MINUTES OF THE
ASSEMBLY COMMITTEE ON WAYS AND MEANS
Sixty-seventh Session
April 9, 1993
The Assembly Committee on Ways and Means was called to order by Chairman Morse Arberry, Jr., at 8:00 a.m., on Friday, April 9, 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
AB 246 REVISES STANDARD FOR DETERMINING OPERATION OF VEHICLE OR VESSEL WHILE INTOXICATED.
Chairman Arberry advised all public testimony presented on AB 246 would be restricted to the fiscal impact of the bill.
Assemblyman William Petrak, District Number 18, advocated the approval of the necessary appropriation to fund AB 246. Mr. Petrak stated he had experienced a family tragedy related to drug and alcohol abuse. He asked the committee to approve AB 246 to help prevent other families from experiencing the same tragedy.
Robin Bates, Chief of Classification and Planning, Department of Prisons, explained the fiscal note for AB 246 allocated $350,000 in FY 94 and $600,000 in FY 95. An additional 24 inmates in FY 94 and 42 inmates in FY 95 are estimated to be committed to the Prison System as a result of AB 246. The calculation was limited to operating expenses and did not include the cost of capital improvements.
Glen Whorton, Department of Prisons, explained the methodology used to determine the fiscal impacts of AB 246. The Department of Prisons examined 339 DUI offenders incarcerated over a one year period. Since the enactment of DUI legislation, a 15.7 percent annual increase in the number of DUI related incarcerations had occurred. Mr. Whorton warned the percentage increase could be somewhat misleading because of wild fluctuations in the number of intakes and the size of the DUI offender population. Mr. Whorton explained an increase of 10 percent had been projected. The Department of Prisons elevated its intake estimate by 15 percent to accommodate the increase in the number of arrests projected by the Nevada Highway Patrol.
Mr. Whorton explained all inmates without statutory sentencing guidelines were eligible for parole after serving one-third of their sentence, less good time credits; because DUI offenders were given relatively short sentences, this had a dramatic impact on the time a DUI offender served. Inmates were released on parole or discharged from their sentence within seven months. Additionally, prisoners were released to residential confinement after serving approximately 4.5 months in a prison, conservation camp or restitution center. When determining the fiscal impact of AB 246 the percentage of released prisoners was subtracted from the base numbers. Ultimately the increase was estimated to be 24 in FY 94 and 42 in FY 95. To determine the fiscal impact of AB 246, the offender increase for each year of the biennium was multiplied by $14,672.
Mr. Spitler asked if estimates included time spent in "boot camps." Mr. Bates explained DUI offenders sentenced under NRS 484.3792 and NRS 484.3795 were specifically excluded from participating in the "boot camp" because a prison sentence was mandatory in both instances.
Mr. Spitler commented if seven prison honor camps were closed and the Facilities Capacity Act was implemented, capitol improvements would become part of the fiscal impact of AB 246. Mr. Bates commented the Facility Capacity Act would function as a release valve with a one-to-one relationship. When capacity was reached every new prisoner admitted would facilitate the release of another.
Mr. Spitler asked if the Facility Capacity Act was considered when determining the fiscal impact of AB 246. Mr. Bates replied it had not been a factor and if the Facility Capacity Act was enacted there would be no growth in the DUI population.
Mrs. Evans requested data pertaining to recidivism rates for DUI offenders. Mr. Bates replied data on recidivism rates for DUI offenders was unavailable.
Mrs. Evans asked what rehabilitation programs were available for DUI offenders. Mr. Bates explained the 1991 Legislature created the DUI Treatment Act which mandated all DUI offenders within 12 months of release attend a 30-day residential treatment program. The program was operated jointly by the Department of Prisons and the Bureau of Alcohol and Drug Abuse. After the completion of the 30-day program, inmates became eligible for residential confinement supervised by the Department of Parole and Probation. Mr. Bates commented 500 DUI offenders had completed the program since 1991.
Mrs. Evans asked how the program's effectiveness could be measured. Mr. Bates replied a report which studied the recidivism rates of Nevada DUI offenders who had participated in the program would be provided to the committee. However, the report measured only those offenders which remained in Nevada after release.
Mrs. Evans asked if DUI offenders were required to attend a program after they were released. Mr. Bates explained during residential confinement offenders were required to attend an out-patient substance abuse program until the end of their sentence.
Mr. Marvel asked if DUI treatment was available at prison honor camps. Mr. Bates stated residential treatment programs were available for DUI offenders at the Indian Springs Conservation Camp. However, voluntary substance abuse programs were available to all offenders.
Chairman Arberry asked if the fiscal note was accurate. Mr. Bates replied it was impossible to determine the exact fiscal impact of AB 246 but the estimate was as accurate as possible. Chairman Arberry noted the estimate did not include capital improvement expenses.
Mr. Perkins asked if the impact of the Facilities Capacity Act was used when determining population projections. Mr. Bates said the Facilities Capacity Act was not a variable.
Chairman Arberry requested that a representative of the Department of Motor Vehicles and Public Safety provide testimony on a memorandum from James P. Weller, Director, Department of Motor Vehicles and Public Safety, to members of the Assembly Committee on Ways and Means, (Exhibit C). The memorandum delineated a change in the fiscal impact of AB 246 from what had been projected by the Department of Prisons. Chairman Arberry noted the memorandum had not been delivered to the Department of Prisons until April 8, 1993 at 4:45 p.m.
Marlen Schultz, Highway Safety Coordinator, Office of Traffic Safety, explained the memorandum calculated the fiscal impact of AB 246. Estimates were based on the number of licenses which had been revoked for third-time DUI offenders from 1990-1992. Estimates indicated fewer DUI convictions than had been previously estimated by the Department of Prisons. The Department of Prisons estimated 292, 284 and 339 were all DUI offenders the prison system would normally receive, including felony DUI as well as third-time DUI offenders. Ms. Schultz commented a felony DUI could occur at any level of blood alcohol content (BAC), not strictly a .08, .10 or .15. Therefore a felony DUI would not be impacted by AB 246. The Office of Traffic Safety studied the potential impact of .08 BAC on the prison system. Specifically the third-time DUI offender, who under AB 246 could be captured at a lower BAC and sentence to prison.
Ms. Schultz commented the DUI population in Nevada was so small that any fluctuation could skew the figures from year to year. Therefore, the agency based its data on a three year average of third-time offenders which was approximately 158. She stated based on the history of .08 laws implemented in other states, DUI arrests would increase by approximately 4 percent. The 4 percent increase in arrests was multiplied by 158 to equal six additional offenders to the prison system each year.
Ms. Schultz commented according to the Department of Parole and Probation the cost to incarcerate an offender at a Conservation Camp, a minimum security facility, was $8,749. This was considerably less than the Department of Prison's medium security estimate of $14,000. However the Office of Traffic Safety used $14,000 as a base to calculate the cost of the average inmate. The average third-time DUI offender was sentenced to 25 months, if one-third of the sentence was served it would equal 8.33 months. At the annual incarceration cost of $14,000, each additional DUI offender would increase expenses by $9,718.34 or $58,310 for six additional DUI related prisoners. Ms. Schultz estimated the cost of incarceration at a minimum security facility would be approximately $36,000 less than the Department of Prisons estimate.
Ms. Schultz stated the average cost to monitor offenders once one-third of their sentence was served was $10.30 to $17.25 per day. The range depended on the amount the offender was able to contribute to the cost of the monitoring device.
Chairman Arberry asked if the Department of Prisons reviewed the memorandum prior to its distribution to the committee. Ms. Schultz replied the Department of Prisons received the material at 4:45 p.m. the night before the hearing. She explained the memorandum had been misplaced. Chairman Arberry indicated that response was unacceptable and asked for further explanation. Ms. Schultz explained in a conversation with Mr. Weller the day prior to the hearing she discovered he had not reviewed the material with the Department of Prisons. Mr. Weller attempted to call the Director of Prisons, Ron Angelone, but unable to reach him. Chairman Arberry asked when contact was made with the Department of Prisons. Ms. Schultz replied at approximately 4:30 p.m. the night before the hearing. A teleconference ensued between Mr. Bates, Mr. Whorton and Ms. Schultz. She commented the three had irreconcilable differences regarding the fiscal impact of AB 246. The two departments disagreed about the number of inmates AB 246 would generate.
