MINUTES OF THE
SENATE COMMITTEE ON GOVERNMENT AFFAIRS
Sixty-seventh Session
February 3, 1993
The Senate Committee on Government Affairs was called to order by Chairman Ann O'Connell, at 2:00 p.m., on Wednesday, February 3, 1993, in Room 227 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda. Exhibit B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Senator Ann O'Connell, Chairman
Senator Sue Lowden, Vice Chairman
Senator William J. Raggio
Senator Dean A. Rhoads
Senator Thomas J. Hickey
Senator Leonard V. Nevin
Senator Matthew Q. Callister
STAFF MEMBERS PRESENT:
Caren Jenkins, Senior Research Analyst
Tanya Morrison, Committee Secretary
OTHERS PRESENT:
Robert Seale, Nevada State Treasurer
Gary Crews, Legislative Counsel Bureau
Darrel Daines, State Controller's Office
Marvin Leavitt, City of Las Vegas
George Cotton, Clark County Affirmative Action Officer, Clark County Managers Office
Roger Means, Washoe County School District
Senator O'Connell opened the meeting on Senate Bill (S.B.) 144.
S.B. 144: Authorizes creation of police department for Airport Authority of Washoe County and designates its officers as peace officers.
Senator Nevin, author of this bill, withdrew the bill from committee.
Senator O'Connell closed the meeting on S.B. 144 and opened the meeting on S.B. 53.
S.B. 53: Requires certain state officers, departments and commissions to deposit money directly in financial institution designated by state treasurer.
Robert Seale, Nevada State Treasurer, spoke in favor of S.B. 53. Mr. Seale stated his big concern was the security of any cash which might be coming into the state treasury. He told the committee Gary Crews, State Controller's Office, met with Bob Adkins, Deputy Treasurer of Operations and he feels they have worked out a most acceptable threshold. Mr. Seale explained:
At least by every Thursday, whatever monies are on hand, essentially, are deposited into the bank accounts. This will assure the treasury that we have all monies investable by Friday morning and then we can invest them over the long weekend so we can get the maximum amount of interest. His [Bob Adkins] calculations on what it would cost, and I don't disagree with those numbers, for each deposit, if we are doing it on a frequent basis and as he has pointed out there are many, many agencies that are making these deposits. While there is some risk in not having that money in every day, the cost probably outweighs greatly what the risk is. I think we have adequate internal controls to protect us from potential deficit, so I'm comfortable with leaving the $10,000 threshold if it is being deposited at least by Thursday.
Senator O'Connell asked why a banking account would cost the state anything as is seen in the information prepared by Gary Crews, Auditor, Legislative Counsel Bureau, see Exhibit C. Mr. Seale told the committee any banking account costs. He further explained any
money sitting in a banking account is used by the bank, which is how each account does have a fee whether or not the individual is aware of it. Mr. Seale told the committee this is called account analysis.
Senator O'Connell asked Mr. Seale if what he is saying in essence is if the language in the bill is changed to require the deposit every Thursday, this will address the state's concerns with having the money on hand and not having it available over the weekend.
Gary Crews, Auditor, Legislative Counsel Bureau, answered the question telling the committee moving the deposit to Thursday is a compromise situation in that it is not cost-effective to have absolute recommendation that daily deposits be made and having a minimal amount on hand. His office felt the best solution was to move the deposit to Thursday which would secure the account over the weekend and give the treasury the deposit on Friday to make their estimates on Friday and that way the state is earning interest sooner in that respect.
Mr. Crews told Senator O'Connell he looked into her question of the exception to this new proposed legislation. He told her the Department of Wildlife would have the ability to make deposits 10 days after they reach the maximum sum (the maximum sum being $10,000) see Exhibit C. Mr. Crews stated his office has some concerns with that exemption and he felt there were problems with that throughout the last 10 years regarding the deposit procedure of the Department of Wildlife as opposed to other state agencies. He explained he felt the Department of Wildlife should be able to make their deposits on a timely basis as do the rest of the state agencies, when their total reaches $10,000. Mr. Crews stated this happens quite frequently when the state is having their big-game tag draw and he feels the sooner it goes into the bank and out of the hands of the individuals the better off the state will be, not only from a security standpoint, but from an investment standpoint. Mr. Crews called attention to the fact this big-game tag draw is being privatized now and the same concern should apply to whoever the contractor is. He restated the money must go into the state treasury as soon as possible to start earning interest on it and provide controlled security of the money.
Senator Raggio suggested the committee allow the Department of Wildlife to speak with them before action is taken on S.B. 53. Senator Raggio asked Mr. Crews to clarify if he was asking for a change of days within the current law from Monday to Thursday. Mr. Crews explained they did not specifically recommend that language, but he feels that is what they are alluding to in the proposed legislation.
Senator Raggio asked Mr. Crews to clarify the request in the bill as to deposit days. Mr Crews explained as money accumulates it would be deposited on Thursday because the treasurer makes investments on Friday and this would allow less cash at the agencies over the weekend as well.
Senator O'Connell asked Caren Jenkins, Senior Research Analyst, Legislative Counsel Bureau, to send a copy of S.B. 53 to the Department of Wildlife and ask them for their comments.
Senator O'Connell closed the meeting on S.B. 53 and opened the meeting on S.B. 52.
S.B. 52: Allows constitutional officers to submit budgets directly to legislature.
Senator O'Connell said:
We had a concern since the attorney general's budget...we're not quite sure how it would be affected. On the day that you did give your testimony I contacted her and asked her if she would look into that and let us know because there are so many of the agencies that have a half-time person and a full-time person and her budget does have to go through the other agencies because of the number of people that are charged back for her services. We weren't quite sure if that would affect the budget process or not. Darrel, would you care to comment on that?
Darrel Daines, Nevada State Controller, spoke in favor of S.B. 52. Mr. Daines answered:
I don't immediately recognize what problems that would present. I know that the attorney general is charging back to many different agencies for the services of the attorney general. She does not do that in my office because we don't get that much service from her. But, and I am not sure how it would affect, how this bill would necessarily affect that situation. If the various agencies have to budget to transfer monies to the attorney general, I don't see it resolving really in a problem. But, maybe someone knows something I don't about it.
Robert Seale, State Treasurer, spoke in favor of S.B. 52. He stated in presenting this bill he felt it should be noted the only thing that changes is executive review on the budgets. He explained the budgets would still be forwarded to the Governor for inclusion in his budget because he has a responsibility of submitting a balanced budget so he has to know the numbers we are submitting. Mr. Seale emphasized all they are suggesting is that the legislature passes judgement directly itself rather than having executive oversight on that bill.
Senator Hickey commented:
That is true just exactly as you presented it. I suppose maybe I could go back to the history of development of these budgets. That does not stop your presentation of your needs to the legislature who is the final judge and the distribution of those funds. That does not preclude you from...It does? Does that stop you?
Mr. Daines answered, "No, no. Absolutely not. The legislature..."
Senator Hickey asked:
You have a perfect right to come to this legislature, at least as far as I understand, if there has been inequities, or improperly judged budgets by the administration, you certainly have a recourse to let us know and allow us to make those adjustments.
Mr. Daines explained:
I think our problem in the past has been that oftentimes our budgets are submitted to the legislature with recommendations that certain items be deleted and the legislature has already essentially made up their mind and we haven't even had the chance to address the legislature on our needs. And that is what we are asking for. We are asking that the original or the first review of our budget be conducted by the legislature and at least we have the opportunity to defend what we are asking for and then after that then everything is fair game. The legislature is going to do what they are going to do with our budgets. I am sorry Senator Callister is not here because I did do some research on the question that he asked me and I think it is important that you have this information. And if I may go on I will repeat for any...
Senator Hickey inquired:
Mr. Secretary, I know perhaps that is a perception, but, I think you would find many of those legislators sitting on the other side do not necessarily have preconceived ideas on how a budget, how yours or any other agency budget should be determined. I know there is a restriction on dollars and cents. I do not see you escaping that problem whether it is outside the system or in the system. It seems to me in all due respect as always shown with proper arguments on your problems in your particular agency. I do not think I challenge that. In fact, one of our fights in here in dealing with budgets was the fact of the cooperation of agencies because of under administrative control. You are not under that control. And I would challenge you to bring up whatever your arguments are. I think they will be treated very fairly in this legislature. I really believe that.
Mr. Daines stated:
Certainly, I am not complaining about my treatment before the legislature itself. I do think, however, that there have been, in the last 10 years a number of budgets submitted that have been an awful lot harder to justify because there was already a preconceived opinion as to the necessity of a given subject. It is about three times as much effort to overcome a presumption than it is to present the information fresh, new and clean. That is what we are asking for. We are really simply asking for the opportunity to present it to the legislature first and we will live with what the legislature determines to give us, is essentially what it amounts to.
Senator Rhoads commented:
I think it is a step in the right direction and ultimately I think that all agencies should go before us first like they do in most other states. I like the idea.
