MINUTES OF MEETING

      ASSEMBLY COMMITTEE ON GOVERNMENT AFFAIRS

 

      Sixty-seventh Session

      April 14, 1993

 

 

 

The Assembly Committee on Government Affairs was called to order by Chairman Val Z. Garner at 8:54 a.m., Wednesday, April 14, 1993, in Room 330 of the Legislative Building, Carson City, Nevada.  Exhibit A is the Meeting Agenda.  Exhibit B is the Attendance Roster.

 

 

COMMITTEE MEMBERS PRESENT:

 

      Mr. Val Z. Garner, Chairman

      Mr. Rick C. Bennett, Vice Chairman

      Mrs. Kathy M. Augustine

      Mr. Douglas A. Bache

      Mrs. Marcia de Braga

      Mr. Pete Ernaut

      Mrs. Vivian L. Freeman

      Mr. Lynn Hettrick

      Mrs. Erin Kenny

      Mrs. Joan A. Lambert

      Mrs. Gene W. Segerblom

     

 

COMMITTEE MEMBERS ABSENT:

 

      Mr. James W. McGaughey        (Excused)

      Mr. Roy Neighbors             (Excused)

      Mr. Wendell P. Williams      (Excused)

 

 

GUEST LEGISLATORS PRESENT:

 

      None

 

STAFF MEMBERS PRESENT:

 

      Dana Bennett, Research Analyst

 

OTHERS PRESENT:

 

      Guy Rocha, Administrator, State Archives and Records; Pat Coward, Economic Development Authority of Western Nevada and Nevada Development Authority; O.C. Lee, Nevada Conference of Police and Sheriffs; Mike Johaneson, Service Employees International Union; Donald Klasic, General Counsel, University of Nevada; Evan Wallach, General Counsel, Nevada Press Association; Ande Engleman, Nevada Press Association; William Isaeff, Chief Deputy City Attorney, City of Reno; Carole Vilardo, Nevada Taxpayers Association; Nancy Carr, Lyon County Recorder; Joe Melcher, Washoe County Recorder; Margi Grein, Director of Finance, Nevada State Contractors Board; Melanie Crossley, Deputy Attorney General, Office of the Attorney General; Arlene Rablovsky, Director, Police Records Section, Las Vegas Metropolitan Police Department; Wally Lauzan, Assistant Chief of Administrative Services, Department of Motor Vehicles; Darcy Coss, Deputy Attorney General, Department of Motor Vehicles; Lucille Lusk, Nevada Coalition of Conservative Citizens; Anita LaRuy, City of North Las Vegas; and Eric Dabney, Director of Library, Parks & Recreation, City of North Las Vegas.

 

 

ASSEMBLY BILL 364 -     Makes various changes regarding access to public books and records.

 

ASSEMBLY BILL 365 -     Substitutes civil enforcement of access to public records for criminal penalty.

 

ASSEMBLY BILL 366 -     Establishes procedures for public inspection of public records.

 

 

Chairman Garner opened the hearings on AB 364, AB 365 and AB 366 as there were those who had not had the opportunity to testify on April 13, 1993.  Mr. Garner called the testifiers in order as they appeared on Exhibit B.

 

Jerry Zadny, Administrator, Division of Mental Health and Mental Retardation, was unable to appear but, for the record, submitted prepared testimony (Exhibit C) in opposition to AB 364.

 

Guy Rocha, Administrator, State Archives and Records, in opposition to AB 364, AB 365 and AB 366, read his opposing testimony (Exhibit D) into the record.

 

Pat Coward, Economic Development Authority of Western Nevada (EDAWN) and Nevada Development Authority (NDA), explained the purpose and mission of the development authorities, how competitive it had become with other states to draw new business, and how crucial it was to keep the confidentiality of information when dealing with potential businesses moving into the area.  He said, "This is something that has a lot of the people concerned, maintaining that confidentiality....A business looking at making a move requires as much as two years work before anything materializes and a firm decision is made."  He gave the committee an example of a business which ultimately did not choose the Reno area due to information which had been leaked.  He recognized the need to maintain open records for the public in many areas but not necessarily when dealing with potential clients coming into the area.  Mr. Coward then proposed an amendment to AB 364 which would provide client confidentiality (Exhibit E).

