MINUTES OF THE

      ASSEMBLY SELECT COMMITTEE ON CREDENTIALS

 

      Sixty-seventh Session

      January 18, 1993

 

 

 

The Assembly Select Committee on  Credentials was called to order by Chairman Myrna T. Williams at 1:55 p.m. on Monday, January 18, 1993, in Room 331 of the Legislative Building, Carson City, Nevada.

 

COMMITTEE MEMBERS PRESENT:

 

            Mrs. Myrna T. Williams, Chairman

            Mr. Robert E. Price, Vice Chairman

            Mr. Joseph E. Dini, Jr.

            Mr. Val Z. Garner

            Mr. David E. Humke

            Mrs. Joan A. Lambert

            Mr. William A. Petrak

            Mr. Gene T. Porter

            Mr. Robert M. Sader

            Mr. Scott Scherer

 

COMMITTEE MEMBERS ABSENT:

 

            None

 

 

Mrs. Williams informed the committee the purpose of the Select Committee on Credentials was to examine the contest of election filed by Brendan Trainer against Jan Evans. She asked Mr. Trainer to come forward to testify. Mr. Trainer was not in attendance. She asked for anyone representing Mr. Trainer to come forward. No one responded.

 

Mrs. Williams read an excerpt from the opinion rendered by Lorne J. Malkiewich, Legislative Counsel, in a letter addressed to Joseph E. Dini, Jr. attached as EXHIBIT A, "It is the opinion of this office that Mrs. Evans does not need to resign her position with the University of Nevada System before being seated by the Assembly." Mrs. Williams indicated she felt the contestor had misunderstood Section l of Article 3 of the Nevada constitution and Mrs. Evans had taken leave without pay from her position with the university which position and duties thereof were not created or prescribed by statute.

 

Mr. Sader requested a copy of the brief filed with the Secretary of State be included in the minutes. This brief is attached as EXHIBIT B.

 

Mr. Dini emphasized the maintaining of the Nevada Legislature as a "citizen legislature" and no one should be prohibited from running for office. He felt the election of Mrs. Evans should stand.

 

Mr. Porter commented the contest was a travesty which kept Mrs. Evans from taking part in the opening ceremonies. He felt the committee and the entire Assembly should be offended by this contest especially in light of the fact Mr. Trainer or his representative did not attend the hearing to present his case. He stressed there should be strong penalties in the future for such conduct.

 

Mrs. Williams noted a bill was being drafted addressing frivolous challenges.

 

Mr. Lorne J. Malkiewich, Legislative Counsel, reviewed the issues, the factors considered and the precedents contained in his opinion (EXHIBIT A) that Mrs. Evans should be seated.

 

Mrs. Williams read from EXHIBIT A the definition of a public officer as stated in NRS 281.005, "...a public officer is a person: elected or appointed to a position which: (a) Is established by the constitution or a statute of this state, or by a charter or ordinance of a political subdivision of this state; and (b) Involves the continuous exercise, as part of the regular and permanent administration of the government, of a public power, trust or duty." She then read Mr. Malkiewich's opinion, "There is no constitutional or statutory provision which creates the position held by Mrs. Evans. As such, she does not hold a public office in the executive branch and cannot, under the interpretation adopted by the California courts, be considered to be exercising the functions of the executive branch."

 

Mr. Humke asked if in Mr. Malkiewich's opinion, the brief was prepared by Mr. Trainor or by an attorney. Mr. Malkiewich indicated the brief was prepared by an attorney. In response to Mr. Humke's question of proper procedure for contests of election, Mr. Malkiewich indicated the Nevada constitution provided each house would judge the qualifications, elections and returns of its own members and Mr. Trainor was notified of the hearing.

 

Mrs. Williams again called for Mr. Trainor or his representative to come before the committee and received no response.

 

Mr. Scherer asked if Mr. Malkiewich had received the brief before he wrote his response. Mr. Malkiewich responded affirmatively.

 

      MR. SCHERER MOVED THE CONTEST BE REJECTED AND MRS. EVANS BE    SEATED.

 

      MRS. LAMBERT SECONDED THE MOTION.

 

      THE MOTION CARRIED UNANIMOUSLY.

 

Since there was no further business to come before the committee, the meeting was adjourned at 2:05 p.m.

 

                                                RESPECTFULLY SUBMITTED:

 

 

 

                                                ______________________

                                                Patricia Hatch

                                                Secretary

 

           

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Assembly Select Committee on Credentials

January 18, 1993

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