MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-Second Session
May 9, 2003
The Committee on Judiciarywas called to order at 7:30 a.m., on Friday, May 9, 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
GUEST LEGISLATORS PRESENT:
Senator Warren B. Hardy II, District No. 12, Clark County
Senator William J. Raggio, District No. 3, Washoe County
STAFF MEMBERS PRESENT:
Allison Combs, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Deborah Rengler, Committee Secretary
OTHERS PRESENT:
Pamela Scott, PCAM, Senior Property Manager, Community Association Management, Summerlin, The Howard Hughes Corporation
Karen Dennison, Attorney, representing Lake at Las Vegas Joint Venture
Terry Savage, CIO, Department of Information Technology
Lucille Lusk, Cochairman, Nevada Concerned Citizens
Janine Hansen, representing Nevada Eagle Forum
Paul Grace, Executive Director, Nevada Victory Fund,representing the Nevada State Rifle and Pistol Association, and a member of the Washoe County Homeland Defense Council
Jim Nadeau, representing Washoe County Sheriff’s Office
Stan Olsen, Lieutenant, Government Liaison, Office of Intergovernmental Services, Las Vegas Metropolitan Police Department
Chairman Anderson:
[The Chair reminded the Committee members and those present in the audience of the Standing Rules and appropriate meeting etiquette. Roll called.]
There are 11 members present; 8 being needed, a quorum is present.
Let’s turn to Senate Bill 136.
Senate Bill 136 (1st Reprint): Makes various changes relating to certain penalties and fines imposed by unit-owners’ associations. (BDR 10-897)
Senator Warren B. Hardy II, District No. 12, Clark County:
It is a pleasure to be here in the people’s house where all the work gets done. [Introduced himself.] This bill before you today is the result of some issues I had with my own personal homeowners association (HOA), some conversations I had with some of my immediate neighbors, and some circumstances I experienced. This has also become a “Christmas tree” bill; there were some folks, including HOAs, who came to testify on the bill and proposed some clarification they wanted. I accepted that. Then there is also a very important provision contained in Section 1 dealing with the completion of construction in accordance with the contract you sign; there are others here to speak to that. So if it is OK, I’ll jump immediately to the portion of the bill that I requested and give you a little background as to why I brought this bill.
[Senator Hardy continued.] A summer ago, my wife accidentally backed into the garage door, ruining the door. We had to get a new garage door installed. I recognized immediately that my garage door was not the color of the other doors; I have a three-car garage. I set about to find the paint code for my garage door, contacting the HOA, but nobody could give me the paint code. My garage door remained the wrong color for quite some time. Also, my trash can was left out longer than 24 hours on one occasion. That could have occurred Mr. Chairman. While I usually try to wait right up to the 24 hours to bring it in, I sometimes would go over. Subsequently, I went to the mailbox one day and I received a notice of a fine from the HOA. I referenced my CCRs (Declaration of Covenants, Conditions and Restrictions) and it said that [the HOA] must notify me of a fine and give me a hearing. I went to the HOA. The letter referenced the fine and said I had an opportunity to appeal that fine.
I called, got on the agenda, went down to the HOA meeting, and indicated to them that they were in violation of the CCRs that I had signed because the CCRs clearly pointed out that they needed to provide me with an opportunity for a hearing before they fined me and they needed to notify me of the violation.
The response I got to that when I questioned them was, “We know that’s what the CCRs say, but the law doesn’t say that, so we aren’t going to do it that way.” I pointed out to them that legally the CCRs were what I contractually obligated myself to when I bought the home; that didn’t seem to bother them at all. So, they continued on with the fine.
I went back and looked at the law and, in fact, the law, at that time, did not require due process. This bill and the portion that I intended to bring forward is designed to simply require that, before you can be fined by your HOA, you have to be provided with due process. The section I referenced is Section 4, page 4, starting on line 31, which simply outlines the circumstances that have to exist before the board can fine you.
One of the things that came forward from an HOA is that if we do this, it may require quite a bit of time, so they asked for specific statutory authority to assign a board to consider these, which I had no problem with. The other item we wanted to clarify was that the requirement for a hearing was not necessary in a circumstance where there was an ongoing violation. Those items have been cleared up.
[Senator Hardy continued.] Then I was approached by another HOA that said that one of the problems it had is that the current law says that you can fine a guest or visitor. There was nobody ultimately responsible for abiding by the CCRs—nobody you could get a hold of if a guest or a tenant violated [a provision of the CCRs]. They asked for an amendment to this bill that would specify that the homeowner, the owner of the building, is responsible for the actions of his or her guests or tenants with regard to the CCRs. The owner of the home obligated himself too. I did not have a problem with that, so it was included.
The other portion I was asked to consider was in Section 1 dealing with requiring the completion [of construction] and setting up a penalty if you did not complete construction as contractually agreed. Of the ornaments hung on this Christmas tree, this is the one I feel strongest about. I had that circumstance with my own home and know others that have. People have purchased a lot, contractually obligated themselves to build within a year, and it has been five or six years; that certainly impacts the value of others who have made a conscious decision to reside in a HOA to avoid those kinds of things. I believe Pam Scott is here from the Howard Hughes Corporation; they specifically requested this [provision] from me and I wholeheartedly supported that on the Senate side and do so today.
Chairman Anderson:
This doesn’t preclude the right or the ability of somebody within a HOA to have his or her own criminal or civil rights protected by the state as outlined in the Constitution of the State of Nevada?
Senator Hardy:
This doesn’t speak to that at all. This is simply violations of the CCRs.
Chairman Anderson:
I know we have had some problems, as you know, at different places with flags and other kinds of questions. I want to make sure we are not taking away somebody’s opportunity to…
Senator Hardy:
I think we are clearly providing for people’s constitutional rights of due process; that’s the intent of the bill.
Assemblyman Horne:
On page 5, line 7, “within a reasonable time after discovery,” and additionally in subsection 4, where it says “The executive board must schedule the date, time, and location for the hearing on the violation so that the person against whom the fine will be imposed is provided within a reasonable opportunity,” there is no date certain or time certain in that. That could to be problematic in the future. One week, they could say that two days was reasonable time; the next, their neighbor had two weeks. Was there a reason you did not put a date certain?
Senator Hardy:
That was not discussed in any great detail. The reality of it is, as in most pieces of legislation that we deal with here, that most of the HOAs are good actors. Testimony on the Senate side and testimony today will reflect that most HOAs’ CCRs reflect what mine did, and those HOAs abide by that. We did not want to put any undue tough restrictions on HOAs that were not the bad actors. I did not get too involved in trying to be that stringent. I am unaware of any CCRs that don’t require a due process, so what I really wanted here was a specific declaration in statute that was intent that they were to provide that. Most people are doing it. This is not a systemic problem to my knowledge; I just wanted to ensure in statute that there was a specific declaration of legislative intent.
Assemblyman Mortenson:
I am looking at the section about the visitors, “If a tenant or guest of a unit’s owner” commits any crime, it’s as if it were against [the responsibility of] the owner. Shouldn’t there be at least a warning in there? A visitor may have no idea what your CCRs say and may innocently commit something and suddenly you have a fine.
Senator Hardy:
That is a very good question. I would have been extremely uncomfortable with this language but for the additional language that requires the due process and notification. We are providing a notification. The problem we have is that ultimately the HOAs don’t have… We, as homeowners, the owners of the property, we have contractually obligated ourselves to those CCRs. There is not a mechanism in place between the HOA and the tenant; there is between the homeowner and the tenant to contractually obligate the tenant or guest. Ultimately, we needed to hold somebody responsible.
In this bill we also provided the due process mechanism, whereby the homeowner is notified of a violation of their tenant or guest and given a mandatory hearing, and that’s key. This is not [saying that] they will be given notification and an opportunity for a hearing; they must be notified of the time and place of the hearing. So that is the notice that I was comfortable with, giving the homeowner the opportunity. At some point we have to place some confidence in the HOAs to additionally consider those situations, but I know that is a scary thing to say for some of us. Again, in my experience, most [HOAs] are good actors when it comes to this type of thing. I appreciate your question; I had the same concerns.
Assemblyman Claborn:
What kind of fines are we talking about here? What kind of fines would they charge you for leaving your car parked out in front of the yard or on the street and for not taking your garbage can back in? Are we talking about big money?
Senator Hardy:
I guess that depends on whom you are talking to. They did not specify or break down the fine in regard to my problem with the garage door and my trash being left out. The fine was $50 and I was notified that until it was collected, it would be an ongoing fine of $50.
Vice Chairman Oceguera:
Mr. Claborn, I draw your attention to page 4, lines 27 through 30, where it says, “The fine must be commensurate with the severity of the violation, but must not exceed $100 for each violation or a total amount of $500, whichever is less.”
Senator Hardy:
…and that is existing law.
Assemblyman Claborn:
I was thinking it might be between that, that answers my question.
Pamela Scott, PCAM, Senior Property Manager, Community Association Management, Summerlin, The Howard Hughes Corporation:
[Introduced herself and submitted Exhibit C.] I want to thank Senator Hardy for the opportunity to speak to this bill and I would like to say that I totally support his sections on fining. He is correct that most CCRs do require due process and this portion of the law will clarify that there should always be a hearing held and not just an opportunity. It puts the burden on the homeowner when you say you have an opportunity; the burden should be on the association to hold that hearing.
I would like to speak to Section 1 of S.B. 136, which deals with penalties for failure to complete construction of a custom home within the time frames that are outlined in the purchase contract, purchase agreements, and in the CCRs as a general rule. Families buy into these HOAs with the intent of living a long time in the associations; these are major investments in a lot of these custom home associations. I can only speak for Summerlin. We do not sell to real estate speculators; that is why we put a time frame and it’s quite reasonable, a lengthy time, anywhere from five to six years, to complete the home and be within it. We are not there for someone to buy a lot, hold onto it until the price goes up, and then resell it; we are trying to create the community.
In 1999, when they created the caps that were just referenced in Nevada Revised Statutes (NRS) 116 on fines, it placed the construction penalties in a gray area. Were they a fine or not? They were never really intended to be a fine. It was attempted to be corrected in 2001, but as you know, legislative time ran out and the HOA bill did not pass. There was no opposition to this in 2001, so this section is really to clarify the fact that these penalties in recorded documents and sales agreements are not fines for failure to paint your garage door or leaving your trash out; these are contractual agreements and should not fall under that. There is a section that does say that this penalty falls outside that and you can’t also be fined on top of these penalties for failure to construct.
So I am asking for your consideration of that so that we do not have communities that have lots sitting for years. In my handout (Exhibit C), I pointed out we have a few lots in Summerlin and three different associations that have been sitting unbuilt for eight or nine years, and those became subjects of litigation because since 1999 some of the attorneys have been taking the position that it falls within that $500 fine cap.
Assemblyman Horne:
I have concerns about instances where a homeowner may have a dispute with a contractor who isn’t keeping the time schedule in building these homes and may [result in the homeowner] be[ing] penalized, especially if we are talking custom homes. In certain areas, there are a limited number of contractors that do that type of work, so you can’t even mitigate your damages by going out the next week to hire somebody else to keep up with the schedule to avoid that penalty.
Pamela Scott:
I can honestly say in Summerlin there has never been a contractor issue. We have had a couple of hardship issues that we have dealt with and given additional time. We are talking about five and six years from the time you purchase the lot to have the home built and occupied; this is a rather lengthy time and these are not inexpensive lots as a general rule when you are building a custom home. They built the MGM Grand Hotel in less time than some of the homes have been built in Summerlin. That truly has never been raised as an issue.
Assemblyman Horne:
The first law firm where I worked I did construction litigation, and some of these issues did arise where you had disputes on work done timely and homeowners refusing to allow contractors back onto the property or the contractor refusing to come back and complete work for various reasons. That is where my concerns arise.
Assemblyman Mortenson:
How did you resolve the paint problem if you could not get a formula?
Senator Hardy:
I finally was able to get the paint code after a number of calls; it was literally six months. I actively pursued the paint code for about a month, then it slipped my mind until I got the fine notice and then I resumed my efforts to get the paint code. They said to paint it and I was going to paint it periwinkle just to make a point, but I decided not to do that.
Assemblyman Mortenson:
Do they require that you have a specific color, exactly the same as your neighbor?
Senator Hardy:
It’s required in the CCRs that the colors match the house and any variation of that has to go before the architectural design committee.
Assemblyman Mortenson:
Was it the architectural design committee that finally had the color code you needed—the formula?
Senator Hardy:
It was the builder; I finally went directly to the builder.
Assemblyman Mortenson:
The architectural design committee should keep that information if they are going to fine you for not painting it.
Senator Hardy:
One would think.
Assemblyman Brown:
I am pleased to hear the period of five or six years; are there any developments that have a one- or two-year period that you are aware of?
Pamela Scott:
No, the least amount of time in Summerlin to complete construction of your custom home is five years. There is one that we have a seven-year time period on because it’s a bigger lot and the home will take longer to construct.
Assemblyman Brown:
What would a construction penalty be if they failed?
Pamela Scott:
The penalties are substantial, I do not deny that. But they are in the purchase agreement when you buy the lot; you know the penalties. They run as high as $50 to $100 a day depending upon the neighborhood.
Assemblyman Brown:
You mentioned a hardship; I imagine there is a way to apply for some type of extension if there is a hardship. Could you outline that?
Pamela Scott:
Yes. First I would like to say that this bill also clarifies that even before you can assess the construction penalty that has been contractually agreed to, you still must hold the hearing and find out the reasons. They have not been exempted from holding a hearing with that homeowner. Any homeowner has the ability to approach the board of directors and present the facts. As I said, there have been a couple of times in Summerlin that has happened and the extenuating circumstances have been addressed.
Assemblyman Brown:
If somebody has commenced construction, would there be an understanding or leniency that they will have sufficient time?
Pamela Scott:
The hardship issues we have dealt with have been illnesses, where someone in a family had developed cancer or there had been a death and the widow couldn’t meet the time frames. I can think of no reason where circumstances were erroneous in a case that the board would not work with it. These are nice communities and the goal is the get the home in place and family who wants to live in the community in residence. I cannot imagine they wouldn’t get due process.
Assemblyman Mabey:
What happens in the case where you sell a lot with a five-year limit, but the person who bought the lot sells it four years later, and there is still a year left?
Pamela Scott:
The documents start the clock ticking at the time the developer sells the lot to the first purchaser. There certainly are examples of resale lots, but the clock started with the first sale. Therefore there are numerous negotiations at the time of a sale when somebody is purchasing a lot with only a year left and they know that they will need two years to build the house. They generally negotiate the price of the lot relative to the penalties involved.
Assemblyman Claborn:
I bought a couple of lots not long ago and they made me sign CCRs but the HOA was not established. What ramifications would that have for me? If in six months an association board of trustees is formed; what am I to them? Some of these homes were built custom and I know we all have to get together, but I still had to sign CCRs. I refused and I even had to stipulate that I would not abide by these stipulations because there were four or five developers that built the homes in there. The original developer went ahead and made us some sort of association, but it never went into effect; it never had a board of trustees and never will. Another one I bought in another place, which is established, they don’t have a board of trustees either. If they ever establish a board… My problem was, why did I have to sign the CCRs?
Pamela Scott:
I am not a real estate attorney, I am not practicing law here, but there are numerous deed restrictions where no HOA was ever formalized. In that case, it simply gives you the ability to take these issues to court against the offender. If you don’t build on that lot and there is a time frame for it, it really gives your neighbor the right to take you to court, but there has been no formalized association, the party to that.
Assemblyman Claborn:
I understand that; I was debating whether to ask that question or not. It is a serious question for me. You are right; I should probably seek an attorney for that.
Senator Hardy:
The reason I felt this was so important to put into this bill when they approached me is that I think it is critically important that our statutes have an absolute level of protection for the individual who purchases a lot, signs a contract, and agrees to construct on that lot. It is equally important that we protect the individuals who have purchased homes around that person. You have the property rights of one individual in question here; you potentially have the rights of numerous individuals being affected by their failure to build. I think it is critical that we don’t lose sight of that; that was my main objective. If you buy a home in an upscale community with the expectation that there will be no vacant lots around you, and for ten or fifteen years you have a vacant lot next to you, that is unfair as well. That is the main objective from my perspective.
Chairman Anderson:
Assemblyman Mabey’s question triggered a question for me. What happens in a development such as yours where someone has purchased a lot with the intent to build, and during the course of their ownership some problems happen within that relationship, a divorce or whatever, and consequently the property may change to whomever picked it up in the divorce settlement, but they do not build on the lot? Now you have a vacant lot sitting there for the seven years, they still own it, but you the developer would like to see it completed, as does everybody else. Does it have a market value since it cannot be built on?
Pamela Scott:
That’s an excellent question. If this party wants to sell, it certainly still has a market value, but they have to take into consideration what the penalties could be accumulating at X amount of dollars per day [during the time] it might take to get that home built.
Chairman Anderson:
Are you not concerned about trying to get it developed so you can complete the community? Do you go out and contemplate repurchasing lots yourself? Do people sell it back to you?
Pamela Scott:
Yes, that has happened. But it has not changed the start time of the clock; it is considered a resale the next time it gets sold. They still have to negotiate the price considering the penalties. The association and the surrounding homeowners are the beneficiaries of any penalties or incentives to build, it isn’t the developer or the contractor who is the custodian of those dollar sums that are collected.
Chairman Anderson:
Are we in any way hurting the dollar value of the property of a person who didn’t build because of their inability to get their property on the market?
Pamela Scott:
I do not believe so; what you are doing is communicating that they need to build quickly, but I can’t believe it would affect the resale other then having to take into consideration the cost of the penalties. I don’t sell real estate; I manage associations.
Senator Hardy:
I don’t know the answer to that, but even if it did, I don’t have a problem with that. The purpose of this is to encourage people to live by the contract and build for the protection of their neighbors and will add an additional incentive for them to live up to their contracts. This is a contractual obligation, something they have contracted to do. The rights of one person shouldn’t outweigh the rights of his neighbors. I do understand the purpose of the question; I think it is a very legitimate issue, but again, I don’t want to lose sight of the fact that we are trying to protect the greater good in this situation.
Pamela Scott:
Karen Dennison is a real estate attorney who represents Lake at Las Vegas, which also has custom lots, and she could probably answer some of these legal questions.
Karen Dennison, Attorney, representing Lake at Las Vegas Joint Venture:
[Introduced herself.] I wanted to add my support to this bill. I think the topic has been well covered; it is very important that construction penalties are distinguished from fines because fines have caps, and I think Pamela has covered why construction penalties are necessary. Also the other aspects of the bill, the ability for the HOA to enforce its CCRs against tenants—that’s very important; and the due process in respect to fines. It’s a complete bill in terms of it filling in a lot of gaps that are now present in NRS Chapter 116.
Chairman Anderson:
Any other questions for Ms. Dennison, who is an attorney? Ms. Dennison, do you want to speculate an answer on any of those thorny questions relative to what might happen in Lake at Las Vegas because somebody has a piece of property but doesn’t act on it within the time frame? I presume you have a seven-year [time frame]?
Karen Dennison:
We have a different system. We are one of the few communities that does not have a time limit on building, but the owner is required to landscape his lot. If the owner doesn’t build, he must landscape.
Chairman Anderson:
So he landscapes his lot, he puts in xeriscape.
Karen Dennison:
There are certain landscaping requirements that they must meet.
Chairman Anderson:
Questions for Ms. Dennison?
Anybody else wishing to testify on S.B. 136? In opposition to S.B. 136? Let me close the hearing on S.B. 136.
Senator Raggio is closing budgets, so we are going to be hearing Senate Bill 38 last. Let’s turn our attention to Senate Bill 175.
Senate Bill 175 (1st Reprint): Makes various changes with respect to security of State of Nevada. (BDR 18-536)
Terry Savage, CIO, Department of Information Technology:
[Introduced himself and submitted Exhibit D.] The handout that I am providing is a one-page summary of the various points of the bill for your convenience. I have a long history of involvement with security issues; before joining the state of Nevada, I worked in the defense industry for 17 years. I started the statewide Nevada Information Technology Security Committee, which crosses all agency lines, about six months before September 11, 2001. We recognized that was an important thing that needed to happen.
A little over a year ago, we acknowledged that we had a lot of these procedures established and developed; we need to do an assessment of where the risks are and what are the real places in our information technology infrastructure where we could be damaged. One of the concerns that came up in that discussion was under the existing public records and Open Meeting Law; one could argue that if we did that risk assessment and got the list of vulnerabilities, that would be a public document. In fact, we would have created a target list for the “bad guys” if we created this list under that regime. I consulted with our Deputy Attorney General and was informed that we could make a weak case that the Governor can do some of this under executive order, but the right thing to do is to get a change in the statute to say that specific security-related information would not be considered in the public domain.
We researched what had been done in other states—Virginia, Washington, and a few others—and modeled our legislation around some of the things that had been done. At that time, very few states had adopted regulations and changes in statutes to deal with this issue, although it was becoming recognized that it was a very important issue. Also at that time, I was getting involved with the Homeland Security Committee; I sit on the Homeland Security Committee and am the chairman of the Nevada Communications Steering Committee. Again, the question came up regarding talking about vulnerabilities in the system. We are fanatic about following the Open Meeting Law, and it would be appropriate in some cases to close the meeting so that we don’t say, “Here’s the list of holes, what are we going to do about it?” in a public forum.
So, we drafted the bill and it was read in the Senate. Almost immediately thereafter, we received calls from the Nevada Press Association and the American Civil Liberties Union; they had concerns about the confidentiality provisions and the closed meeting provisions. We met several times to go over the issues; we quickly caught on that all of us were concerned with legitimate issues that the other parties had. We came up with a compromise amendment to the bill, which actually replaced the original with a completely new draft. We took that to the Senate Committee on Government Affairs and said, “We have sorted it out, this bill as currently worded addresses the legitimate needs for controlling information that would pose a security risk, while at the same time preserving the legitimate needs for open meetings and public records.” The bill was passed unanimously out of the Senate Committee on Government Affairs and then by a wide margin [in the Senate and referred] to this Committee for your consideration in the Assembly.
Chairman Anderson:
The Attorney General’s CyberCrime Task Force, where you and I serve, it is part of its job too. Is there somebody from the CyberCrime Task Force included on the Homeland Security Committee? Do they cooperate?
Terry Savage:
The Office of the Attorney General was represented by Kevin Higgins; he had been counsel to the CyberCrime Task Force and had been serving on the existing interim Homeland Security Committee. With your permission, it might be useful for me to outline what I am talking about relative to interim business. When the need for homeland security became recognized, there was no clear mechanism for setting that up. However, we did have, somewhat dormant but existing in the state of Nevada, the Weapons of Mass Destruction Committee. The Governor charged that committee to serve the purposes of the Homeland Security Committee until we could formalize the process of an independent committee. This bill also includes the process for doing that, where the Governor would establish a distinct and specific committee to deal with the homeland security issues. I said “interim” because it’s really a derivative of the Weapons of Mass Destruction Committee in its current form, as opposed to the more standard format that we are proposing.
Assemblyman Carpenter:
My concern is with the definition of “acts of terrorism” as they refer to governmental entities and civil unrest. Seems to me that we amended a bill in this Committee that seemed to fit the definition of “acts of terrorism” much better than this does. My concern was then as it is now: we must be very careful to be able to keep our freedoms.
Terry Savage:
I would have no objections to amending this bill to use the definition of “terrorism” that you have already approved as opposed to the one that’s presently in S.B. 175; I would not find that objectionable in the least.
Assemblywoman Buckley:
Along that same line, we spent a good deal of time on the Speaker’s bill [A.B. 441] setting up the Commission on Homeland Security and dealing with what records should be kept private without resorting to secret government. Have you reviewed that bill? Many times, once we have spent extensive time on a bill, we go with that one and ask for input while we are processing the first bill. Did you review that bill? Did you participate with that bill?
Terry Savage:
The constraints that we have in S.B. 175 are actually quite narrow. They deal not so much with content as with security information; specifically, security systems, access codes, and that class of thing. As long as the language that you developed for what is kept confidential in A.B. 441 is inclusive of those requirements, it might even be broader, I have no attachment or pride of authorship for the particular wording so long as those requirements are taken care of.
Chairman Anderson:
Let me ask Ms. Combs to remind the Committee and make sure we are all on the same page. She prepared a document (Exhibit E) that makes a comparison between a couple of bills that we have on our agenda for the day. Assembly Bill 441 is one of the bills that we remain concerned about.
Allison Combs, Committee Policy Analyst:
On page 4, Exhibit E, it references A.B. 441, which is the bill processed by this Committee, and S.B. 175. The three major components of S.B. 175 include the definition of terrorism, the committee that is created, and the issue of the public records. As noted, there are two different definitions of terrorism, which are set forth in the second column.
The second issue is the committee created. In S.B. 175, the committee is advisory and appointed by the Governor. Assembly Bill 441 specifies a membership of at least 14, areas of expertise are specified, and the Governor serves as chairman and as a non-voting member. It also specifies multiple responsibilities for the commission, including the establishment of a “state plan setting forth criteria and standards for the compatibility and interoperability of those systems when used by response agencies” to terrorism.
Finally, regarding public records, the language is similar but it does set up some different schemes. Senate Bill 175 specifies that the Director of the Department of Technology determines which records would create a substantial likelihood of threatening public safety if released are confidential and that the Director must maintain a list of those and review the list each biennium. Assembly Bill 441 specifies that certain documents prepared in relation to preventing or responding to terror are confidential if the Governor determines by executive order that their disclosure would create a substantial likelihood of compromising public health, safety, or welfare. Assembly Bill 441 also creates another category of restricted documents which is a category where people must provide identifying information before they can access those and a log is maintained of the information provided as people access that log.
The last page [of Exhibit E] contains other provisions that are in A.B. 441 but are not related to S.B. 175.
Terry Savage:
With respect to the definition of terrorism, reading through what is here (Exhibit E), I would have no objection to either one or to a hybrid that this Committee might prefer.
In terms of public records, it looks like A.B. 441’s ability to deal with this question is a superset of what I have in S.B. 175, that is, it would include the constraints that I have. If that were the Committee’s preference, I would have no objection to that as the result.
In terms of the committee created, this is actually an interesting situation because to some extent it may make sense to have two different committees; these committees are doing different things. The committee created in S.B. 175 is very specifically intended to provide guidance and coordination within the Executive Branch with local government agencies, as opposed to being more of a legislative oversight commission. It is entirely possible that there will be a distinct role for each of those two entities that would be different. In terms of S.B. 175, this would be very closely in line with normal Executive Branch practice whereby the Governor would essentially establish an advisory committee for him and determine the membership, the process, and procedures. Whereas again, it might well be entirely appropriate to have an additional commission structured along the lines of A.B. 441.
I do think there would be a great deal of merit of using the same definition of terrorism and public records and the restrictions on public records for both entities. From what I see here, I would be agreeable to whatever the Committee worked out along those lines.
Chairman Anderson:
Since we are precluding in A.B. 441 the involvement of the Governor’s staff or appointees, this would provide a clear statement of who would be able to participate and focus the Governor’s activities in that regard. [Terry Savage concurred.] That part of S.B. 175 would be needed.
Assemblyman Horne:
Regarding the advisory committee in A.B. 441, originally it was requested that the Governor have a voting right on that, but we were advised by the Legal Division that it could not be done because of the separation of powers. It wasn’t just an advisory committee, so we are doing this. I understand your explanation that we may have two different committees, but how I see it, the parameters, policy, and what we are trying to do, seems like many of those players could be on both of those committees. Much of what I have seen put together indicates a good deal of overlap with a couple of variations. Wouldn’t it be better to combine, instead of having two committees? It seems duplicative of efforts.
Terry Savage:
In an ideal circumstance, I would tend to agree. Due to the separation of powers question, it becomes impractical to have committees that have significant voting representation from both the Executive and Legislative Branch. Apparently, consistent legal ruling on both sides indicates that it could be a problem from a separation of powers standpoint. If I am misunderstanding that or if the ruling on that changes, I might agree. There are also differences in function. The Governor’s committee is intended to review day-to-day operational things as is appropriate for the Executive Branch. Not being an expert on A.B. 441, my expectation would be that a more legislatively oriented committee would be involved in oversight and policy determination as opposed to day-to-day operations. I think the two roles, even though there may be overlap in some of the membership, and I don’t necessarily see that as a bad thing, and the direction of the different committees, are sufficiently distinct that in this particular case it would benefit the state to have separate entities.
Lucille Lusk, Cochairman, Nevada Concerned Citizens:
[Introduced herself.] I was unsure whether to sign in “for” or “against” on both these bills today because there are good things in them, yet there are significant concerns remaining. The major concern with this bill has already been articulated by Assemblyman Carpenter and others—the definition of terrorism. The definition of terrorism that you have developed in A.B. 250 is by far the superior of any that has been developed this session. We would encourage and appreciate you including it in any bill that you decide to process.
You have also raised already the question of duplication with other legislation. There are a couple of elements in this bill that are different, as I perceive it, from other legislation. That would be found on page 2, lines 30 through 44, which creates legislative oversight of the committee’s decisions to close records and requiring reporting to the legislative committee that would have jurisdiction over the matter. I am not 100 percent certain which committee that is, whether it would be this Committee or the Assembly Committee on Government Affairs, and if the Legislature is not in session, then the Legislative Commission. Quite candidly, we liked that, we liked having a second look by representatives of the people directly, whether records having been closed are justified to be closed and whether they should remain closed.
Also on page 4, there is a requirement for review every two years of confidential records to determine if they need to remain confidential, if they are obsolete and can be gotten rid of entirely, or if they should be opened. Those were provisions in this legislation that we did not recall having seen in other legislation that we would appreciate your consideration of.
Chairman Anderson:
Generally speaking, the records are considered to be government documents and usually fall under the purview of the Government Affairs Committees and not the Judiciary Committees.
Janine Hansen, representing Nevada Eagle Forum:
[Introduced herself.] I just wanted to mention the same concerns that the Committee already brought up—that we prefer the definition of terrorism that is in A.B. 250 and A.B. 441. We would prefer that definition be utilized in any other terrorist legislation; certainly after all the review and time spent, we think that is the best definition.
The other thing I wished to mention was the issue of the committees. What we really liked about the committee set up in A.B. 441 is that it included legislators; I think that is very important and I really appreciate the fact that we have legislators involved with this issue as an oversight. My concern was heightened during the interim at the hearings on the Model Emergency Health Powers Act, where the Governor essentially was authorized to act totally alone. The comfort of having oversight from the Legislature is very important; I would appreciate that it continues.
My other concerns have been addressed.
Chairman Anderson:
Questions for Ms. Hansen? Anybody else wishing to be heard on S.B. 175? Let’s close the hearing on S.B. 175. We are waiting for Senator Raggio. We will take a 30-minute recess.
[Chairman Anderson reconvened the Committee after the recess.]
We can take up Senate Bill 38.
Senate Bill 38 (1st Reprint): Makes various changes regarding certain acts relating to terrorism, weapons of mass destruction, biological agents, chemical agents, radioactive agents, toxins and delivery systems. (BDR 15-89)
Senator William J. Raggio, District No. 3, Washoe County:
[Introduced himself.] I am not going to take a great deal of your time discussing this bill because I know that you have already heard this issue in connection with other bills. Assembly Bill 250 has already passed this house and is in the Senate. I have not taken the time to look at the differences in these bills; we are looking here at S.B. 38, which had extensive hearings over in the Senate. I don’t think it is necessary to tell you the reasons why these bills were brought forth; they define some new crimes and provide some sentence enhancements and additional penalties for knowingly committing or soliciting terrorism, providing for acts of terrorism, making terrorist threats, hindering the prosecution of terrorism, and so forth.
The reason I brought forth the measure early in the session… The request was made shortly after the events of September 11, 2001. Some from southern Nevada were aware of some nexus between the persons that perpetrated the terrorism acts of September 11 and Las Vegas. You had editorials and comments from federal authorities indicating the vulnerability and potential targets such as Hoover Dam and large metropolitan areas. We are certainly not sitting on an island in the state of Nevada; we are not immune from the potential for these things. At the time that I proposed this measure and it was introduced, at least 33 other states had passed anti-terrorism legislation that defined an act of terrorism. Most of the bill was very similar to federal law and the definitions are similar to what is called the PATRIOT Act. I won’t go into those distinctions. I am not going to go through every section of the bill because I think I would be wasting your valuable time.
Some questions were asked when the bill was processed in the Senate; a lot of comment was made about the fact that we don’t need this because there is already federal law. I am hopeful that law enforcement agencies and prosecutors have answered those questions adequately. There is a need as well for state law to take care of those situations when there is a timely need to act promptly and utilize the state law that covers these same acts. I don’t think anybody would argue with that.
There were a lot of concerns about individual rights being somehow constitutionally impaired; I think those questions have been answered adequately. The amended bill that you see before you redefines an act of terrorism. If there is any particular section that you still have questions about I would attempt to respond to them, but I think I would be taking up your valuable time. I know you have a Floor session coming up.
We need to, as soon as possible, get a measure on the books. If there is a need to get together and see what differences there are in the bills, I certainly have no pride of authorship on this. I think this is a responsibility for each and every one of us who have been elected to this Legislature to make sure that we leave here with an adequate legal response that gives state agencies and officials the ability and the tools that they need to act and in concert, if necessary, with the federal authorities.
Chairman Anderson:
Our committee policy analyst has prepared a comparison of the two pieces of legislation (Exhibit E) and we would be happy to provide you with a copy of that comparison. They are substantially the same in most general areas of the bill; I agree we can work out the differences between A.B. 250 and S.B. 38 and come up with one that meets both the Speaker’s and your requirements.
Senator Raggio:
I would be happy to work with your staff and the Committee to see what we can hammer out. If we get one that’s agreeable and everybody wants their name on it, that’s fine.
Chairman Anderson:
Questions for Senator Raggio? Additional testimony on S.B. 38?
Paul Grace, Executive Director, Nevada Victory Fund, representing the Nevada State Rifle and Pistol Association, and a member of the Washoe County Homeland Defense Council:
[Introduced himself and submitted Exhibit F, Exhibit G, and Exhibit H.] I have submitted some handouts related to Title 18. The weapons of mass destruction (WMD) definition should also be addressed in all of these bills, S.B. 38 as well as A.B. 441 and A.B. 250. In a night school class, “WMD for Dummies” (Exhibit H), [I realized I] was myself [a dummy] when I started the class.
The federal definition of WMD is included in Exhibit G. The current [definition of] WMD, used in many places in the bills, is a weapon or device that can seriously injure or kill more than one person. Nowhere in the federal regulations is “more than one person” used in that context. You will note in [Title 18, Part I, Chapter 113B, Section] 2332a, it is mentioned a crime “against any person…and the results of such use affect interstate or foreign commerce…” that is the only place “one person” is brought up.
There is danger in the way the current definition shows up in the bills repeatedly; it could very easily refer to a crazy person who takes a knife and seriously wounds two people, which is “more than one person.” A zealous prosecutor could decide that, in spite of all the laws we already have for punishment of such an offense, the person could be charged under the higher level of penalty having used a weapon of mass destruction because it was a device capable of injuring or killing “more than one person.”
I have spoken with Senator Raggio and he is in agreement to make this change; you could certainly talk in detail with him about that. I would like to see [the definition of WMD] changed to what the federal government has for two reasons:
1. To eliminate firearms, knives, clubs, sharp rocks; I don’t want to see those show up as weapons of mass destruction in any newspaper article.
2. It certainly would not help the Nevada economy if some prosecutor decided that “this is a WMD crime, I am going to go for a tougher penalty,” and it comes out in the newspaper that Nevada is using WMDs.
One member of the Washoe County Homeland Defense Council, Dr. Ronald Smith, an internist who claims that he gives medical advice to Senator Raggio, said that they must mean any device that will cause “widespread illness or injury in the population,” not just more than one person.
Assemblyman Gustavson:
I have been battling this myself since the bill went out of here; I have the same questions as Mr. Grace had regarding the language put into the bill. It did concern me that any type of weapon, gun, pistol, revolver, shotgun, or anything could be used and described as a WMD if it injured more than one person. I have always been under the impression that a WMD would be something biological or a kind of weapon that would kill a mass amount of people.
Assemblywoman Angle:
On this definition from the federal government, was it FEMA (Federal Emergency Management Agency) that did the definition? Where did we get this definition? Where are they using it? If we do not adopt this definition, if somehow our definition is in conflict with this one, what kinds of problems do you foresee?
Paul Grace:
The red print on the sheet that I gave you (Exhibit G), I reference just above [that definition] that I got it out of Title 18. It is the one used by FEMA in their information to the states under the FEMA planning guide in 2002. In our class, we had a representative from the BATFE (Bureau of Alcohol, Tobacco, Firearms and Explosives); they added the “E” this year to cover explosives. We had Secret Service people, FBI (Federal Bureau of Investigation) people, and all sorts of retired government agency people. We pretty much unanimously said that the federal definition, word for word from FEMA, is the one they would like to see. I brought S.B. 38 to the Committee; we decided that was the definition we would like to see. My only reference is to go to the current law in Title 18.
The real problem that bothers me, besides the one of an overzealous prosecutor deciding to use this to prosecute a firearm, knife, club, or whatever injury, is that we don’t want to look any more paranoid than I am already after going to the course. If our definition is far broader and includes a lot of other things, I can only see confusion between that and any federal prosecution that might occur. Inconsistency in the law is a real problem. I have spoken to the Office of the Attorney General about it and they are trying to decide what they want to say about it; I have not heard them yet. Inconsistency is bad for law enforcement; they don’t know what they should do about it.
Assemblyman Carpenter:
I understand that maybe you think that a firearm if it kills more than one person is going to have a far-reaching effect, but in the definition that you gave us it wasn’t a weapon they used, but it was a device, an airplane, they used that killed many people. I think we need to look at both of these definitions and make sure that will fit the situation that did happen on September 11.
Paul Grace:
I have no argument whatsoever with that. You don’t necessarily want to use word for word what the federal government says. However, we should make sure that we eliminate weapons that are already covered under Nevada law quite extensively. The death penalty statutes are clear on what kind of weapon and how many people are injured, et cetera. I was only looking for consistency.
Chairman Anderson:
It would appear, and Mr. Carpenter’s point is, that the
airplanes that went into the World Trade Center twin towers in New York City
would not fit the definition of WMD as you have submitted and I am not sure it
would fit ours either.
Paul Grace:
I think the intent was the release of a huge volume of fuel when the planes hit, which would possibly tie in well, although I don’t have any argument with you regarding having to expand it. The real point of interest relates to the “more than one person” phrase that appears throughout the bill, which is not anywhere in the federal regulations. The “more than one person” rule causes great concern. The bill drafters [need to] include something that covers the situation, eliminates “one person,” and goes to what the dictionary indicates as a mass, which is a whole lot of people or something. The “mass” is the problem that is poorly defined in the bills.
Assemblyman Mortenson:
The fuel could be considered a WMD but that doesn’t even work in this definition as I can see. It is neither toxic nor poisonous in its principal reason for use and it is not a disease organism.
Chairman Anderson:
We will take it into consideration.
Paul Grace:
I don’t disagree. I did not write this definition; I took it straight out of the FEMA planning guide. Referring to Exhibit H, weapon types that are considered WMD by the federal government are:
None of those are specifically listed, but any weapon that caused death and serious bodily injury is meant to be, by the federal people, you’d have to ask them specifically, I am sure the FEMA people could expand on it. I agree that an airplane is not considered a lethal weapon in the normal sense of the word.
Janine Hansen:
I have already mentioned the issue of the definition of terrorism, which is the same in this bill; I won’t reiterate that. I will make one point on the comparison (Exhibit E). You will notice it identifies the fact that in S.B. 38… [Chairman Anderson asked Ms. Hansen to give her testimony and not read Exhibit E.] I think that A.B. 250 is much better where it specifically says in Section 13 that a person “intentionally” commits these acts. In Senate Bill 38, Section 12, page 8, line 3, it does not use the word “intentionally.” Therefore, a person might by happenstance be caught up in these. I think it is very important to include that and I would encourage you to do so in S.B. 38.
Lucille Lusk:
[I have] similar concerns as those previously expressed. I would like to share with the Committee that with the authorization of the Speaker, in the Senate we offered a single amendment to A.B. 250 to change the definition of “weapon of mass destruction” to “a device designed or intended to create a great risk of death or substantial bodily harm to large numbers of people.” The Senate has not acted upon that, so I can’t second-guess them as to whether they will.
However, Senator Terry Care made a suggestion for a further possibility that perhaps it would be good to say “a device that is designed or intended by its user to create a great risk of death or substantial bodily harm to large numbers of people.” That might be something to be considered in terms of addressing the airplane because its user certainly did intend for it to be used in that manner even though it was not designed for that use. I too would say that A.B. 250, as it left this Committee, was far better than S.B. 38, and to the extent that you can replace those provisions that overlap in S.B. 38 with those of A.B. 250, we would support that move.
Chairman Anderson:
For those of you who are not aware, when you have conflicting pieces of legislation, one of the things you look at is the bill draft request number. The custom is that the number that is the lowest is the bill that you move with. It takes the arbitrary…the person who had the first idea gets the credit. As it turns out, the Speaker’s bill [A.B. 250] has the lowest number, BDR 15-49. Senate Bill 38 is BDR 15-89. That would appear that it makes the Speaker’s bill [A.B. 250] the bill of opportunity. I will talk to my counterpart on the Senate side and see if it would be the desire of the Senate to put the list of Senators, which I believe is the Senate in its entirety except Senator Coffin, [on A.B. 250]. I will suggest to the Senate that the Speaker’s bill [A.B. 250] becomes the carrier; we’ll see if that’s agreeable. We, of course, have the option if the Speaker wants us to deal with this bill [S.B. 38] to add his name to this bill and the rest of the material from A.B. 250. That has to be worked out between the Majority Leader of the Senate and the Speaker of the Assembly.
Anybody else wishing to speak on S.B. 38?
Jim Nadeau, representing Washoe County Sheriff’s Office:
[Introduced himself.] We just want to go on record supporting the bill.
Stan Olsen, Lieutenant, Government Liaison, Office of Intergovernmental Services, Las Vegas Metropolitan Police Department:
[Introduced himself.] [We are] also on record supporting the bill.
Chairman Anderson:
Anybody else who wants to be on the record? We are adjourned [at 9:49 a.m.] Vice Chairman Oceguera has the Chair on Monday [May 12, 2003]; I will be back on Tuesday.
RESPECTFULLY SUBMITTED:
Deborah Rengler
Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: