MINUTES OF THE
SENATE Committee on Government Affairs
Seventy-second Session
March 14, 2003
The Senate Committee on Government Affairs was called to order by Chairman Ann O'Connell, at 11:37 a.m., on Friday, March 14, 2003, in Room 2149 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Senator Ann O'Connell, Chairman
Senator Sandra Tiffany, Vice Chairman
Senator William J. Raggio
Senator Randolph J. Townsend
Senator Warren B. Hardy II
Senator Dina Titus
Senator Terry Care
GUEST LEGISLATORS PRESENT:
Assemblyman Thomas (Tom) J. Grady, Assembly District No. 38
STAFF MEMBERS PRESENT:
Michael Stewart, Committee Policy Analyst
Scott Wasserman, Committee Counsel
Alice Nevin, Committee Secretary
OTHERS PRESENT:
Antonio Gutierrez, Legislative Intern, University of Nevada, Las Vegas
Stacy M. Jennings, Executive Director, Commission on Ethics
Renee Parker, Chief Deputy Secretary of State, Office of the Secretary of State
Dan Musgrove, Lobbyist, Clark County
Allen Biaggi, Administrator, Division of Environmental Protection, State Department of Conservation and Natural Resources
Leo Drozdoff, Chief, Bureau of Water Pollution Control, Division of Environmental Protection, State Department of Conservation and Natural Resources
Robert S. Hadfield, Lobbyist, Nevada Association of Counties
Bruce R. Scott, Lobbyist, State Board for Financing Water Projects
Steve K. Walker, Lobbyist, City of Carson City, Douglas County, Lyon County
Chairman O’Connell:
I will open the hearing on Senate Bill (S.B.) 123.
SENATE BILL 123: Prohibits state and local governments under certain circumstances from paying for publications that prominently feature current public officers who are candidates for elective office. (BDR 24‑214)
Senator Alice Constandina (Dina) Titus, Clark County Senatorial District No. 7:
I would like to introduce Antonio Gutierrez, my intern and an honor student at the University of Nevada, Las Vegas. He will give most of the testimony.
Just briefly, S.B. 123 is a bill inspired by an article (Exhibit C) that appeared in Time Magazine. During the last campaign, a number of public officials in Nevada popped up in television advertisements and newsletters promoting the activities of their offices. Not only is this an inappropriate exploitation of public dollars, but also it creates an unfair advantage for incumbents going into reelection by giving them a free vehicle for getting their names and faces out to the electorate.
Senate Bill 123 prohibits a government agency from spending money on a pamphlet, brochure, or advertisement during the campaign cycle that prominently features the activities of a current public officer of that particular entity, who is a candidate for reelection.
The Commission on Ethics has suggested an amendment which I support. It would allow them to go after an individual who causes this to happen, because the bill, as written, prohibits the agency from doing it.
Let me point out Assemblyman David R. Parks, Assembly District No. 41, had a similar bill draft in the Assembly. Since this is moving forward, he will withdraw his bill. If we do an amendment, he would like to add his name as a cosponsor to this bill.
It is interesting to note local governments have already recognized this as a problem. I know the city of Las Vegas and Clark County have enacted policies where they do not let members of the council or commission use the public television stations to do call-in shows once they are declared as candidates, in recognition of the public perception and the problem of using public dollars for reelection. Mr. Gutierrez will give you a little legal background and comparable State data.
Antonio Gutierrez, Legislative Intern, University of Nevada, Las Vegas:
Please refer to “Laws Enacted by States Across the Nation Relating to S.B. 123,” pages 1 and 2 (Exhibit D). I will submit my testimony for the record (Exhibit E).
Senator Tiffany:
I am very interested in this issue. My question is you are preventing certain government agencies from doing this, but there is nothing that says an agency could not commend me as being, say, a city councilman in something they have placed out. So, you eliminate one agency, but not an agency recommending that another agency or candidate be commended.
Senator Titus:
I think you could remedy that with the ethics commission amendment. If it was done by another agency and you did not have anything to do with it, we do not want to put the blame on you. But if you convinced the agency to put the information out, then it could be an ethics complaint.
Senator Tiffany:
I am not sure it is a big problem, but I have seen it indirectly and I have seen it when it is rather blatant. You might want to try to close the loophole.
Senator Townsend:
You referred to Vermont. Is there a reason we do not want to go to that standard? I think the issue is important.
Senator Titus:
No, we put the request in for a bill draft. This is the form it came out in, and we wanted to move the bill. If you want to amend it to make it tougher, we do not have any objection.
Mr. Gutierrez:
During my research, I wanted to bring up concrete examples of what other states across the nation have done as well as our federal government.
Chairman O'Connell:
Is there a copy of the amendment the ethics commission proposed?
Stacy M. Jennings, Executive Director, Commission on Ethics:
Last summer there was a complaint against Myrna T. Williams, Chairman, Board of Commissioners, Clark County. In her position as chairman of the county commission, she is also chairman of the water district. There was a very colorful publication distributed in English and Spanish to many of the voters of Clark County. A complaint was filed, but because of the way the ethics statutes are drafted, we could not find a violation. We did tell Ms. Williams perhaps the timing of the publication was suspect because it did create the appearance of impropriety.
I met with Senator Titus and suggested S.B. 123 might be amended to specifically say a public officer or employee who requests or otherwise causes a government agency to issue a mailing like this could be subject to a violation under the ethics law. This would be punishable by a civil penalty of $5000 for the first willful violation, $10,000 for the second violation, and $25,000 for the third violation.
Chairman O'Connell:
Would that apply if someone who is a county officer sends out information pertaining to their office during a campaign?
Ms. Jennings:
The bill, as written with the amendment, would apply only to publications sent out after the candidacy is declared through the election cycle.
Chairman O'Connell:
If it were done before they declared their candidacy, it would not be applicable even though they were the officeholder?
Senator Raggio:
Would you say the Governor could not appear in an advertisement or promotion, at the airport to welcome people to Las Vegas, after the filing date in May? Would the mayor be on a brochure, distributed during that period of time, welcoming people to the city of Reno? I see some major concerns here. I think people who hold an elected office have to be able to appear in certain publications. They have to perform their duties. I do not want to do something that precludes what ordinarily is required or thought to be appropriate for an elected official. How does this bill differentiate from what I mentioned?
Senator Titus:
You would not want to prohibit the Legislature from handing out the brochure with our picture in it even if some of us are up for reelection. I think the key is if it prominently features the activities of the public officer. If it is a brochure welcoming people to Las Vegas, it is a lot different from using the brochure to advertise what the person is doing. Maybe we need to tighten up that definition.
Chairman O'Connell:
Mr. Wasserman, do you think Senator Raggio’s point can be addressed?
Scott Wasserman, Committee Counsel:
The bill does discuss a pamphlet, brochure, or advertisement that prominently features the activities of a current public officer. At the end of subsection 4, page 2, lines 10 through 14, of S.B. 123, it specifies what it does not include. It does not include a press release or the official Web site of an entity. We could add a paragraph there on press coverage, if your concern is actual press coverage of an event or whatever the committee wanted to exempt from coverage of the bill.
Senator Raggio:
That does not answer my concerns. I am talking about what is expected of a Governor where he is featured prominently in the front of a brochure advertising the State. You walk into an airport and see the Governor or the mayor on a video welcoming people. I do not want to preclude things that are expected of an elected officer.
Chairman O'Connell:
Mr. Gutierrez, could you share the information you received from the other states with Mr. Wasserman, so we can examine how that concern was addressed? I am sure it is applicable to all of the states.
Senator Care:
The way I read the bill, the public service announcement is filmed and given to a commercial television station, and as long as the public service announcement is taped and disseminated prior to the incumbent declaring candidacy, there is no prior restraint. The television station can run the announcement up to Election Day. Is that correct?
Ms. Jennings:
That would be my understanding. I think you are looking at the timing of when things are disseminated. A public service announcement, which was done well before the election, could be aired by an outlet whenever they choose. A public officer could not be held accountable for that.
Senator Care:
If the announcement tells us what a county commissioner does, for 15 minutes it says what the person does, it appears to be an advertisement. There has been discussion at the Clark County level and it is covered here.
Senator Titus:
Las Vegas and Clark County have already instituted policies that during the campaign season once a commissioner or councilman declares, they cannot use the public television channels to do individual call-in shows. They may be on the water district board that has a taped announcement. Already the mayor of Las Vegas has cancelled his town hall meeting and we are assuming they recognize it as a problem and have put those policies in place.
Chairman O'Connell:
Ms. Jennings, please turn over the information on your amendment to Mr. Wasserman.