Chairman Arberry commented all fiscal notes were to be submitted for review to the Department of Administration. He asked if the memorandum had been reviewed. Ms. Schultz replied it had not been reviewed by the Department of Administration. Chairman Arberry asked why it had not received administrative review. Ms. Schultz stated she could not answer the question. Chairman Arberry asked how the committee would know the memorandum was acceptable to the Department of Administration if it had never been reviewed. Ms. Schultz replied, "We don't know that sir, I am offering this as information for you to review."
Chairman Arberry asked if the Department of Prisons agreed with the memorandum. Mr. Bates responded they did not agree with the information contained in the memorandum because of errors contained within the base numbers used to calculate the percentage increase which would result from AB 246. Mr. Bates explained the Office of Traffic Safety used the number of revoked licenses for third-time DUI offenses to provide the base numbers for its study. However, in Mr. Bates opinion, the only valid way to determine the intake number was to calculate the number of DUI offenders admitted to the prisons. Mr. Bates asserted many offenders convicted on third-time DUI offenses were driving on revoked licenses which was not accounted for in the statistics used by the Office of Traffic safety. Additionally, NRS 484.3795, which convicted felony DUI offenders in death and bodily injury sentencing was currently set at .10 BAC and would be dropped to .08 BAC by AB 246. Therefore both categories of offenders, third-time offenders and felony DUI offenders, must be included in the base. The Department of Prisons disagreed with the memorandum and would not endorse its findings.
Mr. Marvel commented the impact of AB 246 on the rural communities had not been addressed.
Mr. Price commented only the increased number of DUI offenders which would result from lowering BAC to .08 should be used to determine the fiscal impacts of AB 246. Ms. Schultz stated the Office of Traffic Safety held the same opinion. Mr. Bates responded Mr. Price and Ms. Schultz were exactly correct. However, the Department of Prisons disagreed with the base numbers used by the Office of Traffic Safety because they were too low to accurately estimate the impact of AB 246. The memorandum did not reflect persons who go to prison for DUI offenses. The Office of Traffic Safety used license revocations as a statistical base, whereas the Department of Prisons used the actual number of persons serving sentences for DUI offenses. The Department of Prisons impact analysis reflected the additional DUI offenders which would result from AB 246.
Mr. Price concluded the only point of contention was the base numbers used to calculate the net impact on the prison system. Mr. Bates agreed and added if the base numbers coincided the only area of disagreement would be the percentage increase in arrests.
Chairman Arberry stated it was appalling that the Department of Motor Vehicles withheld information from the committee until such a late date and neglected to advise the Department of Administration the updated information. In the future the Department of Motor Vehicles should not testify before the committee unless they are better prepared.
Assemblyman Lynn Hettrick, Assembly District 39, participated in a test sponsored by MADD to intentionally achieve a BAC of .08 or above. Mr. Hettrick stated he had consumed seven martini's in one hour and 20 minutes and submitted to coordination, spacial relation, field sobriety and breathalizer testing. The results were normal. Mr. Hettrick commented the intention of his testimony was to illustrate the amount of alcohol which must be consumed to achieve a BAC of .08 or above.
Sandy Heverly, MADD Clark County, commented AB 246 would not solve the terrible problem of driving under the influence of drugs or alcohol. However, a number of measures when implemented and utilized collectively as part of an overall plan would make a significant and positive impact on the violent crime of DUI. The proposal to lower the BAC from .10 to .08 was based on fact, scientific research, concern for the potential innocent victims, and the economic welfare of the state. Ms. Heverly cited a report from U.S. Department of Transportation and the National Highway Traffic Safety Administration entitled The Economic Cost of Motor Vehicle Crashes, 1990 which reported the financial impact of DUI offenses to society. The cost components were productivity losses, property damage, medical cost, rehabilitation cost, travel delay, legal and court costs, emergency services, insurance administration cost, premature funeral cost, and cost to employers. The cost of a felony DUI was $702,000 and the cost of a critically injured survivor was $589,000. Ms. Heverly commented in the room there were victims representing a $15,379,000 cost to society as a result of DUI death and injury. California legislation which lowered the BAC from .10 to .08 resulted in a 7 percent reduction in DUI related deaths. Information did not support any impact on tourism as a result of AB 246. Further the state would become ineligible for additional federal highway funds if AB 246 was not enacted.
Chairman Arberry asked the typical BAC level for drivers involved in felony DUI accidents. Ms. Heverly replied typically BAC levels were well above .10, however, fatal accidents occurred at BAC levels well below .10.
Mrs. Evans noted an article which stated the majority of felony DUI accident were committed by repeat DUI offenders. Ms. Heverly agreed and stated 84 percent of DUI offenders incarcerated in the Nevada prisons were third-time offenders.
Mrs. Williams asked how drug-related impairment was measured and what percentage of the DUI population did it represent. Ms. Heverly explained "drug offenders" were a small portion of the DUI prison population. Mrs. Williams requested the Department of Prisons provide statistical information on the total number of drug-related DUI offenders in the Nevada prison system.
Paul Snodgrass, National Highway Traffic Safety Administration (NHTSA), presented information regarding the cost of motor vehicle collisions and a cost/benefit analysis of DUI legislation. Mr. Snodgrass reported the NHTSA had recently completed a congressionally mandated study, (summary Exhibit D), which recommended a national BAC level. Congress would allocate an additional $350,000 annually of federal highway funds to states which passed .08 BAC legislation.
Chairman Arberry asked the duration of the additional congressional allocation. Mr. Snodgrass explained the funds would be received for a five year period. Since 1992 the state had been receiving these additional funds because other requirements such as sobriety checkpoints and license suspensions had been implemented. After 1994, however, in order to continue to collect additional funds, .08 legislation must be enacted.
Chairman Arberry asked which department received the $350,000 allocation. Mr. Snodgrass replied funding went to the Office of Traffic Safety. Additionally, the state and community grant program, administered by the Office of Public Safety, allocated funds to schools, police, public health and occasionally to prisons for treatment programs.
Mr. Perkins noted statistics provided by NHTSA indicated the results of implementing .08 legislation in other states, (Exhibit E). Mr. Perkins commented the states listed, California, Utah, Oregon, and Maine, could not accurately represent Nevada's unique industry and growth. Mr. Snodgrass replied the death and arrest statistics from Maine were identical to Nevada. He noted California was statistically sound, because it was such a large sample, and had experienced a 14.5 percent decrease over three years in deaths as a result of .08 legislation. Mr. Snodgrass projected DUI arrests would increase by 4 percent, DUI fatalities would decrease by 15 percent, with no impact on police, courts or prisons. According to Mr. Snodgrass if AB 246 were enacted DUI arrests for third-time offenders would increase by 4 percent and prevent 5-7 percent of Nevada's current DUI fatalities.
Mr. Perkins commented California statistics were based on highway patrol arrests only and did not include the impact on local jurisdictions. Mr. Perkins stated during his career as a peace officer he had incarcerated between 250-300 DUI offenders. He was uncomfortable with the statistical information and analogies presented by NHTSA. Mr. Snodgrass explained half of the DUI arrests in California were performed by the highway patrol. Because the law had been enacted in 1991 it was difficult to obtain data from the 500 local police agencies.
Mr. Spitler asked if any states had enacted legislation to lower the BAC below .08. Mr. Snodgrass replied there were none but many countries had BAC laws below .08. The medical community suggested the BAC level when detectible impairment occurred at .05. However, state officials concluded enforcement of .05 BAC legislation would be overly burdensome to state enforcement agencies. Mr. Spitler asked which states had implemented .08 BAC legislation. Mr. Snodgrass replied 20 states were considering .08 BAC legislation and six states had implemented .08 BAC legislation. Mr. Spitler commented ultimately the goal should be to lower the BAC level to a point which would prevent persons from driving when impaired.
Mrs. Williams asked if the states listed in Exhibit E had DUI laws which were comparable to Nevada. Mr. Snodgrass stated all details were not the same however the laws were comparable. Mr. Snodgrass interjected drug impaired DUI offenses comprised approximately 10 percent of fatal crashes whereas alcohol comprised approximately 50 percent.
Timothy Randolph, Sparks City Attorney, testified Nevada law presumed intoxication at far lower BAC level than .08 and could be as low as .05 or .07 in felony DUI cases. He commented any increase in the prison population as a result of AB 246 was a myth. Most DUI cases tried were for elevated BAC levels. He contended AB 246 would catch first-time offenders. These offenders would have little impact on the local jurisdiction because most first-time DUI offenders were initially stopped because of another form of misdemeanor traffic violation and first-time offenders commonly elected community service sentences. Mr. Randolph asserted AB 246 would upgrade the severity of the offence from careless driving to DUI. He did not agree a 15 percent increase in arrests, cited by the Department of Prisons, would translate into a major impact on the prison system. Mr. Randolph asserted AB 246 would have a major impact on local municipalities because it would allow them to impose costly fines on DUI drivers.
William Gardner, Reno City Attorney, testified Reno was second only to Las Vegas in the number of DUI related cases. He agreed with Mr. Randolph's comments pertaining to local municipalities and did not have confidence in the fiscal analysis prepared by the Department of Prisons.
Chairman Arberry respectfully disagreed with Mr. Gardner's and Mr. Randolph's comments.
Mr. Perkins noted the time disparity between processing a misdemeanor traffic violation and a DUI offender. Mr. Perkins asked if this had been considered when discussing the impact to local municipalities. Mr. Randolph recognized an impact on local government administration. However, the personnel required to process a careless driving accident with a .08 BAC level driver was comparable to the personnel required for a .08 BAC level DUI offender. Mr. Perkins asserted his experience with DUI arrests dictated AB 246 would have an impact on local governments.
Paul McGrath, Carson City Sheriff, supported AB 246 for Carson City. Nevertheless, the Nevada Association of Sheriffs and Chiefs remained neutral on AB 246 because the impact to local jails could not accurately be determined. During 1992 the Carson City Sheriff's office processed approximately 400 DUI arrests which was a 20 percent increase from 1991. However, the increase in arrests resulted in a 67 percent reduction in fatal accidents and a 20 percent reduction in injury accidents. The average BAC in Carson City DUI arrests was .17. Sheriff McGrath asserted AB 246 could possibly reduce that number.
Captain Randy Oaks, Las Vegas Metropolitan Police Department, recognized there would be an impact on the available time of officers, however, to better serve the public this was necessary. Mr. McGrath supported the enactment of AB 246.
Colonel Bill Yukish, Nevada Highway Patrol, commented the average cost of a DUI fatality was $700,000 and an injury accident was $500,000. Mr. Yukish stated a number of accidents would be prevented by implementing AB 246 and it would provide a deterrent to drinking and driving.
Judy Jacoboni, President, MADD Lyon County, stated a dollar value could not be assigned to human life. Ms. Jacoboni asserted AB 246 would save lives, raise public awareness and deter people from drinking and driving.
Dorothy North, Chairman, Governor's Commission on Drugs, supported AB 246. Ms. North commented the Commission had submitted a bill draft request to lower the BAC to .08 in September, 1990. She asserted fiscal impacts of AB 246 would be offset by the lives which would be saved.
Jim Buschmann, MADD Washoe County, stated he and his wife were hit by a drunk driver in 1990 on their way to a bible study. The cost to the auto insurance company was $630,000 and $1 million to medical insurance. Mr. Buschmann asked for support of AB 246.
Susanne Hanson, Criminalist, Forensic Science Division, Washoe County Sheriff's Division, was responsible for training on and calibration of breath/alcohol instruments for Northern Nevada. Ms. Hanson advised there would be no costs associated with recalibrating the instruments. The devices currently in use were highly accurate in detecting low level BAC ranges.
John Morrison, Trauma Coordinator, Washoe Medical Center, noted prevention was the key factor in preventing the need for trauma care. Mr. Morrison supported AB 246.
Lenore Hutchins, MADD Clark County, stated she had an acquaintance who had been killed by a drunk driver whose BAC was under the .10 limit. Ms. Hutchins supported AB 246.
Judy Swett, MADD Elko County, commented she had lost her daughter in 1991 to a drunk driver. Ms. Swett asserted AB 246 would save somebody's daughter.
Jennifer Loretto, MADD Carson City, explained she was a victim of a drunk driver in 1993. Ms. Loretto supported AB 246.
Gary Rubenstien, Substance Abuse Counselor, University of Nevada, Reno, supported AB 246. Mr. Rubenstien asserted the typical college student spent more on alcohol than on text books. Students on the University campus collected keys and used breathalizers at parties. Mr. Rubenstien studied students who had been convicted on a DUI offence from 1989 - 1991, the average BAC level was 2.1. He commented none of them believed they were drunk.
NEW THREE-TIERED PERSONNEL SYSTEM PROPOSAL
Glenn Rock, Director, Department of Personnel, explained Benzler v. State of Nevada showed the state of Nevada had failed to comply with the Fair Labor Standards Act (FLSA) and awarded a class of state employees overtime compensation. The State of Nevada failed to comply with the FLSA because of three discrepancies: (1) recognition of compensation time; (2) suspension without pay; and (3) categorizing employees as classified or unclassified. The Department of Personnel proposed a new three-tiered personnel system to comply with the Fair Labor Standards Act (FLSA). The proposal for the three-tiered personnel system is on file in the Research Library. Exhibit F summarizes the proposal.
Mr. Rock commented through AB 576 of the 66th Session, the state attempted to comply with FLSA but inadvertently remained non-compliant. One reason was the Department of Labor classified employees as exempt or non-exempt and in some areas the state had mingled the two classes. He explained two tests determined FLSA compliance: (1) salary test; and (2) duties test. Statutes such as NRS 284.180, because it provided for overtime compensation, would need to be amended or eliminated in order to meet FLSA requirements. Mr. Rock asserted states were experiencing labor suits all over the nation.
The Department of Administration hired the Peat Marwick consulting firm to conduct a study which would properly classify salaried employees and comply with FLSA. The Marwick consultants recommended a three-tiered personnel system. Regulations for the new personnel system were to be determined by the Department of Personnel (Exhibit F).
Mr. Rock explained the state constitution provided for a merit system, however the number of merit employees was not specified. Therefore the three-tiered personnel system was based on the code of federal personnel regulations for state programs which were federally sponsored. The regulations included specific requirement for training, recruiting, retaining, fair treatment of applicants and employees, and all aspects of personnel administration. The new three-tiered personnel system included: (1) Exempt Appointed; (2) Exempt Merit; and (3) Non-exempt Merit. Exempt appointed employees would have no classification system, compensation would be set by the Legislature, there would not be provisions for leave of any type, and they would serve at the will of the Governor. Very few employees would qualify as exempt appointed. Only those employees who serve at the will of an elected official were recognized by the FLSA as excluded from 1.5 overtime compensation. Contract employees for a specific term, some also reporting to boards and commissions, were found eligible for 1.5 compensation in the Benzler case.
Mr. Rock explained the exempt merit classification for state employees. Many employees currently classified as "unclassified" employees and a number from the "classified" service would fall under this category. Areas which would need to be corrected for this group were discipline, time deductions and timekeeping. The classification system for exempt merit employees would provide broadband or generic categories for classification which would allow managers more flexibility in assigning duties. Compensation systems such as pay grades, because timekeeping documentation methods were hourly in nature, would need revision. Salary bands would be approved by the Legislature with absolutely no recognition of overtime. Attendance and leave accrual would remain the same. Additionally one week of management leave, to be used or paid, was recommended by Peat Marwick to compensate for lost recognition of overtime. Discipline would be based on cause. Further, there would be no suspensions of less than one week without pay. Appeals would advance only to the department head level, any further grievance proceedings would go to court. Retention determinations would be based on performance with less emphasis on seniority. Selection procedures would allow greater flexibility in selecting employees to include: a decentralized selection process; less formal testing procedures; and expanding the number of eligible candidates for appointment. These measures would help to meet Affirmative Action requirements because candidates could be selected from a much larger group. Currently candidates were selected from the top five test scores.
Mr. Rock stated the Department of Personnel had met with the Department of Labor to discuss employee classification. The exempt merit class would have 2,760 employees, 460 were currently in the unclassified service and 2,300 in the classified service.
Ms. Tiffany asked who would determine a position's classification, the manager or the Department of Personnel. Mr. Rock replied all jobs would be examined under the FLSA requirements for classification. Ms. Tiffany asked if some position classifications would be determined by managers. Mr. Rock deferred to James T. Spencer, Deputy Attorney General, because he was not aware of any positions which could be classified by managers. Mr. Spencer replied interpretation of the work test and the salary based test would determine position classification. He commented position classification decisions could theoretically be made by managers, however if the determination was ever questioned in court, the FLSA could overturn the decision. Ms. Tiffany asked if the agencies would seek assistance from the Department of Personnel. Mr. Rock stated the Department of Personnel had the greatest understanding of the tests and agencies would be well-advised to seek assistance from the Department. However some flexibility did exist, but the state was still open to challenge at any time.
Ms. Tiffany asked if management leave would be in addition to annual leave compensation. Mr. Rock affirmed management leave was additional compensation for the exempt merit employee. No employee in the group would receive compensatory time.
Ms. Tiffany asked if the new three-tiered classification system would prevent further litigation. Mr. Rock stated the proposal was an effort to prevent further litigation, however he could not guarantee the outcome. Mr. Rock commented the State of Nevada Employees Association (SNEA) had to agree with negotiations for the 2,760 exempt merit positions. However, SNEA represented only 35 percent of state workers and any agreement could be challenged by other state employee associations.
Ms. Tiffany asked if the new three-tiered personnel system would expedite the hiring process. Mr. Rock believed if the proposal was adopted, recruiting an exempt merit class employee could take two to three weeks.
Chairman Arberry asked Bob Gagnier, Executive Director, SNEA, to comment on the three-tiered personnel system. Mr. Gagnier explained SNEA agreed there was a need to implement something at the top level of government. However, the three-tiered personnel system would not stand up against a legal challenge. Historically, in FLSA cases where employers made unilateral decisions, the decisions did not stand up to legal challenge. However, in FLSA cases where bilateral decisions were made between labor representatives, such as SNEA, and management, the decisions were not challenged. Mr. Gagnier stated that up to this point, no discussions had taken place.
Ms. Giunchigliani was concerned the Department of Personnel had not defined placement criteria for each of the employee categories. She commented without consistent measures of selection the state would be legally challenged. Mitch Brust, Department of Personnel, stated initially the state must meet the salary test requirements and then the duties test. The group which was exempt entirely from FLSA, exempt appointed, those designated as policy-making appointees and personal staff, consisted of approximately 70 employees. The exempt merit employee category consisted of any employee who met the salary and duties test for an administrative, executive or professional employee. Mr. Brust commented the exempt merit category was the group of employees Mr. Gagnier wished to discuss. Mr. Brust explained when the Legislature gave its approval to the new three-tiered personnel system, the Department of Personnel intended to build consensus with state employee associations. Ms. Giunchigliani commented she would host a meeting between all parties concerned to define placement criteria for each employee category. Mr. Brust assured the committee FLSA definitions were used to determine how the employees would be categorized. Ms. Giunchigliani asserted she had not seen any criteria for the duties test. Mr. Brust explained the information had been delivered to the committee.
Chairman Arberry asked when regulations would be written for the new three-tiered personnel system. Mr. Rock replied a draft version of regulations could be completed by July 1, 1993. However, comprehensive regulations could not be completed until the next legislative session. Chairman Arberry asked what would be done to prevent legal challenge from employee associations during the interim period. Mr. Rock explained draft regulations would have to suffice until more detailed regulations could be written.
There being no further business, the meeting was adjourned at 10:00 a.m.
RESPECTFULLY SUBMITTED:
_________________________
Courtnay Berg
Committee Secretary
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Assembly Committee on Ways and Means
April 9, 1993
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