MINUTES OF MEETING
ASSEMBLY COMMITTEE ON GOVERNMENT AFFAIRS
Sixty-seventh Session
April 30, 1993
The Assembly Committee on Government Affairs was called to order by Chairman Val Z. Garner at 8:18 a.m. Friday, April 30, 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
Mr. James W. McGaughey
Mr. Roy Neighbors
Mrs. Gene W. Segerblom
Mr. Wendell P. Williams
COMMITTEE MEMBERS ABSENT:
None
GUEST LEGISLATORS PRESENT:
Senator Bob Coffin, Clark County Senatorial District 3.
STAFF MEMBERS PRESENT:
Mrs. Dana Bennett, Senior Research Analyst
OTHERS PRESENT:
Ms. Ande Engleman, Nevada Press Association; Ms. Debbie Cahill, Nevada State Education Association; Ms. Carole Vilardo, Nevada Taxpayers Association; Ms. Irene Porter, Executive Director Southern Nevada Homebuilders Association; Ms. Sandra Johnson, Athletic Commission; Mr. Henry Etchemendy, Executive Director of Nevada Association of School Boards; Mr. Greg Betts, Rural School District; Mr. Roger Means, Washoe County School District; Mr. Robert Auer, Deputy Attorney General; Mr. Bob Hadfield, Executive Director of Nevada Association of Counties; Mr. Marv Teixeira, Carson City Mayor; Mr. John Pappageorge, Clark County; Ms. Gloria Armendariz, Executive Director of Nevada State Board of Architecture; Mr. Tom Grady, Nevada League of Cities; Ms. Anita LaRuy, City of North Las Vegas; Mr. Kurt Fritsch, City of Henderson; Mr. Donald Klasic, University of Nevada; Ms. Barbara Reid, Douglas County Clerk Treasurer; Mr. Scott Doyle, Douglas County District Attorney.
SENATE BILL 174 - Makes various changes to provisions governing meetings of public bodies.
Senator Bob Coffin, Clark County Senatorial District 3, testified as a proponent of SB 174, indicating the reason for the bill, "Started about a year and a half ago... the reason for it is a meeting of the board of regents which occurred in early 1992 to ostensibly be a personnel session, which as you all know, is a reason to discuss the behavior or character or competence of an employee of an organization. What is alleged to have occurred, certainly by several of the regents, although arguably there is dispute... A personnel session of a fellow elected official, that in fact there were, under the cloak of a closed personnel session, a brow-beating occurred of a colleague of the board. A very unusual situation, probably not necessarily unique, but something that brought to light a problem that there was apparently no clear measure in the law which would prohibit that kind of thing. Since I think you all agree that the true decider of your fate and fortune should be the voters in your district, not necessarily those who you serve with... The Attorney General opined on this particular instance after the State Press Association protested that the closed meeting in fact met the requirements of the open meeting law... At the present time, I think the most important thing for us to do is act for open government and pass Senate Bill 174 in order that we could clear this up once and for all."
Senator Coffin indicated the bill did other things, it worked on employee rights in closed meetings and worked on the process of revealing to the public those things which in some cases might have tended to be made private by a public body. He said the bill would also prohibit a public body from discussing topics relating to the professional competence, misconduct, character or physical or mental health of an employee without delivering written notice to that person, and would change the three day notice to a five day notice for the hand delivery or personal delivery to the subject of a hearing so the person might better prepare. He stated should the public body decide to mail the notice of the meeting, a 21-day extended length of service should be given so the postal service would have the time to deliver the notice. He also indicated a record of the meeting must be made available to the person discussed upon request; the bill required a recording, if made for a closed meeting, be retained and made available to the public for inspection; and it required notice to be posted at least five working days prior to a meeting except in an emergency.
Ms. Ande Engleman, Nevada Press Association, testified the Nevada open meeting law was possibly one of the most popular laws in the state, and referenced pages two through eight of the Attorney General's Open Meeting Law Handbook (on file in Research Library) as the current open meeting law, she indicated some of the objections to language in SB 174 were already in the law, and the bill simply repeated language for purposes of adding the new section to SB 174.
Ms. Engleman noted most of the amendments came in response to complaints received over the past year and a half. She indicated it was unfortunate although there were governmental bodies which followed the open meeting law, there were others which did not, so laws needed to be passed to address those who did not comply with the spirit or letter of the law. Ms. Engleman pointed out SB 174 had been heard three times in Senate Government Affairs committee and there had been no opposition at that time. She indicated the Teachers Association would address the due process segment of Section 1, subsections 2-3 of the bill. Ms. Engleman referenced the language in Section 1, subsection 1 lines 3-5 and repeated in subsection 3, lines 18-19 stating it was already in Nevada's open meeting law.
Ms. Engleman explained the reason the three day notice was changed to a five day notice was the Attorney General had ruled an agenda must be posted or mailed three working days prior to the meeting, not counting the day of the meeting, and the agendas were not delivered in the rural areas in a timely manner; therefore, the five day notice would give the Post Office more time for delivery.
Ms. Engleman indicated there had been problems with the open meeting law where public bodies had gone into closed sessions and discussed items other than personnel characteristics which was defined for closed meetings.
Ms. Engleman referenced Section 4, subsections 3-5, indicating there had been some misunderstanding as to whether closed meetings were open for public review. She said the intent of the section was the closed meeting minutes would be confidential until the person being discussed decided to make them public, and she felt the language should be clarified to indicate that.
Ms. Debbie Cahill, Nevada State Education Association (NSEA), testified on behalf of SB 174. She indicated this bill addressed some concerns the NSEA had regarding notification of the person being discussed in closed meeting and the capability of the person being discussed to access the minutes. Ms. Cahill said NSEA supported the clarification made by Ms. Engleman regarding closed meeting minutes not becoming public record until such time as it was approved by the person discussed in meeting.
Mrs. Lambert asked how the 21 working days had been arrived at for mailing notices.
Ms. Engleman replied the Post Office had said it would have to have 21 days in order to guarantee a certified letter was delivered as it would be handled by hand all the way.
Mrs. de Braga questioned what would happen if a certified notice was sent and a receipt was not received that the person had been notified, would there be any attempt made to guarantee the person was notified.
Ms. Cahill pointed out Section 1, subsection 2(b) and answered, "A public body must receive proof of service of the notice required by this subsection before such a meeting may be held."
Extensive discussion was held regarding three and five day public notice for meetings.
Senator Coffin pointed out the bill draft request for SB 174 was requested in early 1992, introduced February 2, 1993, was available for review by everyone, was heard March 5, 1993 and had been posted more than a week before the hearing date, so adequate notice was given to all concerned who did not testify against the bill on the Senate side.
Ms. Carole Vilardo, Nevada Taxpayers Association, testified in support of SB 174 particularly for ordinances as she had a problem receiving agendas from around the state too late to attend a meeting she was interested in.
Ms. Irene Porter, Executive Director Southern Nevada Homebuilders Association, testified regarding changing the language from three to five working days referenced in Section 2, subsection 2. She stated their problem was one of not receiving the agendas and back-up material involved particularly in local governments in southern Nevada. She suggested if the three day limit was retained, it should be very clear the day of posting and the day of the meeting not be included as part of the three working days, and allow faxing of agendas and back-up material at the expense of the requestors, and all ordinances and other material be made available to the general public at the time the agenda was posted.
Ms. Sandra Johnson, Athletic Commission, testified in opposition to SB 174 and introduced a letter from the Athletic Commission Chairman Dr. Elias Ghanem (Exhibit C). She stated SB 174 had come to their attention the day before as they were understaffed, did not have an executive director and did not receive bill drafts. Ms. Johnson said their agency was rather unique as they dealt with people from outside the country and the Commission often discussed the competency and qualifications of officials who came to Nevada to judge title fights. She explained the process of receiving the names and the difficulties involved in sending certified letters to those individuals explaining their competency was being discussed in the time frame the Commission dealt with.
Ms. Johnson stressed they were greatly concerned with working within the parameters of the law, but it was not in the best interest of the public or government and would restrict the agency from operating. The Commission could not continue to operate and bring title fights to Nevada if they had to comply with the new bill.
Extensive discussion was held regarding scheduling of fights and the shortness of time for reviewing judges, etc. for the fights.
Mr. Henry Etchemendy, Executive Director of Nevada Association of School Boards (NASB), testified in support of a portion of SB 174 but objected to other portions. He stressed NASB absolutely agreed the open meeting law was necessary and supported it fully, but felt the five day posting would be difficult for those entities which met twice a month. He felt the three working days worked very well and provided plenty of notice.
Mr. Etchemendy introduced an amendment to SB 174 to delete Section 2 and 5, and remove the five day notice limit (Exhibit D). He indicated NASB agreed with the provisions contained in Section 1 from line 3 through 19 except he suggested on line 10 the five working days be changed to three working days. He further suggested a provision whereby a person could waive his right to a notice of a closed meeting, and if the public body accepted the waiver, they could hold the meeting at a mutually agreeable time.
Chairman Garner voiced his concern that so many opponents to SB 174 had showed up to testify who had not testified at the Senate level.
Discussion ensued regarding changing the noticing from five days to four instead of back to three days.
Mr. Greg Betts, Rural School District, representing the fifteen rural school districts of Nevada spoke in opposition to SB 174. He indicated his concern was with the amendment made in the Senate making the five day notice applicable to all meetings. He felt those public entities which held meetings twice monthly would have great difficulties in meeting the five working day notice criteria. He pointed out in most cases a five working day notice for a meeting held on Tuesday would mean a total of seven days counting the weekend and nine days if the meeting was on a Friday, and a board of trustees would not be able to respond to a concern for that length of time under the proposed language. He also pointed out a board of trustees could not always anticipate all the times they would need to meet, for example during negotiations.
Mr. Roger Means, Washoe County School District, testified he concurred with Mr. Etchemendy's recommendation and indicated the reason he had not testified on the Senate side was he had not had any concerns with the bill until the amendment for five days posting had been introduced and passed in the Senate.
Mr. Robert Auer, Deputy Attorney General, testified it was his understanding when Senator Coffin introduced SB 174, the main concept being changed was embodied in Section 1, subsection 1, which involved an elected person and there would not be a closed meeting to discuss his character, competence or alleged misconduct. He indicated the Attorney General's office had no position on that one way or the other, but since introduction there had been added some "tag-along amendments" and the AGs office wanted to request clarification on the issue of minutes versus recordings of meetings.
Mr. Auer stated currently public bodies had to keep written minutes of the open and closed portions of their meetings, the open meeting minutes were public record and the closed meeting minutes were non-public records and only became public once the public body determined there was no further need for confidentiality and the person who was discussed consented to release the records. Mr. Auer pointed out there was no requirement in the law to record a meeting, but if it was recorded, the tape had to be retained. He commented some public bodies recorded the open portion of a meeting and turned the recorder off during the closed portion of the meeting. Mr. Auer said the amendment under Section 4, subsection 5 would stop that practice. He maintained the problem the AGs office had was with the way the language was drafted which indicated the closed tape would be made available for inspection pursuant to subsection 4, and he felt the language in Section 4, subsection 5 should be made consistent with Section 1, subsection 2.
Mr. Auer indicated another concern was with Section 1, subsection 2 and requested the language not require receipt of notification.
Chairman Garner asked if Mr. Auer had his suggestions in writing. Mr. Auer indicated he did not but would submit at a later date.
Chairman Garner stressed anything coming before committee in terms of changes should be submitted in writing.
Mr. Bob Hadfield, Executive Director of Nevada Association of Counties, testified in opposition to portions of SB 174 as indicated in Exhibit E.
Discussion ensued between committee members, Mr. Auer and Mr. Hadfield.
Mr. Marv Teixeira, Carson City Mayor, testified in opposition to SB 174 regarding the five day notice for meetings. He supplied a meeting agenda for Carson City (Exhibit F) and explained the procedure for posting the agenda for each meeting. Mr. Teixeira stated if the notification was changed to five days they would not have enough time to do the process properly and see everyone was notified for two meetings a month.
Discussion ensued.
Mr. John Pappageorge, Clark County, reiterated previous testimony and pointed out after a commission meeting in Clark County departments had two and a half days to respond to staff to prepare the agenda as described by Mr. Teixeira.
Ms. Gloria Armendariz, Executive Director of Nevada State Board of Architecture, gave testimony in opposition to SB 174 (Exhibit G).
Mr. Tom Grady, Nevada League of Cities, testified in opposition to SB 174 indicating his concerns in Sections 1, 3 and 5 had been adequately addressed (Exhibit H).
Further discussion followed.
Ms. Anita LaRuy, City of North Las Vegas, testified in opposition to portions of SB 174 as previously indicated, specifically the three to five day change.
Mr. Kurt Fritsch, City of Henderson, testified in opposition to portions of SB 174 and handed out a memo outlining some of the problems involved in changing from three day to five day notice (Exhibit I).
Mr. Donald Klasic, General Counsel University of Nevada, testified in opposition to SB 174 and emphasized the Board of Regents had taken no position on this bill. Mr. Klasic indicated he had been asked to give brief clarification of the closed meeting by the Board of Regents which had been held January 9, 1993 (see court testimony Exhibit J), and he also commented on the effect SB 174 might have on state government agencies.
Ms. Barbara Reid, Douglas County Clerk Treasurer, gave a suggestion which she felt would solve the three day problem, if the phrase "working days" were changed to "calendar days" it would include Saturdays, Sundays and holidays and could possibly alleviate the situation.
Mr. Scott Doyle, Douglas County District Attorney, commented on Section 4, subsection 5, indicating tape recording of meetings was currently permissive under state law and with this language it might be incentive for people to stop recording their meetings.
There being no further testimony, Chairman Garner closed the hearing on SB 174.
Chairman Garner asked for committee introduction of the following bill draft request:
BILL DRAFT REQUEST 23-680 - Makes various changes relating to public employees' retirement system.
ASSEMBLYMAN KENNY MOVED FOR COMMITTEE INTRODUCTION OF BDR 23-680.
ASSEMBLY DE BRAGA SECONDED THE MOTION.
THE MOTION CARRIED. Assemblyman Freeman was not present for the vote.
There being no further business to come before committee, the meeting was adjourned at 10:00 a.m.
RESPECTFULLY SUBMITTED:
LINDA FEATHERINGILL
Committee Secretary
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Assembly Committee on Government Affairs
April 30, 1993
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