Mr. Wasserman, Assemblyman Parks had a similar bill draft in the Assembly and we have had a request from Mr. Parks. If we are going to amend the bill, Mr. Parks has asked to be included on the title and we will want to do that.
Mr. Wasserman:
We will examine the information from other states to look for language to address Senator Raggio’s concerns.
Renee Parker, Chief Deputy Secretary of State, Office of the Secretary of State:
Secretary of State Dean Heller feels very strongly about adherence to campaign finance and disclosure laws. This bill is a way of ensuring elected officials cannot get around the laws. The Office of the Secretary of State fully supports this bill.
Section 1 of this bill cites Nevada Revised Statutes (NRS) 293.725 which is in Title 24. I do not know what the amendment involves, but Title 24 of NRS is enforced by the Office of the Secretary of State. If you want to put this type of provision into chapter 281 of the NRS, that is under the jurisdiction of the ethics commission. Currently NRS 293.840 would apply to the enforcement under this chapter which provides for a civil penalty up to $20,000 for violations of NRS 293. That is the current enforcement procedure and statute for violations which would apply to this provision as drafted.
A question we often receive is what does the secretary of state do? We have created a pamphlet that describes how the secretary of state serves the citizens of Nevada. Creation and distribution of this pamphlet would be prohibited during the filing period because it prominently features Secretary of State Heller and describes the duties of the office. Schools have received some information and that information would not be prohibited.
Secretary of State Heller is responsible for enforcing Title 24 of the NRS. We go to great lengths to get the people out to vote. During the May through November time period, pamphlets are created to tell why it is important to vote. Those activities would not be prohibited.
Senator Tiffany:
Does the brochure describing the functions of the Office of the Secretary of State say what he has personally done? It would not be a problem as long as he was not trying to take credit for a special program he implemented.
Ms. Parker:
No, it describes the duties of the office. It says the secretary of state is responsible for “x, y, and z,” and describes the duties of each division.
Senator Tiffany:
At the time the secretary of state is running for reelection, he should not be doing public service announcements asking people to get out and vote. Someone could be hired to do the announcements encouraging people to vote. I do not think that would be a violation. If the officeholder uses reasonable judgment, knowing the intent of this bill, I do not see how it could be violated.
Senator Raggio was saying it is permissible if they have normal duties to perform. It should not give them permission to talk about what they have done that is so special. I see a huge difference in performing a duty and taking credit for something you have done.
Senator Raggio:
This concerns me. If a pamphlet were printed and disseminated during the election period and prominently featured the activities of a current public officer, this kind of thing should be allowed. The Governor should be allowed to have a brochure where he is commonly featured. This is a perfect example.
The candidate running against the incumbent is going to cry foul under this language. They do not want anyone running for an elected position to be featured at all. I think it will be very difficult to draw the line because I do not think we should preclude an elected official, just because that official is running for reelection, from doing what he or she would ordinarily do during the course of the duties. For example, the Lieutenant Governor is prominently featured on tourism brochures and the opponent probably does not like that fact; but if this is what you are trying to get at, that is not something to be prohibited.
Chairman O'Connell:
Mr. Wasserman will see if he can come up with something.
Ms. Parker:
In my conversations with Senator Titus, it did not appear to be her intent to prohibit this type of activity. We have about 10 to 20 complaints each election cycle concerning this issue. The 2001 Legislature just added NRS 293.725 to the statutes. Our problem in enforcing the complaints has been determining to what extent the person engaged in the activities and is the person supporting a ballot question or a candidate. This bill will help with enforcement because the changes will clarify the language.
Dan Musgrove, Lobbyist, Clark County:
We do not have a problem with the bill as written, but here are two things to consider. I would caution the committee to look at a pamphlet or brochure and make sure the person is not part of an ethics complaint because they were included in something they were not aware they were a part of. I want to make sure it was clear the individual initiated something versus the person was included in something. An ethics complaint taints a candidate whether they are innocent or not. Their opponent could use the complaint to win the voters, so I want to caution you.
Assemblyman Parks’ bill is much the same except it includes television programs. We observed the same protections in our television programming. Once they file, they are not included in any of the programming other than perhaps acting as a county commissioner during a regular meeting.