 

Mrs. Lambert asked if the boards of EDAWN and NDA were covered by the open meeting law, the answer was no.

 

Mr. Garner again asked the audience to provide written amendments to the chair.

 

O.C. Lee, Nevada Conference of Police and Sheriffs, and representing Mark Balin, Professional Fire Fighters of Nevada,

said, "We are opposed to the personnel section of the records in AB 364.  That does not mean that we have any opinion of any other portion of the bills before you."  Mr. Lee referenced the yearly physical examinations, required by law of all police officers and fire fighters, which went into the personnel records.  He suggested health records would immediately become public information, therefore, he strongly opposed that section of the bill.

 

Mrs. Augustine asked if it was true police officers did not have home addresses and telephone numbers published for their own protection, Mr. Lee agreed.

 

Mike Johaneson, Service Employees International Union, said he too was speaking against the personnel section of AB 364.  He continued, "Presently there is quite a body of law regarding the differences, the arguments between privacy and public record, and access to public files, personnel files, that have come about through the Freedom of Information Act.  What this bill does is it goes far beyond the existing law and what is accessible by the media and the public record.  There is a lot of stuff in personnel files that are very private and would create significant problems for a number of employees.  We've gone through this with other bills and if the committee would like, I will provide some court background, some case law on this thing from the Freedom of Information Act.  But I don't see anything this bill does but replace existing federal law and go beyond the Freedom of Information Act to allow media access to personnel files.  Accordingly, we strongly oppose that section of the law.  The other thing I would like to suggest, is if you are going to entertain amendments excluding certain employees from this bill as was discussed yesterday, I would hope you would also add county and state employees."

 

Donald Klasic, General Counsel, University of Nevada, testified he too had served on the advisory committee.  Additionally, he said the Board of Regents had authorized him to inform the committee the Board supported all five bills with two exceptions, both in AB 364.  He identified one objection as being on Page 3, lines 24-29 saying the committee had heard enough testimony, specifically Mr. Dyer's, stating why the records ought to be closed and presented the committee with the document which had been generated out of the deliberations of the advisory committee (Exhibit F).  He then pointed out the language which the University proposed as amendments and also the original language the advisory committee had recommended.  The second objection was Section 3 of AB 364, the reverse balancing test.  Again, he referenced previous testimony, specifically that of Mr. Isaeff, and detailed how it would work.  In further testimony, Mr. Klasic explained his understanding of the Bradshaw case, the correct rendering of the reverse balancing test, his desire to avoid litigation over what constituted public records, how criminal investigations worked, and mentioned a possible fiscal note.

 

Mrs. Augustine queried the date shown on the bill versus the date shown on the proposed amendment.  Mr. Klasic explained the intent had not been to postpone the legislation to 1995, but to retain the 1994 date.  The error had occurred in the drafting process.

 

Mr. Hettrick commented, "You just said files could be open on an investigation if it wasn't going to harm anyone."  He then asked,  "Is that the actual language?  The question which was raised yesterday, as I recall, is we could have an investigative file with all kinds of allegations, and etc., and that releasing that file could harm people.  If in fact the judge's ruling in Bradshaw says you can't release information that would be harmful, is that going to protect those kinds of files." 

 

Mr. Klasic responded, "It might not.  I agree that is going to be a problem."  He described how the Bradshaw case applied and said, "The courts don't get down to the nitty gritty about the raw data which may actually contain defamatory and false information, and there is a true problem there."

 

Exhibit G was submitted to the committee secretary on behalf of James Penrose.  It contained the amendments as suggested in the testimony of Mike Dyer on April 13, 1993.  

 

Evan Wallach, General Counsel, Nevada Press Association, was given the opportunity to respond to the testimony of those in opposition to AB 364, AB 365 and AB 366.

 

Mrs. Lambert, in an effort to understand the balancing test, stated an example.  Mr. Wallach replied the employee, as stated in the example, was exempt if the information was released in good faith.  Mr. Wallach then gave his own examples of safety valves.

 

Mrs. Augustine wanted clarification on the statement "request for documents were always denied."  Mr. Wallach clarified, "When it comes to me as counsel for the Press Association, and I get into it, my uniform experience has been when dealing with government officials applying the balancing test, they have always applied the balancing test against my clients.  And that is true, every single time."

 

Ande Engleman, Nevada Press Association, added, "Mr. Wallach is not called in on an instance where the press has no problem obtaining documents.  He is only called when a problem has evolved."

 

The hearings on AB 364, AB 365 and AB 366, were closed with no action taken.

 

 

ASSEMBLY BILL 367 -     Defines "public record" to accommodate various forms in which records are maintained.

 

ASSEMBLY BILL 368 -     Requires charges for copies of public records not to exceed cost.

 

Mr. Wallach explained the purpose of AB 367 and AB 368.  He agreed with Mr. Isaeff's testimony of April 13, 1993, saying there definitely was a conflict with the definition of "governmental entity" in AB 367 which would have to be resolved.  He said he preferred the broader of the two definitions.  As for AB 368, he said it was the intent of the subcommittee to balance the cost of providing the service with the need to make the cost reasonable to the public, detailing the compromise which was reached. 

 

Ande Engleman added she believed AB 368 set up reasonable costs for copies and hoped the copies would not run more than 25 cents per copy.  She pointed out the Secretary of State's budget was largely supported by copying fees and, therefore, urged deleting the items which pertained to the Secretary of State's office, excepting the elections department which should charge a reasonable fee but not a $1 per page (See Exhibit H).  Regarding AB 367, Ms. Engleman then detailed how other states were handling private/public partnerships, what was opened and what was not.

 

Mrs. Freeman asked how private/public partnerships worked in actual practice.  Ms. Engleman replied, "What they have found is that it works best if the governmental body maintains the records rather than the private company."  When asked if the system was working to the people's satisfaction, the reply was, "Yes, so long as people set out with a goal of ensuring that it will work, it can work."

 

Mr. Wallach concluded by saying the purpose of the bills was to eliminate roadblocks.  He said, "The cost should simply be a neutral wash, it shouldn't operate as a means of keeping a member of the public from obtaining information."

 

William Isaeff, Chief Deputy City Attorney, City of Reno, spoke in opposition to AB 367.  He commented on Mrs. Freeman's question regarding private/public partnerships, pointed out the definition of "public record" was not the same in AB 367 as it was in AB 364, and suggested the need for a definition of "public record" was absolutely critical, stating the reasons why.  In closing testimony, Mr. Isaeff said, "This committee, if it did nothing else with these five bills, in adopting a definition of 'public record,' it would be making a great step forward for all concerned."

 

Carole Vilardo, Nevada Taxpayers Association, spoke in favor of AB 368 and urged the committee to leave the language intact.  She then gave specific reasons why the current cost of $1 per page was unreasonable.  In conclusion Ms. Vilardo stated, "I do not think government should be in the business to make money off of that charge because we are impacting the public's right to know at a $1 a page copy."

 

Nancy Carr, Lyon County Recorder, stated she was speaking for recorders of Elko, Clark, Washoe, Churchill, Douglas, Storey, Eureka, Humboldt, Carson, White Pine and Nye Counties who were all opposed to the removal of the $1 copy fee.  She presented prepared testimony (Exhibit I) to the committee.

 

Mrs. Augustine wanted clarification of the copy charges referenced on page 7, line 15, and those stated on page 10.  Ms. Carr explained the $1 charge spoken of on page 7 was for microfiche copies and the 25 cent charge spoken of on page 10 was for photostatic copies.  Ms. Carr added everything in the recorder's office was on microfiche.  Mrs. Augustine then explained she had been confused because she thought the testifiers were complaining about paying a $1.00 for a photostatic copy.

 

Joe Melcher, Washoe County Recorder, said he wanted to point out the fiscal impact on Washoe County for real estate and map copies was $62,000 for fiscal year 1991-1992.  In discussions with Clark County it had been mentioned the amount was considerably more.  Stating various reasons, he said $1.00 was reasonable.

 

Margi Grein, Director of Finance, Nevada State Contractors Board, stated she was concerned about the term "electronic data or other material" in AB 367, as it could possibly jeopardize security to her organization's system records.  In addition she said, "AB 368 may mandate, to a large extent, to segregate the confidential records from the non-confidential records....I'm not certain if this bill will let us recoup our costs for that because of the volume of information."

 

Melanie Crossley, Deputy Attorney General, Office of the Attorney General, read her opposing testimony into the record (Exhibit J).  It also contained a proposed amendment to AB 368.

 

Arlene Rablovsky, Director, Police Records Section, Las Vegas Metropolitan Police Department, concurred with opponents comments.

 

Wally Lauzan, Assistant Chief of Administrative Services, Department of Motor Vehicles (DMV), testified, "We operate an entire division staffed with 17 people who provide information in various formats to the public.  We collected as revenue in fiscal year 1992, $3.8 million.  We reverted in that same year $3.3 million.  I just wanted to state that the impact of this bill will cause a loss to the state of $3.4 million in 1994, and $3.6 million in fiscal year 1995."

 

Mrs. Augustine asked how the $3.8 million was generated.  Mr. Lauzan answered from copies, other services provided by DMV, and from the record search division.

 

Darcy Coss, Deputy Attorney General, Department of Motor Vehicles, added, "In legislative session 1991, DMV was asked to raise all search and copying costs to meet a budget....I think there was some misunderstanding yesterday.  The department raises $3.9 million a year in record searches and copying.  That is not only for commercial sales.  I think there was a misunderstanding yesterday.  We only raise $21,000 and some change in commercial sales.  The rest of this money is raised pursuant to searches, drivers license records, registration records and copying costs."

 

Mrs. Augustine wanted to know if it was the public who paid the fees, Mr. Lauzan replied yes, oftentimes it was.  Ms. Lauzan then explained the fee structure for various searches.  Mrs. Augustine commented it seemed like an amazing amount of money for people requesting other information, and asked if that was where the bulk of money came from.  Ms. Coss said no, it was from insurance companies and other sources.  A list (Exhibit K) was  then provided indicating what type of information was released and to whom.

 

Mrs. Augustine acknowledged the list but said it did not contain a breakdown of where the majority of the $3.8 million came from.  Ms. Coss then stated Joyce Fogliani, Supervisor of Record Services, who was seated in the audience, had indicated most of the money was generated from the public.

 

Mrs. Lambert asked how much a vehicle VIN number search was.  Ms. Coss replied $5 for vehicle title, $5 for vehicle registration, and $7 for vehicle history.  When asked if DMV did out-of-state searches, the reply was yes.  When asked how much the out-of-state search was, Ms. Coss said she would obtain the information for Mrs. Lambert.

 

In conclusion, Mr. Lauzan said the point he wanted to make was there was a graduated structure of various fees.  A reduction in the fees would deny the state $3.5 million in revenue.

 

Mrs. Kenny wanted to know how the $3.5 million would be made up if the legislation passed.  Mr. Lauzan answered, "That is money that is reverted back to the highway fund.  This department pays for itself from the revenue generated from these fees.  I would assume if we're allowed to charge whatever a reasonable fee is, that fee would be the same as what it costs us to run that department.  We don't have to make up the money, we would simply charge the fee that it cost us to run the department."

 

Mrs. Kenny next asked, "What is that amount?"  Mr. Lauzan replied approximately $.5 million.  Ms. Coss explained current law mandated the way DMV operated.

 

Mrs. Freeman questioned how $3.8 million related to total budget.  Mr. Lauzan answered somewhere in the neighborhood of $100 million but he added, "This is revenue, it is not monies that are budgeted."

 

Lucille Lusk, Nevada Coalition of Conservative Citizens, stated her concern was whenever impact was discussed it always related to the impact on government.  She urged the committee to consider the impact on the individual citizen.  Addressing her comments to AB 367, Ms. Lusk asked "electronic data" be considered in the definition of "public records," and regarding AB 368, she queried if Section 1, item 1, "written notice of a public meeting" would still be provided free to the citizens.  In closing she said, "Our concern and the reason we support AB 368 is the Clark County Commission does, in fact, charge a $20 fee to receive those notices of the public meetings.  That is $20 for six months.  We have never had a real big problem with that because $20 over a six month period is not excessive.  We would hate to see that increased to a per page charge."  She too was strongly opposed to the $1 per page charge and said, "That has a distinct chilling effect on the right of citizens to be knowledgeable participants in their government."  In closing, she did agree there may be certain types of records which might require the $1 fee.

 

William Isaeff, spoke in support of AB 368 but cautioned the committee about large businesses making large requests which he felt should be charged accordingly, not creating new records from old records, and sanitizing records for an appropriate fee.

 

Mrs. Lambert asked for an example of commercial companies requesting large amounts of data.  Mr. Isaeff referenced DMV with its request from mailing establishments and searches of University ticket sales.

 

The hearings on AB 367 and AB 368 were closed with no action taken.

 

ASSEMBLY BILL NO. 441 -Authorizes creation of municipal library district in North Las Vegas.

 

Anita LaRuy, City of North Las Vegas, testified in support of AB 441.  She explained the legislation would allow the city to amend its charter to create a municipal library district.  She continued, "A couple of weeks ago, testifying on a related bill, I mentioned to you that our city's library is funded by the general fund.  As everyone else in the state, we are having some budgetary problems and this prompted us to come to you to see if we could create our own library district.  Assemblyman Tom Collins....asked me to convey to you his support of this legislation."

 

Erick Dabney, Director of Library, Parks and Recreation, read Exhibit L into the record in support of AB 441.

 

Mrs. Segerblom mentioned she had noticed the amount of money spent on books had been considerably less than what other communities spent.  She said, "You hope this will make you more money?  It sounds like you are going to have less unless your city council comes through."  Mr. Dabney replied,  "By virtue of the assessed rate, we would be taking in less than what we are giving in the general fund.  We intend to, at least, maintain this same level through the next fiscal year as we are doing now, and by virtue of the library district assessment, we expect that we will be able to have considerably more to dedicate towards our library in future years."  More discussion followed regarding the lack of a director during the last year.

 

Mr. Hettrick questioned, "You said the people who were in that 11.3 percent, that were in the other districts were going to pay double tax?"  Mr. Dabney replied, "That is correct.  According to my finance director, they are currently paying into the Las Vegas, Clark County Library District and they would be assessed in the North Las Vegas Library District too."  Mr. Hettrick said he read the bill differently and read,....so it would appear to me they wouldn't be included in your library district if you created one here."  Mr. Dabney agreed saying, "I think that is some erroneous information he did give me.  I, on the plane last night, was reading through the bill again and I certainly concur with you."  Mr. Hettrick then asked if there would be a problem to send the legislation to the vote of the people as it increased the tax rate and if the ad valorem tax rate had reached its cap.  Mr. Dabney answered no to the latter and said to the former, "As far as the vote of the people, we are hoping to be able to get this on in our next fiscal year.  Our next election would be two years down the road unless we went for a special election.  If we went for a special election, I am sure most of you legislators know that can be quite expensive.  Also, I don't believe by going to the vote of people we would be able to create a library district.  We could get a tax override but we couldn't create a library district."

 

Mrs. Freeman wanted to know why the city council was being allowed to serve as the governing authority rather than an appointed board of trustees.  Mrs. LaRuy replied it had been at the recommendation of the Legislative Counsel Bureau.  When asked if there were any feelings, one way or the other, regarding the issue, Mrs. LaRuy said, "The council loves it."

 

Chairman Garner said the committee would not be interested in processing the legislation until Mr. Hettrick's question regarding double taxation was resolved.  Mrs. LaRuy assured Mr. Garner he would have the information forthwith.

 

The hearing on AB 441 was closed with no action taken.

 

In further business, Chairman Garner requested committee introduction of Bill Draft Request R-1887.

 

BILL DRAFT REQUEST R-1887 -   Urges Congress to review Social Security offset and windfall provisions.

 

      ASSEMBLYMAN BENNETT MOVED FOR COMMITTEE INTRODUCTION OF BDR R-1887.

 

      ASSEMBLYMAN SEGERBLOM SECONDED THE MOTION.

 

      THE MOTION CARRIED UNANIMOUSLY.

     

Chairman Garner asked the committee to review AB 376 as he was prepared to take action on the bill in the next committee meeting.

 

There being no further business to come before committee, the meeting was adjourned at 10:42 a.m.

 

 

      RESPECTFULLY SUBMITTED:

 

 

                             

      BETTY WILLS

      Committee Secretary

 

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Assembly Committee on Government Affairs

April 14, 1993

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