my understanding that there are some bills coming over from the Senate that have some substantial pieces of work in them.  I know that the trial lawyers can be upset about my rejection of their pieces of legislation.  I know that other groups will be upset about what they perceive to be an important issue for them.

 

I know that of the 112 bills this Committee had assigned to it, we have heard all except 10 bills.  Some of the bills I thought we would be able to process, but amendments have not come back to me in a timely fashion or I did not feel that we had a sufficient number of votes within the Committee to move them through.

 

There will be no Committee meeting tomorrow, nor will there be a Committee meeting this evening, and we won’t be here tomorrow night.  Furthermore, there will be no meeting on Monday, April 14.  There will be no meeting next Friday, April 18.  We will be moving to Floor sessions earlier.  When we begin scheduling meetings again, we will move to an 8 a.m. starting time and will only be hearing one or two Senate bills per day.  We have completed the Assembly bills; the red books will disappear and the blue books will come out.  The red books will remain in the Committee room for referral.

 

I am hopeful that the construction defect bill coming over from the Senate will have enough substance that we can work with it.  I am not going to process it unless it meets what I consider to be the Committee’s position on the subject.

 

We are adjourned [at 12:13 p.m.].

 

RESPECTFULLY SUBMITTED:

 

 

 

                                                                       

Deborah Rengler

Transcribing Committee Secretary

 

 

APPROVED BY:

 

 

 

                                                                                         

Assemblyman Bernie Anderson, Chairman

 

 

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