We wanted to do a forum on a ballot question to present both sides in a program to get the information out to the public. I think this would be precluded, especially in Mr. Parks’ bill. A public forum might be the only opportunity for the public to understand the issues on both sides of a ballot question. We would like you to consider allowing us to present those forums to the public because we think government television channels would get the information to the public. Commercial television stations would not want to because they would not generate advertising dollars.
Chairman O'Connell:
We will close the hearing on S.B. 123 and open the hearing on S.B. 233.
SENATE BILL 233: Increases amount of general obligation bonds that State Board of Finance may issue to provide grants to certain water systems. (BDR 30-553)
Allen Biaggi, Administrator, Division of Environmental Protection, State Department of Conservation and Natural Resources:
Senate Bill 233 would allow the State Board of Finance to issue general obligation bonds of the State of Nevada in an amount of not more than $86 million to support the purposes of the State Board for Financing Water Projects. This $86 million amount represents an increase of $17 million over what is presently authorized under NRS 349.986.
The State Board for Financing Water Projects provides grants to predominantly small, rural community water systems in order to build the necessary infrastructure to ensure compliance with the federal Safe Drinking Water Act. In total, 15 of Nevada’s 17 counties have used the program.
You are receiving a handout (Exhibit F). Additionally, the board provides grants to irrigation districts for water conservation projects. To date, the board has approved projects throughout the State totaling nearly $68 million. Approximately $1 million has not been allocated; therefore, the ability to have greater bonding authority is necessary in order to continue to fund needed projects. As you may be aware, the U.S. Environmental Protection Agency has promulgated a new, lower arsenic standard. This program could be an avenue to help communities comply with this new standard.
I would also like to make this committee aware of a related bill, S.B. 200, which has been sponsored by Senators Washington, Care, Amodei, and McGinness with joint sponsors Assemblymen Marvel, Carpenter, and Grady.
SENATE BILL 200: Authorizes grants to pay certain costs associated with connections to community sewage disposal system. (BDR 30-889)
Mr. Biaggi:
This bill calls for amending the previously mentioned statute NRS 349.980 in order to fund costs associated with the abandonment of individual sewage disposal systems and the connection to a community sewage disposal system. Senate Bill 200 and Senate Bill 233 are separate requests, but are related due to their modification of NRS 349.980 and the associated bonding capacity.
Mr. Drozdoff can answer questions about financing issues.
Chairman O'Connell:
Senator Raggio, this is the fifth bill asking to increase their bonding capacity under the State bonding. Would you address that for the committee?
Senator Raggio:
I know of two. These may be outside the debt limit. These have to be serviced under the State’s debt service, which is now 15 cents. They are outside the bonding limit.
Leo Drozdoff, Chief, Bureau of Water Pollution Control, Division of Environmental Protection, State Department of Conservation and Natural Resources:
These two bills are not included in the capital improvement program that uses the 15 cents.
Senator Raggio:
Senate Bill 200 had a fiscal note requiring debt service. There is no fiscal note on this because there are not any specific projects contemplated at this time?
Mr. Drozdoff:
That is my understanding. The State Board for Financing Water Projects has drawn a line in not approving any additional projects.
Senator Raggio:
Are there other projects waiting to make application? You mentioned the arsenic situation. There is a potential for a number of communities to ask for such projects, is that what you are saying?
Mr. Drozdoff:
Yes. We are just like the Office of the State Treasurer when they look at upcoming projects and use the information to form their capital improvement program. In order to generate this request before you today, we have done the same sort of analogy. We have worked with the State Health Division, evaluated projects on their priority list, and ferreted through the ones likely to come before the State Board for Financing Water Projects over the next 2 years.
Chairman O'Connell:
I believe they are S.B. 78, S.B. 141, and S.B. 200. My question is since they are asking to use the State bonding, does it matter what category? Does it impact because it is the bonding?
Senator Raggio:
I think there are different categories. These are general obligation bonds. What is used for debt service?
Mr. Drozdoff:
They are general obligation bonds, but this is a grant program so there is not a payback mechanism.
Chairman O'Connell:
I thought maybe we should look into whether we would have an impact. Mr. Wasserman, will you look into that for us?
Robert S. Hadfield, Lobbyist, Nevada Association of Counties:
This is a very valuable program. Since initiated, it has helped numerous communities address issues beyond their rate-making capability and their debt service capability. The new arsenic standard is critical for many counties in Nevada. Without additional help, I do not know how they will meet the standard. The money does not seem to be forthcoming from the people that set the standard. Within the limitations of the State of Nevada, we would urge you to give this your highest priority.
