MINUTES OF THE
ASSEMBLY COMMITTEE ON WAYS AND MEANS
Sixty-seventh Session
June 4, 1993
The Assembly Committee on Ways and Means was called to order by Chairman Morse Arberry, Jr., at 9:42 a.m., on Friday, June 4, 1993, in Room 352 of the Legislative Building, Carson City, Nevada. EXHIBIT A is the Meeting Agenda. EXHIBIT B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Mr. Morse Arberry, Jr., Chairman
Mr. Larry L. Spitler, Vice Chairman
Mrs. Vonne Chowning
Mr. Joseph E. Dini, Jr.
Mrs. Jan Evans
Ms. Christina R. Giunchigliani
Mr. Dean A. Heller
Mr. David E. Humke
Mr. John W. Marvel
Mr. Richard Perkins
Mr. Robert E. Price
Ms. Sandra Tiffany
Mrs. Myrna T. Williams
COMMITTEE MEMBERS ABSENT:
None
STAFF MEMBERS PRESENT:
Mark Stevens, Fiscal Analyst
Gary Ghiggeri, Deputy Fiscal Analyst
AB321Revises fees for certain court-appointed attorneys in criminal proceedings.
Ms. Laura Fitzsimmons, Nevada Trial Lawyers Association and Nevada Attorneys for Criminal Justice, testified her organizations have been working behind the scenes on a compromise to AB321. She stated the result was a proposed amendment of the statutory hourly rate to $75 per hour on all cases. She explained it would be a small increase.
Chairman Arberry asked why the increase would be needed and what the rationale was to increase the hourly rate. Ms. Fitzsimmons replied this legislation addressed the statutory rate for court-appointed counsel in the State of Nevada who represented indigent people who were charged with crimes. She indicated in certain counties, this bill would only apply to attorneys who represented murderers and other people who would be faced with life sentences including representation of people charged with capital cases.
Ms. Fitzsimmons stated the hourly fee which was proposed for increase was currently $60 per hour and in 1985 the rate had been raised from $20 per hour in court or $30 per hour out of court to $40 and $60 per hour respectively. She stated the 1991 Legislature unified the rate at $60 per hour. A normal billing would be about 10 hours out of court for a serious case and one hour in court. She emphasized the increase from last session had very little fiscal impact. The hours which were spent in capital cases were very high and it was found that counsel in these cases had been unwilling to undertake representation because of the financial sacrifices.
Ms. Fitzsimmons explained the $60 per hour fee did not cover the average per attorney plus overhead costs to counties. She cited Clark County's fiscal analysis of the District Attorney's office which found $60 per attorney per hour was lower than the actual cost of keeping the office open. She stated the counties have agreed to the compromise on the hourly rate to $75 per hour in order to keep the quality of representation at a higher level on these difficult cases. She stressed the state, in the long run, would save money because more experienced counsel would take less time at all levels of litigation.
Ms. Fitzsimmons pointed out testimony before the committee regarding the Post Conviction Project also indicated better and more competent representation early on in cases saved monies at the later stages of litigation, particularly in capital cases.
Mr. Humke asked if the compromise amendment affected the second page of AB321. Mr. John Sherman, Washoe County, replied the compromise addressed line 8 on page 2 by substituting $75 for $60 and all the caps would remain the same.
Mr. Humke inquired how the court determined the "indigent" status of a defendant. Ms. Fitzsimmons replied the determination varied from district to district. She stated in Clark County the determination was made by the Public Defenders office and believed the office was quite vigilant and thorough in investigating the status of defendants. Mr. Sherman indicated Washoe County had the function within the Justice Court system which reviewed the status of defendants to determine if they could be represented by the Public Defender. He elaborated if a defendant was approved for public defender services, the office also utilized a sliding payment scale based on the ability to pay. If the defendant had any ability to pay, he was billed by the county public defenders office.
Mr. Humke asked if the recoupment legislation was being utilized and how did the indigent status determination occur in the rurals. He voiced his concern over the disparate treatment by the courts statewide. Ms. Fitzsimmons stated in the rural counties what usually occurred, was if a defendant was determined as having marginal indigent status, at the beginning of a case it was unknown if the case would go to trial and most people cannot hire a lawyer for $100,000 for a death case. Many times when the case ended, it was pleaded out and the cost was significantly less, and then the defendant could have afforded to pay the cost. At the time of ruling, often the judge would rule for payment, either partial or full, by the defendant in lesser cases. Mr. Bob Hadfield, NACO, concurred determination of status between judicial districts varied, but awareness and sensitivity was improving.
Chairman Arberry commented the costs were not included in any budgets at this time and asked where the funds would come from. Mr. Hadfield indicated the fiscal impact would be on the counties and feedback from them had centered on having better representation which would save the counties money in the long run. Ms. Fitzsimmons noted state funds would be impacted on post conviction capital cases which would be paid from out of the state public defender's budget account. She added if the public defender's budget was not sufficient to cover the costs, the monies would come from the state general fund. The impact on state funds would be minimal.
Mr. Humke emphasized the fiscal note attached was not accurate under the amended version of AB321.
Speaker Dini requested the Budget Division provide a fiscal impact statement as a result of the difference between the $100 per hour versus $75 per hour fee change. Mr. Thorne indicated the attached fiscal note addressed the State Public Defender's office only. The original increase would have been $86,000 for FY94 and $107,000 for FY95. He stated his initial revised calculation would be approximately $25,000 for FY94 and $31,000 for FY95.
BUDGET CLOSINGS
W.I.C.H.E. - ADMINISTRATION -- PAGE 172
Mr. Stevens explained, in regard to a question by Mr. Spitler, operating funds included approximately $17,500 in attorney general fees. He stated all agencies which were funded by the general fund were to be included in the cost allocation within the attorney generals office and were not to be included in each specific budget account. Committee inquiries of the Budget Division indicated the $17,459 per year would be divided between attorney general reimbursement for services and other costs such as court fees, out of state executions of judgment, services, summon and publication fees. Mr. Stevens testified the letter from the Budget Division specifically states, "the allocation can be reduced by the direct reimbursement for services. i.e., $8,859 each year with the understanding that the Attorney General will, under the new cost allocation plan, not charge for these services. However, no funds have been included in the Attorney General's budget to address other W.I.C.H.E. legal expenses such as court fees and it is recommended they stay in the budget." Mr. Stevens explained if the committee chose to leave those court fees and publication fees within the W.I.C.H.E. budget and took out the Attorney General reimbursement for services, this budget could be reduced by $8,859 in each year of the biennium.
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MRS. EVANS MOVED TO CLOSE THE W.I.C.H.E. BUDGET ACCOUNT AS RECOMMENDED BY THE STAFF.
MR. MARVEL SECONDED THE MOTION.
THE MOTION CARRIED BY VOICE VOTE. CHAIRMAN ARBERRY, MR. SPITLER, MRS. WILLIAMS AND MS. GIUNCHIGLIANI VOTED NO.
BUDGET CLOSED.
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W.I.C.H.E. LOAN AND STIPEND -- PAGE 176
Mr. Stevens indicated the Budget Division made some modification to the account. The request was based on action taken by the W.I.C.H.E. commission to increase the graduate program in Physical Therapy from two to three academic years. The issue to be addressed was whether it would be funded, and the Budget Division indicated loan repayments have exceeded budgeted amounts and an additional $53,797 would be added to revenue collections in the current fiscal year which would be recommended to be brought forward into the first fiscal year. He explained this would allow $42,402 to be utilized for student loans, $14,134 for increased stipends to provide an additional year of support for the Physical Therapy graduate program with no impact on the general fund.
Mrs. Evans asked if the UNLV Physical Therapy program to be started would be undergraduate only. Mr. Stevens replied the individuals were already enrolled in the Physical Therapy program and no new Physical Therapy grants would be given for the W.I.C.H.E. because UNLV's program would begin in Fall 1993.
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MR. MARVEL MOVED TO CLOSE THE W.I.C.H.E. LOAN AND STIPEND BUDGET ACCOUNT AS RECOMMENDED BY THE STAFF.
MRS. EVANS SECONDED THE MOTION.
THE MOTION CARRIED BY VOICE VOTE. MR. HUMKE, MS. GIUNCHIGLIANI, MRS. WILLIAMS, MR. SPITLER AND MR. ARBERRY VOTED NO.
BUDGET CLOSED.
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INFORMATION DELIVERY AND CUSTOMER SERVICES -- PAGE 282
Mr. Stevens explained there would be some minor changes recommended by staff as a result of the closing of the Data Processing budget accounts which brought the Telecommunications and Data Processing positions back to the individual accounts. He stated two positions would need to be added to this account: Telecommunications Director and Telecommunications Coordinator. There would need to be a negative adjustment to the DP system line item.
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MR. MARVEL MOVED TO CLOSE THE INFORMATION DELIVERY AND CUSTOMER SERVICES BUDGET ACCOUNT AS RECOMMENDED BY THE STAFF.
MR. SPITLER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY BY VOICE VOTE.
BUDGET CLOSED.
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EQUAL RIGHTS COMMISSION -- PAGE 1103
Mr. Stevens stated there were no staff recommendations. He noted information received from the Data Processing Division concerning the issue of providing additional data processing resources for the Commission on Equal Rights. He stated the committee had voiced concern over the agency's work load and progress toward compliance. He requested committee provide staff with direction on how to proceed with this budget account.
Chairman Arberry asked if the funding for the additional data processing resource was approved, would it be paid out of general funds. Mr. Stevens replied yes it would be a general fund addition.
Mr. Humke commented he would like to have committee input on his earlier suggestion regarding legislation to sunset the agency. He described the agency as disobedient and nonresponsive to the Chief Executive Officer or to the Legislature's Committees. He reiterated sunset legislation would be appropriate either through the budget account or through proposed legislation.
Speaker Dini commented the 1991 Legislature had authorized three positions, but the agency was unable to hire due to budget reductions. Mr. Dini recommended including funds for the three positions originally authorized and the data processing resources with a letter of intent requiring the agency report to IFC every three months. He elaborated the IFC report should be provided by the agency, in person, with detailed descriptions of the agency's progress, number of cases completed and number of cases remaining on backlog. Further, Speaker Dini recommended legislation be drafted to sunset the agency in two years.
Mrs. Chowning strongly concurred with both Mr. Humke and Speaker Dini. She inquired which three positions would be added. She explained the make-up of the additional staff would be critical to the future operation of the agency in order to assure the agency's hands were not tied. She noted her anger over $400,000 already allocated to salaries in the account, yet the agency did not respond adequately to committee requests.
Mrs. Chowning inquired if Chairman Arberry had any results from the meeting he had with the administrator of this agency. Mr. Arberry stated he did not have any results and noted the agency head was just as vague in the Chairman's office as he had been before the committee.
Mrs. Chowning commented it was quite sad that there was an Equal Rights Commission which had not met in five years even though there were many people who wanted to help. She encouraged the inclusion of extremely strong language in the letter of intent. She emphasized the number of people who needed the decisions met and had been hurt by the agency's inaction, inadequacy or overwhelming work load. She reiterated the performance indicators had listed projections of six weeks to accomplish the tasks, the actual time spent was listed as twenty weeks, yet the agency reported again to the committee that it could accomplish the tasks in six weeks with no plan on how to fulfill the commitment. She stated the committee would need to decide which type of positions to fund.
Chairman Arberry maintained the committee could require the agency to come before the IFC on a quarterly basis to provide progress reports as indicated by Speaker Dini. Mr. Arberry mentioned the letter of intent could be provided with the computer support, but no positions. He emphasized if the Budget Division cut the positions, the Legislature reauthorized the positions and the Budget Division deleted them again, it would defeat the whole purpose the committee was attempting to achieve in the beginning.
Mr. Thorne stated the three positions discussed were not in the ERC budget account, but were in the Equal Employment Opportunity Commission budget account.
Ms. Tiffany voiced her concern and stated she had problems with this budget account. She explained providing someone with the tools, in this case computers, without protocols, procedures and operations with a vision, a business plan and a management style in place, the tools would continue to be ineffective and the mess would not be corrected or cleaned up. She recommended, before closing the budget, having the agency head provide the committee with the procedures and a business plan, especially before authorizing three more positions and a computer system. Chairman Arberry stated time restraints prohibited getting the information from the agency even though Ms. Tiffany's concerns were quite valid.
Ms. Tiffany stated she would not recommend providing the agency with the funds because it would be throwing money away. She did concur with Speaker Dini regarding the desire not to have the federal government provide these services, but to give good money to a bad situation without any clarity ahead of time would not be wise.
Mrs. Williams pointed out Mr. Dini has offered a suggestion which she would agree with. She noted there had been testimony that some of the tools to improve the agency operations were already available, but had not been utilized. She emphasized the federal government was ready to come in and train the staff on how to utilize the equipment already in place. Mrs. Williams stressed the three additional people were needed in order to give the agency a fair chance to do the job. She agreed quarterly reports to IFC and a bill to sunset the agency would provide the information on whether or not to retain this agency.
Mr. Humke agreed with Speaker Dini in regard to not deleting the agency and preventing the federal government from providing the services. He noted the inefficiency of travel to California to access these services would also be an encouragement to provide whatever was necessary to assure compliance and success at the state level. He shared with the committee a story about a constituent who had told him about how the ERC treated businesses. He explained the agency has brought employers in, off the record, and attempted to browbeat them into settlements. He commented this type of treatment was not right regardless of the issues involved.
Mr. Humke asserted this agency had an attitude problem, both north and south. He remarked that problem could be solved by giving the agency 100 computers or positions. The Legislature needed to hold the agency accountable.
Chairman Arberry asked the Budget Division what the Administration was doing to try to resolve the problems the Legislature was experiencing in dealing with the agency. Mr. Thorne responded the Budget Division had experienced as much frustration in dealing with this agency as the Legislative Branch. He remarked the committee had heard testimony regarding the lack of response by the agency to Administrative correspondence and the lack of compliance to basic rules of operations for state agencies. He stated Administrative actions had met with little or no effect.
Mr. Perkins remarked he, too, was in a tug-o-war over the agency. He explained equal rights in Nevada was extremely important. He emphasized the Legislature had the power and legislative authority to take whatever action on the budget, but did not have the power to choose a manager or "hold a hammer" over the manager's head to get anything accomplished. He stated he did not believe quarterly reports would accomplish anything with the existing management, especially in light of the response received in the past. He stressed he had no confidence in the current manager of the ERC either now or in the future.
Mr. Heller agreed with Speaker Dini's suggestions and agreed to second a motion if Mr. Dini formulated it.
Speaker Dini asked the fiscal staff if the three positions would be added to the EEOC and would they use federal funds. Mr. Stevens indicated he would investigate the use of federal funds, but he did not believe federal funds could be used because federal funds were earned by closing cases. He pointed out positions could be added, but if the agency was not closing any cases, it would not be able to earn money to fund the positions. He explained the positions being discussed would need to be funded from the general fund.
Mrs. Evans asked for clarification on what computer equipment was being proposed. Mr. Stevens replied he would provide the committee with detailed information tomorrow on the exact positions and computer equipment proposed for funding and a breakdown of costs.
Chairman Arberry asked if the committee members would agree, in conjunction with the Senate Finance Committee, to drafting a letter to be sent to the Governor regarding the agency director's attitude and lack of cooperation with the Legislative and Administrative branches with a copy to the agency. The committee agreed to the drafting and sending of a letter.
Mr. Spitler concurred with Mr. Dini's recommendation, but the agency had indicated it would be receiving a proposed $32,000 cut in FY94 and a proposed $72,000 cut in FY95. He remarked this might be another instance where the Legislature tried to fix something, but as soon as the Legislators went home, nothing happened because it all got cut out.
Chairman Arberry inquired if Mr. Thorne could state on the record this agency's funding would not be cut if the Legislature funded it. Mr. Thorne stated budget cuts came into play only when there was no money available. He explained if the state had revenue shortfalls, there would have to be budget cuts and noted there had been discussion of legislation regarding the prioritization of budget cuts in the event shortfalls occurred. Chairman Arberry noted this agency had already received substantial budget cuts and he asked if cuts did occur, would there be a way for the Budget Division to leave this agency alone. He stressed if the agency had cuts every time it was funded, it would not be possible to see if the agency could function. Mr. Thorne replied he would pass the committee's concerns on, but he noted he would not be able to make any guarantees on potential reductions.
Chairman Arberry held the Equal Rights Commission budget account.
AB113Requires state fire marshal to establish mobile training team to train volunteer firemen to respond to incidents involving hazardous materials.
Mr. Stevens explained a number of bills related to hazardous materials were placed into subcommittee and AB113 was the only one recommended for passage. He noted the Hazardous Materials Training Center budget was closed with funding to provide the funds for the requirements of AB113. The cost would be funded from the SERC account.
Mr. Perkins commented all the bills related to hazardous materials and he had thought there were reserve account funds to use for the bill, but the money did not exist because of a lack of fees. He stated the subcommittee felt AB113 was the most important bill.
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MR. MARVEL MOVED DO PASS.
MR. PERKINS SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY BY VOICE VOTE.
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Chairman Arberry adjourned the hearing at 10:25 a.m.
RESPECTFULLY SUBMITTED:
_________________________
Kerin E. Putnam
Committee Secretary
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Assembly Committee on Ways and Means
June 4, 1993
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