MINUTES OF THE
SENATE COMMITTEE ON FINANCE
Sixty-seventh Session
February 5, 1993
The Senate Committee on Finance was called to order by Chairman William J. Raggio, at 8:00 a.m., on Friday, February 5, 1993, in Room 223 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda. Exhibit B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Senator William J. Raggio, Chairman
Senator Raymond D. Rawson, Vice Chairman
Senator Lawrence E. Jacobsen
Senator William R. O'Donnell
Senator Bob Coffin
Senator Diana M. Glomb
COMMITTEE MEMBERS ABSENT:
Senator Matthew Q. Callister
GUEST LEGISLATORS PRESENT:
Senator Lori Lipman Brown
STAFF MEMBERS PRESENT:
Dan Miles, Fiscal Analyst
Bob Guernsey, Principal Deputy Fiscal Analyst
Judy Jacobs, Committee Secretary
OTHERS PRESENT:
John Crossley, Director, Legislative Counsel Bureau
Ben Graham, Legislative Representative, Nevada District Attorney's Association
Lorne Malkiewich, Legislative Counsel
Senator Raggio presented the committee with two bill draft requests (BDRs) for consideration.
BILL DRAFT REQUEST 43-1211: Revises fees relating to numbering and ownership of motorboats.
SENATOR GLOMB MOVED FOR COMMITTEE INTRODUCTION OF BDR 43-1211.
SENATOR JACOBSEN SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR CALLISTER WAS ABSENT FOR THE VOTE.)
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BILL DRAFT REQUEST S - 1030: Makes supplemental appropriations for district judges' salaries and judicial pensions.
SENATOR COFFIN MOVED FOR COMMITTEE INTRODUCTION OF
BDR S - 1030.
SENATOR RAWSON SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR CALLISTER WAS ABSENT FOR THE VOTE.)
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Senator Rawson made the statement that the introduction of both bills was being done solely as a courtesy. Senator Raggio pointed out one bill was supplemental, while the other would provide funding during the current biennium.
Senator Raggio opened the hearing on Senate Bill (S.B.) 32.
SENATE BILL 32: Makes appropriation to legislative fund for initial financing of 1993 Western Legislative Conference.
John Crossley, Director, Legislative Counsel Bureau, told the committee Nevada had been awarded the annual meeting of the Western Legislative Conference. He explained S.B. 32 would provide start-up money for the conference to be held in September. He anticipated 1,000 people will attend the conference. From the proceeds collected at the conference the costs appropriated by S.B. 32 will be refunded.
Mr. Crossley said the initial funding would provide contracts or down payments for people and facilities to be employed for the conference.
Senator Coffin interjected the total budget for the conference is about $300,000, most of which will come from the private sector. The private sector, which he described as "dedicated business people and other leaders in the state," has pledged to raise the entire $300,000. He agreed the appropriation would be repaid after initial implementation of the conference arrangements.
Senator Jacobsen reminisced about the 1988 conference in which $150,000 was approved by the legislature for start-up funds. He said not only did the conference return the money but also made a profit.
Senator Raggio asked if the Sahara Hotel was designated as the host hotel. Mr. Crossley answered in the affirmative. Senator Raggio declared his connection with the hotel as a member of its board of directors, although he added he had nothing to do with the selection. Mr. Crossley said the selection had been made one and a half years earlier.
Senator O'Donnell wondered if travel pay was provided for legislators going to the conference. Mr. Crossley responded the conference provided no financing for travel to the conference, but, of the 1,000 attendees, 300 or 400 legislators were expected to attend.
Senator Raggio turned to Senate Bill (S.B.) 94.
SENATE BILL 94: Requests that grand jury investigate allegations of misconduct related to general election of 1992 in Clark County.
He explained S.B. 94 was referred to the committee following the report of the Senate Temporary Committee on Credentials. He stated, "It is not the intention of the chair to open up this hearing on the underlying issues and the reasons for the referral of the bill except as necessary to deal with the funding and the necessity ... for the bill."
Ben Graham, Legislative Representative, Nevada District Attorney's Association, reported on activities taking place in Clark County in connection with the alleged misconduct. His opening remarks are attached as Exhibit C. He indicated he had no intention of arguing the merits or lack of merits of a grand jury investigation. He added election reforms were being suggested by Assemblywoman Myrna Williams, by the secretary of state, and by the Clark County registrar's office to address possible abuses of the 1992 election process.
Mr. Graham described the Las Vegas Metropolitan Police Force (METRO) task force. The task force is investigating the election, in conjunction with the Las Vegas district attorney's office criminal division, its fraud unit, and its civil division. One deputy district attorney has been assigned specifically to investigate the election department. He said the district attorney's office and METRO intended to continue the investigation, and upon completion to submit the report to the existing Clark County grand jury. He doubted that any additional funds would be needed.
Mr. Graham opined the matter might be resolved and presented to the grand jury prior to the end of the legislative session. He suggested there would be ample time in which to request funds from the legislature if a special prosecutor or investigator is indicated by the final report of the grand jury.
Mr. Graham pointed out the challengers and their analysts will be allowed to testify before the grand jury. He did not feel it appropriate to comment on evidence relating to misconduct of the registration process while the investigation is under way. He noted indictments or recommendations for reform will be issued by the grand jury if criminal conduct is brought out as a result of the investigation.
Senator Raggio asked if Mr. Graham was speaking on behalf of both the district attorney's office and METRO. Mr. Graham replied he represented only the district attorney's office, although he had discussed his testimony with officers of METRO, who he believed agreed with him in essence.
Senator Raggio declared his understanding that the temporary committee on credentials and the senate as a whole intended for an investigation to be conducted by either the existing grand jury, or a new grand jury yet to be empaneled. He acknowledged the senate has no authority to direct the courts to take any specific action, which is the reason S.B. 94 is phrased as a request.
Senator Raggio interpreted the intention of the senate that all material developed during the hearings of the temporary committee be presented to the grand jury. He reiterated the committee was not sitting to pass judgement on whether the evidence would support a criminal charge, only to assure the opportunity for presentation of that evidence. Mr. Graham repeated his assurance there was sufficient time for all evidence to be presented to the existing grand jury. Although the grand jury sits through the entire year, he said, the goal is to complete the study prior to the end of the 1993 legislative session.
Senator Raggio asked if Mr. Graham could assure the contestants who had presented evidence that there was no predisposition on the matter and that they would have sufficient time to make the evidence available to the grand jury. Mr. Graham answered, "Yes." He added the district attorney's office and the police department have seldom been accused of being "soft on criminal conduct." He
quipped, "Generally we're charged the other way." He assured Senator Raggio the analysis would be very open and unbiased.
Senator Raggio recalled some contestants had expressed concern during the hearings there might be a potential for conflict or bias, since the district attorney also serves as legal advisor to many county officers, including election officials. He iterated the committee needs more assurance such would not be the case. Mr. Graham reassured him there is no bias and there will be none in the future. He concluded it may be another matter whether or not the undergoing investigation would satisfy the contestants. He repeated his promise the presentation to the grand jury will be "thorough, unbiased, and...complete."
Senator Raggio asked if there was a need at this time for the appropriation under S.B. 94. Mr. Graham answered no, that the county was not requesting additional funds at this time. He expressed the opinion there would be enough time to determine if an appropriation from the legislature would be needed prior to the conclusion of the session. Senator Raggio suggested the committee send a letter of intent to Clark County officials indicating it would consider financial support should it be needed.
Senator Coffin asked Mr. Graham to describe the way grand juries function. He stated there is a perception it might be difficult to trust the grand jury process because of the secrecy involved. Mr. Graham responded, "A grand jury, by its very nature, is a secret hearing. Seldom does a potential target defendant ever know...that a grand jury investigation is going on." He admitted that the publicity surrounding the Clark County election would alert the public to any investigation. He pointed out it is a criminal offense to divulge any of the testimony or evidence presented to a grand jury.
Mr. Graham continued to say the transcript is made public by the grand jury at the conclusion of its deliberations if it issues indictments. Senator Coffin wanted to know if making the information public was permissive or only allowable if there were indictments. He voiced his concern that the public would not have an opportunity to know what goes on in a grand jury investigation. Mr. Graham replied the record is filed with the county clerk and normally is made available to defendants after the conclusion of the grand jury investigation.
Senator Coffin contended the forthcoming city election could be clouded if the investigation was not completed prior to May. Mr. Graham stated he would pass along Senator Coffin's concerns to those involved.
Senator Raggio interjected the laws of Nevada grant broad powers to grand juries not only to indict but also to make a full report upon all matters that come before them. He questioned whether the transcript would be made available to the public. Lorne Malkiewich, Legislative Counsel, noted changes had been made giving grand juries broader authority, but he could not recite the specifics.
Senator Coffin stated, "If I understand it correctly, as a layman, theoretically an indictment might not ensue, in which case,...the transcripts might not be public." Mr. Malkiewich responded:
That was the former law. The former law used to be, if there wasn't an indictment, nothing would happen. That was one of the recommendations of the study of grand juries. ...even if there may not have been criminal activity, there still may have been some problems the grand jury would want to report on. So we broadened the powers of the grand jury to allow them to issue a report even if they didn't indict anybody.
Senator Coffin and Mr. Malkiewich discussed whether public information given to a grand jury or an attorney could become private and privileged. Mr. Malkiewich assured him public documents could not be made private after they had once been public.
Senator Glomb wondered if the appropriation of funds to Las Vegas would set a precedent. She asked if county election departments and the secretary of state's office had funds to investigate problems. Senator Raggio opined the secretary of state's office has the inherent power to direct an inquiry primarily for the election process, but not for an extraordinary investigation. Funds for use in a county would have to come from the district attorney's office or the police department, he said.
Mr. Malkiewich stated although the secretary of state's office has responsibility over campaign practices and elections, the duties are not clearly specified in the statutes. He said nothing is written in the statutes to give the secretary of state the authority to investigate. He added the budget for the secretary of state's office has just $25,000 to monitor how well general election laws and organization function.
Mr. Malkiewich continued only Clark and Washoe counties have separate election departments, whereas in the other counties elections are handled by the county clerks. In any case, he said, problems within those departments would be examined by law enforcement officials and would fall under law enforcement budgets.
Senator Raggio reiterated the intent of the committee on credentials that the investigation would be done objectively and that there could be no question adequate funding was available to make the investigation. He conceded there could be a precedent set by S.B. 94. Mr. Graham stated he had a commitment from the police department they would assign people to the investigation even though their resources are somewhat limited.
Senator Lori Lipman Brown came forward to express the concern of her constituents on the issue. She emphasized that her testimony "does not reflect my own personal confidence in the Clark County grand jury system." She said she had received phone calls that show a lack of confidence in the Clark County grand jury. Many have requested that the state empanel a grand jury and a special prosecutor to be sure there is no bias.
Senator Raggio asked if Senator Brown's constituents feel there is a bias within the existing grand jury, or with those presenting evidence to the grand jury. Senator Brown replied they lack confidence in the existing grand jury. Senator Raggio pointed out a grand jury consists of ordinary citizens selected at random in the same manner as any jury. Senator Brown suggested more education may be needed to inform people on the makeup of a grand jury to instill confidence in the system.
Senator Brown reiterated her constituents have stated they will not be satisfied if the investigation of the 1992 election is done under the auspices of Clark County. Senator Raggio reminded her the court selects the grand jury. He noted the committee on credentials did not feel it appropriate for the state to empanel a grand jury. He suggested the alternative would be for the chief judge in Clark County to empanel a new grand jury. Senator Brown
said people calling her do not feel anyone in Clark County can be unbiased.
Senator O'Donnell asked Senator Brown if she had confidence in the grand jury and if she conveyed that to her constituents. She replied that she had confidence, but "I also told them that if they don't have confidence in it that I will seek someone from outside that system and present that testimony to you." She was unable to estimate how much money should be spent to educate the public on the grand jury system.
Senator Raggio asked Mr. Malkiewich what authority the legislature has to call a state grand jury and what the jurisdiction of a state grand jury could encompass. Mr. Malkiewich replied the credentials committee had asked similar questions. He stated the Nevada Revised Statutes (NRS) limits any inquiries by the state to investigation of state affairs and the conduct of state officers and employees. He pointed out the allegations under discussion did not involve state affairs or state employees. S.B. 94 was introduced as a result of those limitations, he said.
Mr. Malkiewich added the Nevada constitution forbids passage of any local or special laws for certain cases, which prohibits "summoning and empaneling grand and petit juries, and providing for their compensation." He explained the legislature cannot enact a special law to empanel a grand jury because grand juries fall under the jurisdiction of the court.
Senator Raggio asked if the legislature had the power to appoint a special prosecutor. Mr. Malkiewich replied the legislature does have special investigatory powers which can be used solely for information regarding legislation.
Senator Raggio asked if the chief judge in Clark County could appoint a special prosecutor, or if the attorney general had authority to step in. Mr. Malkiewich stated the attorney general has supervisory authority over district attorneys with the provision to take over prosecution. Mr. Malkiewich offered the opinion a court could appoint a special prosecutor.
Senator Brown encouraged the committee to spend the funds if a conflict is shown and alternate means must be found to pursue the problem. Senator Raggio responded the committee is prepared to appropriate funds if it becomes necessary. He repeated earlier statements that there are funds available from other sources to conduct the investigation in a full and objective manner. He reiterated the committee has been told there will be time for the committee to consider an alternative.
Senator Raggio pointed out there are two aspects to the problem. One is evidence that may be useful to support an indictment or a criminal charge, while the other is evidence that may warrant changes in the election laws. He suggested to Senator Brown that her constituents may want to look primarily at wrongdoing.
Senator Jacobsen told Senator Brown that he would be reluctant to use statewide taxpayer funds to solve the problems in Clark County. He admitted the legislature had used funds in past years to assist Clark County schools, as in many other counties, but he was resistant to setting another precedent.
Mr. Malkiewich called attention to an annotation in the NRS in which a precedent was set for appointment of a special prosecutor by a district attorney in Washoe County under the supervisory powers of the district court over grand jury proceedings (Lane v. Second Judicial Dist. Court, 104 Nev. 427).
Turning to NRS 172.225, Mr. Malkiewich read a provision which directs transcriptions to be filed with the county clerk and copies to be made for defendants. He noted further down in that section direction is given to make any physical evidence a matter of public record unless certain conditions are imposed by the court.
Mr. Malkiewich recalled earlier changes of the law which allow for publication of the fact that no indictment came out of a grand jury, and also which allow a grand jury report to be made public. He reiterated presentation of evidence to a grand jury does not make the evidence secret. However, he added, if there is no indictment the evidence would not be made public.
Senator Coffin stated his worst fears were confirmed, because with no indictment, the transcript would not be available to everyone. Mr. Malkiewich said although the transcript would not be public, the evidence that had been presented to the grand jury could be presented to any other person. In the absence of an indictment, release of the transcript is prohibited, he said.
Senator Raggio explained his understanding only the transcript relating to an indictment would be filed, not the entire transcript of grand jury proceedings. However, he continued, the grand jury is empowered to make a full report except they cannot accuse anyone of a crime without bringing formal charges. He added that the grand jury cannot be forced to make a report.
At the conclusion of testimony on S.B. 94, Senator Raggio closed the hearing. He advised the committee he would entertain action on S.B. 32.
SENATOR COFFIN MOVED TO DO PASS S.B.32.
SENATOR JACOBSEN SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS RAWSON AND CALLISTER WERE ABSENT FOR THE VOTE.)
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Senator Raggio announced he would prefer to hold S.B. 94 based on the testimony presented. He proposed a letter of intent be sent to the court, the district attorney and METRO in Clark County, and to other interested parties. The letter would report the intent of the senate, based upon the will of the Senate Committee on Finance and on the report of the Senate Temporary Committee on Credentials, that the impaneled grand jury continue the process in which the contestants and others who have presented information to the senate be given full opportunity to present the matters to the grand jury. Further, in the event it should become necessary to defray expenses of the investigation, the letter would reflect the intention of the legislature to consider funding. He asked the staff to work with him on a draft of the letter after which he would return it to the committee for refining and final approval. Members of the committee concurred.
Senator Raggio reminded the committee joint meetings with the Assembly Committee on Ways and Means will be held during the recess. He requested members of the subcommittees to be prepared to take the lead in the various areas to be discussed in the coming weeks. He acknowledged it will require an enormous amount of research on their parts.
Dan Miles, Fiscal Analyst, recited the agencies to be reviewed on Monday, including public works, bond interest and redemption
accounts, Department of Human Resources, the Aging Services Division, and capital improvement programs.
There was no further business, so Senator Raggio adjourned the meeting at 9:20 a.m.
RESPECTFULLY SUBMITTED:
Judy Jacobs
Committee Secretary
APPROVED BY:
Senator William J. Raggio, Chairman
DATE:
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Senate Committee on Finance
February 5, 1993
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