Bruce R. Scott, Lobbyist, State Board for Financing Water Projects:
As Mr. Biaggi and Mr. Drozdoff indicated, we are at the end of the allowance of the monies made available. Our program is a complement to these primarily small water systems, who also go other places for money. We have a fairly detailed basis on which we allocate dollars, depending on the ability to pay present water costs. We do not provide much more than 65 percent of the overall cost of a program.
Under this program, they go to community-development block grants and to the department of agriculture where they have a possibility of both grants and loans. We are metered by the Office of the State Treasurer in the ability of the State to generate the ability to sell bonds in order to fund us. There is a check and balance in how the money is allocated and at times we have had to stretch things because other priorities within the treasurer’s general obligation bonding program have shared or taken priority. I think there is a mechanism in place to try to make it fit. I realize it competes with other things, but I am here because I feel it deserves your approval and your establishment of a high priority.
Steve K. Walker, Lobbyist, City of Carson City, Douglas County, Lyon County:
Carson City, Douglas County, and Lyon County support this measure. I have been asked to read a letter from Steve Weissinger, Chairman, Board of Commissioners, Douglas County, into the record (Exhibit G).
Chairman O'Connell:
I will close the hearing on S.B. 233 and open the hearing on A.B. 46.
ASSEMBLY BILL 46 (1st Reprint): Revises requirements for publication of notice of certain meetings of board of county commissioners. (BDR 20‑865)
Assemblyman Thomas (Tom) J. Grady, Assembly District No. 38:
This bill was first requested by Lyon County, but it will help many of our rural counties. We had numerous meetings with the first bill with considerable input from the counties. I requested Mr. Hadfield attend with me today. Although the bill looks like it only changes a date, I would like to ask your indulgence to look at the eight different subsections under section 1 of the bill.
Looking at the bill, subsection 1 would cover any county or city meeting; subsection 2 addresses the judicial day for meetings; subsection 3 covers elections; subsection 4 says the meeting day and place as fixed by ordinance must remain unchanged, unless the notice of a proposed change is published once a week for 2 consecutive weeks in a newspaper of general circulation in the county; subsection 5 does the same for any additional meetings; subsection 6 covers the NRS 241.020 which is the open meeting law and shows there is no change to the open meeting law and you would still be required to conform to all portions of NRS 241.020; subsection 7 addresses special meetings and briefings; subsection 8 allows the commissioners to meet with congressional hearings or federal hearings as a group without violating the open meeting law in order to receive information.
Why is it necessary to make a simple change from 3 weeks to 2 weeks? Many of our rural areas have weekly newspapers. We are looking at this as a good government bill to allow notification in the newspaper without interfering with the next week’s meeting, confusing folks. For example, Lyon County meets in Yerington, but maybe a specific issue would go to either Fernley or Dayton. This would allow notification in the newspaper without interfering with the next week’s meeting, confusing folks. We are just trying to clear this up so a notification would go into the newspaper and 2 weeks later you could have the meeting following the open meeting law in this area. This would help if you were doing master plan amendments where you could actually take the elected body to the area so the people could voice their concerns.
Mr. Hadfield:
The bill says it is all about publication requirements. In reality, it is about responding to the needs of our constituents. This would allow county commissioners to meet more quickly with people over issues than they can now. Right now there is a 3-week requirement. We want to make it 2 weeks so they can be more responsive and deal with issues before they get out of hand, making them much more difficult to deal with.
The only reason why the publication requirements are getting changed is so we can meet more quickly to respond to our citizens’ needs.
Senator Tiffany:
This does not have a population cap. Are you just talking about the rural areas?
Assemblyman Grady:
It would apply to all counties. There may be an opportunity for the Clark County commissioners to meet in Mesquite. Any county could take advantage of this.
Senator Tiffany:
I would like to get an opinion from Clark County.
Assemblyman Grady:
Dan Musgrove did participate in the discussions on the Assembly side.
Mr. Walker:
Lyon and Douglas Counties support this legislation.
Chairman O'Connell:
I will close the hearing on A.B. 46 and the meeting is adjourned at 12:33 p.m.
RESPECTFULLY SUBMITTED:
Alice Nevin,
Committee Secretary
APPROVED BY:
Senator Ann O'Connell, Chairman
DATE: