MINUTES OF THE
SENATE COMMITTEE ON FINANCE
Sixty-seventh Session
March 5, 1993
The Senate Committee on Finance was called to order by Chairman William J. Raggio, at 8:03 a.m., on Friday, March 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 Bob Coffin
Senator Diana M. Glomb
Senator William R. O'Donnell
Senator Matthew Q. Callister
COMMITTEE MEMBERS ABSENT:
Senator Raymond D. Rawson (Excused)
Senator Lawrence E. Jacobsen (Excused)
STAFF MEMBERS PRESENT:
Daniel G. Miles, Fiscal Analyst
Robert Guernsey, Principal Deputy Fiscal Analyst
Joan McConnell, Committee Secretary
OTHERS PRESENT:
Guy Shipler, Chairman, Commission on Judicial Discipline
Brooke A. Nielsen, Assistant Chief Deputy Attorney General
Tony Clark, Commission on Judicial Discipline
The Honorable Cliff Young, Commission on Judicial Discipline
Eve M. King, Administrator, Commission on Judicial Discipline
David R. Thomas, Risk Manager, Risk Management Division, Department of Administration
Michelle Bero, Program Assistant, Nevada Association of Counties (NACO)
Thomas (Spike) Wilson, Chairman, Commission on Ethics
Forrest (Woody) P. Thorne, Deputy Budget Administrator, Budget Division
Kateri Cavin, Deputy Attorney General
Senator Raggio presented four bill draft requests (BDRs) for introduction:
BILL DRAFT REQUEST S-1728: Makes appropriation to budget division to reimburse legal division of legislative counsel bureau for expenses involved in preparing bill drafts requested by state agencies.
SENATOR COFFIN MOVED TO INTRODUCE BDR S-1728.
SENATOR GLOMB SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS RAWSON, JACOBSEN AND CALLISTER WERE ABSENT FOR THE VOTE.)
* * * * *
BILL DRAFT REQUEST 34-1548: Makes various changes regarding program for education of handicapped persons.
SENATOR O'DONNELL MOVED TO INTRODUCE BDR 34-1548.
SENATOR COFFIN SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS RAWSON, JACOBSEN AND CALLISTER WERE ABSENT FOR THE VOTE.)
* * * * *
BILL DRAFT REQUEST S-1733: Makes supplemental appropriation to Nevada equal rights commission for certain expenses.
SENATOR GLOMB MOVED TO INTRODUCE BDR S-1733.
SENATOR O'DONNELL SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS RAWSON, JACOBSEN AND CALLISTER WERE ABSENT FOR THE VOTE.)
* * * * *
BILL DRAFT REQUEST 52-1720: Reverts balance in excess of $250,000 in Telemarketing budget to general fund.
Senator Raggio asked if there was a motion to introduce BDR 52-1720, and no action was taken.
Judicial Discipline - Page 109
Guy Shipler, Chairman, Commission on Judicial Discipline, stated the committee is bound by confidentiality under the constitution, which makes it difficult to explain the numbers, because the commission is not allowed to go into any detail on complaints received. One complaint received this year was on the election campaign between Judge Miriam Shearing and Judge J. Charles Thompson. There was a tremendous amount of complaints against both judges, and finally complaints by each of the judges against each other. They did this by announcing to the press they were going to file complaints with the commission. The commission learned about the complaints in the newspaper. The commission charged the judges to agree to issue public apologies, which they did. He added, "That is the best example at the moment that I can give of the kind of thing that we do, most of which we cannot do publicly."
Mr. Shipler submitted a two-page list (Exhibit C) estimating the hours given in legal and investigative support to the commission by the attorney general's office.
Brooke A. Nielsen, Assistant Chief Deputy Attorney General, commented, "In the 2 years that I've represented the commission, my impression is their work load is increasing, and my work load increases with theirs." Discussion ensued on Exhibit C in order to substantiate an increase of approximately $5,000 in Operating Expenses, for legal expenses to the attorney general's office.
Senator Raggio asked Mr. Shipler, "How often does the commission meet?"
Mr. Shipler replied, activity during this biennium has been more than average. He added:
We have four regular meetings a year. Those are also supplemented by other meetings if there is a case which we have to pursue, or if we have to have a probable-cause hearing. Probable-cause hearings are also confidential, but if, after that, we determine to pursue it to a public hearing, that becomes public.
Ms. Nielsen agreed there have been more complaints from citizens during the last biennium and were the type of complaints which required some intensive investigation.
Senator Raggio asked, "Who screens the initial complaints that come in?"
Mr. Shipler remarked when a complaint comes in, which is obviously not in the commission's jurisdiction, generally the administrator can handle it by giving them a form to fill out and the instructions about confidentiality. Eventually, most of the complaints go to commission members. If the complainant includes a transcript of the trial, indicating what might be considered misbehavior on the part of the judge, the commission does pursue the complaint.
A Report/Mission Statement of the Nevada Commission on Judicial Discipline (Exhibit D) was distributed to the committee, and discussion ensued.
Senator Coffin was in agreement the work load would increase due to the tenor of the last campaign for supreme court justice which is going to set a tone for the future. He also mentioned his concern about having an appointed board be able to remove an elected person. He added:
Instead of having just the authority to censure, remove, or retire a member of the judiciary, would it be useful to require another election, or to require that a sitting judge face an election, in order that the people who put the judge there could make a determination based on the data you've uncovered, the investigations that you've undergone?
Tony Clark, Commission on Judicial Discipline, felt Senator Coffin's idea was an excellent alternative, and added:
Another alternative that might be considered is the ability to suspend a jurist for a period of time without pay, like 30 days, or 60 days, or 90 days, for egregious conduct, whether it be on the bench or during a campaign.
Mr. Shipler said there is a constitutional amendment pending, which would expand some of the things that could be done. This amendment would give the commission the authority to suspend, but also to perhaps fine.
The Honorable Cliff Young, Commission on Judicial Discipline, commented:
I'm not sure the language we have in the proposed amendment would permit ordering another election, but it
certainly would allow monetary sanctions, and the
pocketbook is the most sensitive of the human nerves. I think if sanctions were imposed there would be a real disincentive to improper conduct.
Justice Young also felt there was merit in the possibility of another election.
Senator Glomb asked, "Has your commission ever considered any type of suggested legislation for campaign reform in judges' races, certain rules of conduct that must be followed?"
Mr. Shipler replied, "Actually we haven't taken any part in things of that nature...There's no restriction, certainly, against the commission doing that."
Senator Glomb thought it would be helpful to have some guidelines.
Mr. Clark stated there are some guidelines set out in the rules of judicial conduct, which have been adopted by the Nevada Supreme Court and apply to all judges from the supreme court to the district court, down to the lower courts.
Senator Raggio said it raises the question whether the judges, under the first amendment, have a higher standard during the course of an election than other candidates for office. For example, is it inappropriate for a judicial candidate to accuse his or her opponent to what amounts to theft, or bribery, or something of the sort? And is it all right for legislative candidates to do the same with respect to their opponent?
Mr. Clark responded, "I think the judiciary requires, because of the position it holds in society, a higher level of conduct during its campaigns."
Senator Raggio suggested the same higher level of conduct should apply to all elections, whether it be judicial, legislative or executive.
Senator Callister could see no reason the level of conduct should be any different for the judiciary than it is for the legislature.
Mr. Clark remarked the public holds the judiciary in a special place, and they are supposed to be arbiters of conduct of the general public. When the judiciary dons the robe, they should be held to a higher standard of conduct.
Mr. Shipler commented he, too, felt the judiciary should have a higher level of conduct, which was indicative from the reaction of the public to the race between Judge Thompson and Judge Shearing.
Senator Raggio said:
The difference is when candidates for judicial office run, they are supposed to be free of biases, and opinions. The only thing they can promise, I think rightfully, is to be fair and objective. On the other hand, when we run for the legislature, we run full of bias. We tell people where we stand on issues, and we come here full of opinions, and are anything but objective. So I think there is a big difference in the type of campaign that is envisioned between those types of offices.
Senator O'Donnell agreed with Senator Raggio but did take issue with the fact that judges should have a higher standard of ethical
behavior than any other elected official. "We all, as servants of the people, must have an ethical level that is above reproach."
Senator Coffin agreed the judges should have a higher level of standards.
Justice Young commended Mr. Shipler on the "great job" he has done, to which Senator Raggio agreed.
Senator Raggio asked, "Is the opinion of the commission, that the present composition is appropriate, or should there be any changes made in that composition?"
Mr. Shipler replied:
I personally think it's very well-balanced in this regard. I do question whether or not a member of the supreme court should be a member, only because of the fact that every decision we make, and every disciplinary decision we make is appealable to the supreme court.
Senator Raggio said he would welcome any formal suggestions from the commission on the issue.
Ms. Nielsen mentioned another item of concern. The commission needs a facsimile (FAX) machine.
Senator O'Donnell asked if the commission has a computer.
Eve M. King, Administrator, Commission on Judicial Discipline, stated the extent of their office machines is a photocopier, and an IBM typewriter. They have been relying on the attorney general's office for a FAX machine.
Senator O'Donnell suggested the commission should get a computer and a FAX machine compatible with the computer, where copies could be run off on plain paper through the computer. This acquisition would be cost-effective.
Senator Raggio requested a memorandum on what the commission's specific needs are, and what equipment would be suitable to meet those needs.
Senator Callister thought, because of the confidentiality involved, the commission should have their own FAX machine.
Supplemental Fund - Indigent - Page 201
Indigent Accident Account - Page 203
David R. Thomas, Risk Manager, Risk Management Division, Department of Administration, suggested covering the above two accounts together, as they go in tandem. He stated, "These budgets are specifically for the funding of the indigent medical services programs of the counties," and deferred to Michelle Bero.
Michelle Bero, Program Assistant, Nevada Association of Counties (NACO), representing the Nevada Association of Counties, commented both accounts were legislatively inactive at the request of the counties to address some problems the counties were having in paying for indigent health costs. Both accounts are funded by ad
valorem tax, the supplemental fund by a 1 cent property tax and the indigent accident account by a 1.5 cent property tax. The funds are administered by a board of directors comprised of five
county commissioners appointed by the Governor. The Nevada Association of Counties is the entity which reviews all of the cases and then presents the cases to the board for approval.
Ms. Bero, regarding past activity, said:
In Fiscal Year 1992, for the supplemental fund, we had 150 cases submitted for approval through the supplemental fund. The supplemental fund is a catastrophic fund that, when the counties have paid out 90 percent of their health-care budget, they are able to apply to this fund for reimbursement on cases which exceed $25,000. On these cases the counties are liable for the first $25,000. The fund then picks up, to the extent monies are available, the remainder of the balance of the claims. With the funds that were on deposit, we were able to pay a little over 40 cents on the dollar for these claims.
Senator Raggio asked, "Do they measure that, Michelle, on the billed charges, not on the preferred rate given to providers?"
Ms. Bero replied:
On the supplemental fund we are looking at billed charges. Many of these cases that come in are between the $25,000 to $40,000 range, with the county paying full dollar on the first $25,000, we're paying 40 cents on the dollar for the amount above $25,000.
Senator Raggio suggested revisiting whether or not the county and this fund should be paying against billed charges, or whether it ought to be given the best preferential rate under contract by the hospital. "Have you ever looked into that?"
Ms. Bero responded:
We discussed that with the counties and the hospitals, and the feeling I've gotten...this is a very small fund, we're talking really not a large percentage of indigent health-care costs for the state. While we may be paying at a higher rate for these cases, on other cases we're paying at a lower rate. The funds are essentially going to the same hospital.
The indigent accident fund, for Fiscal Year 1992, we had 143 claims. We were able to pay 100 percent of allowable charges. How we determine allowable charges is we review every hospital bill. We deduct any non-Medicaid allowable charges, items such as...various toiletry items. We deduct those from the amount of the bill. These are claims over $3,000.
With the urban hospitals, located in Clark and Washoe counties, we then take 85 percent of those claims and we pay on that based on how much money we have in the fund.
Senator Glomb asked, "Do you have any idea how much more the counties might request if there was more money in the fund, that we aren't able to fund?"
Ms. Bero replied:
Currently with the indigent accident fund, the ad valorem tax does meet the claims...We asked for an increase back
in 1989 from three-quarters of a penny up to one-and-a-half cents. If we have carryover funds it's in the amount of about $20,000 or $30,000, and we generally pick that up on the next case. We do not have an excess in the fund.
In the supplemental fund, last year we paid a little over 40 cents on the dollar. I've paid up as high as 63 cents on the dollar. With the supplemental fund, we have one meeting a year, and that's done usually at the end of May. Counties that have reached 90 percent of their indigent fund budget are allowed to apply for this. I take all the claims. They're all on an equal basis, and then I pro-rate out the funds.
The supplemental fund was established in 1985, the indigent accident fund, in 1983.
Senator Glomb requested a yearly trend as to how much could be paid to counties out of the supplemental fund. Ms. Bero said she would comply.
Mr. Daniel G. Miles, Fiscal Analyst, offered the following information regarding the supplemental fund:
Fiscal Year 1990, Property Tax and Interest $1,369,991, Available for Claims $1,217,441, Certifiable Claims $1,931,023, Pro-rated Payment 63.1 percent.
Fiscal Year 1991, Property Tax and Interest $2,063,128 estimated, Available for Claims $2,038,500 estimated, Certifiable Claims $2,320,378 estimated, Pro-rated Payment 87.9 percent.
Ethics Commission - Page 10
Thomas (Spike) Wilson, Chairman, Commission on Ethics, distributed two charts (Exhibit E and Exhibit F) and discussion ensued, and stated:
The commission's work since 1986 is reflected in the bar chart, which simply indicates the increase in work load from 1986 to the beginning of this year. We had a substantial growth period for the year 1992. I would indicate the additional work pressure is not all the result of new legislation passed in the 1991 session. I think a lot of it is simply the commissioners had a higher profile, because we've had more work to do, and there has been more public interest, and as a result it has probably stimulated additional requests for opinions.
The second chart simply shows the relationship between third party and first party opinion requests.
Mr. Wilson also distributed a book (Exhibit G. Original is on file in the Research Library.) indicating the nature of the Commission on Ethic's work. Discussion ensued.
Mr. Wilson, referring to the opinions in Exhibit G, said:
I give you these opinions, not to discuss their merits, but so you understand that some of these are rather sensitive, and some of them are important. There are always matters of reputation that hang in the balance of
how these questions are decided, and how they're handled. Commissioners on this commission come and go, and I'm one of them. This is not a career for me...One of the things we're concerned with is that this commission not go down the road, making decisions based upon matters of attitude, as to what ethical standards ought to be.
The ethical standards are carefully proscribed by statutes, and they have to be applied loyally and carefully.
Senator Raggio asked:
Does the commission feel comfortable within its authority, when you render an opinion such as these, to comment whether you think the particular statute or law that may be violated ought to be amended or changed? For example, suppose you had to find that somebody was in technical violation of a law. You would so indicate, of course, but would you also feel comfortable in suggesting in the course of that opinion, maybe that law ought to be revisited?
Mr. Wilson replied the problem has been in applying a law which is particularly technical, because it is not technical. The difficulty is finding facts. He added he would feel comfortable recommending there be a change in the statute if it was unduly oppressive.
Senator Raggio asked, "What recommendations is the commission suggesting, if any, for changes in the law?"
Mr. Wilson stated he made a report to the assembly recommending the law should be amended to make opinions with respect to past violations public, and "not give us the discretion to determine when we will or when we won't." Mr. Wilson offered to send copies of the report to the assembly to members of the committee.
Senator Glomb, regarding the budget, stated, "You asked for quite a bit more than the Governor recommended. Could you tell us a little bit about what you need and why?"
Forrest (Woody) P. Thorne, Deputy Budget Administrator, Budget Division, responded:
The only thing that dropped out of that between the Agency Request and the Governor's Recommend is the charges for the attorney general's office support. With the new cost allocation plan for the attorney general's office, part of the attorney general's request included a full-time DAG (deputy attorney general), and a full-time legal researcher in support of the ethics commission. Those costs are built into the attorney general's budget.
Kateri Cavin, Deputy Attorney General, commented, "At present the ethics commission does not pay the attorney general's office for any legal services."
There being no further business before the committee, Senator Raggio adjourned the meeting at 9:26 a.m.
RESPECTFULLY SUBMITTED:
Joan McConnell,
Committee Secretary
APPROVED BY:
Senator William J. Raggio, Chairman
DATE:
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Senate Committee on Finance
March 5, 1993
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