Mr. Daines said:
I had a conversation just today with the controller general for the state of South Carolina. The way they function back there, the governor and the controller general, the speaker, not the speaker, the chairman of ways and means and the chairman of the senate finance and one other party and I forgot which one it was, sit as a budget committee and they are the ones who receive the budget and make the determinations as to what they are going to submit to the legislature itself. So the legislature is involved in actually forming the budget rather than the governor forming the budget. Other states, I have checked with the National Association of Budget Officers and asked them what is really being done statewide. Their answers came back tongue-in-cheek, because they really didn't have exact answers on this but they said many states, the budgets are submitted through the governor but, they have never bothered the constitutional officers budgets. They are put through just the way they are. California, that was California's answer until, he said, this year. And this year we're in such terrible financial shape back here that we have made recommendations on the constitutional officers budget and so, I guess it is whatever answer you want. You can find a state that probably does the same thing that Nevada is doing, but most of the states, if I can rely on what people are telling me, they may very well be submitted to the governor for
inclusion in the budget document. They have not changed the requests and all and they have left that up to the legislature to do.
Senator Callister stated:
Without reading your information, if I might, there is just one question, I have tried to think this through because I think you've raised some very important issues from a policy perspective and I actually went back and read the...constitution but, I guess I would ask you this question, your argument is, at least in regards to the proposal to submit a budget directly and then there was another companion measure, I guess, to allow you to submit bill drafts directly. In both instances I think there is some merit to it and I would be deeply concerned about the budget office, essentially second-guessing you and I understand that issue, but separate and apart from that I would ask you this question, I guess, gentlemen and I mean this because I trust both of you as scholars not just as politicians. You didn't run to serve in the legislature. You ran to serve in the executive branch. Now you are independently elected but, you also work for, again quoting the constitution, 'a chief' executive. Is that not correct?
Mr. Daines replied:
I read that constitution as well. I went back and read it again and again. I don't interpret it quite the way you do because there are certain areas where the Governor is the chief executive, but there is no place that I could find in the constitution where we report to the Governor or where we are under his direction and control.
Senator Callister asked:
And I would suspect from your point of view that is a good thing, huh? Most constitutions, as I understand them, are drafted pretty broadly and that is an intentional fact. It is an attempt to try to craft as generically as generally as possible rights and responsibilities. But, I guess it seems to me that there is an important distinction here. In regards to the right to submit bill drafts directly, that is a right that I have, a very limited right I might note under some of the new constraints. But, it is not a right that others who are elected to office share. An individual county commissioner would have to go to his board or county commissioners to get their approval and then submit through their auspices. But, he can't directly do that although he is also elected by his constituents, nor can a city councilman, nor can a mayor, nor can anyone outside of a legislator. So I would suggest that there is an argument that could be made that to allow that authority is not only an infringement on the executive branch but perhaps on the legislative one. It is a rather unique argument. In regard to the budgets, I don't know that there is a more fundamental vehicle for control of your department heads for any institution than control over the purse, over their budget authority. And so I would suggest, just based on what I see in the constitution, which I agree is very general and very vague, but I think purposefully so, I am troubled by the notion that after so many years we would essentially be changing that policy to either afford you the rights traditionally available only to this very eccentric group known as the legislators and or to usurp perhaps the most fundamental control that a chief or supreme executive, which I think is how we characterize it in the constitution, has over his agency chiefs. Irrespective of whether they are elected individually, constitutionally, appointed, etc. I would invite your comments but, I am just trying to think out loud here.
Mr. Daines commented:
You know, I was looking to see if I have a date and I don't when this authority was given to the courts. The courts were given the authority to submit their budgets directly to the legislature.
Senator Callister replied, "The courts are a third branch of government though, is that correct?"
Mr. Daines answered, "That is correct."
Senator Callister pointed out, "I don't believe that quite yet you are a third branch of government."
Mr. Daines explained:
I think the executive is the third branch of government. The executive, and the question, what you are saying is that, well you and I disagree on this one thing. I think each one of us is the executive branch of government and we are not responsible to the other members of the executive branch of government. We don't answer, I don't answer to Bob Seale, I'm...
Senator Callister clarified:
No, I'm not suggesting that you do. I am suggesting that unfortunately with the constitution the way I read it, to be chief executive, if that is to be construed to have any meaning, it has got to mean that you work for him or did I miss something?
Mr. Seale answered:
Excuse me, if that were true, I would then assume that the responsibilities that we have individually and the
knowledge that we have about our particular branch of government would be used by the chief executive.
Senator Callister stated:
I would hope that they would.
Mr. Seale agreed, "I would hope so too but, it does not."
Senator Callister explained, "Then that is the problem that we should be addressing."
Mr. Seale stated, "Well, I don't know how you address that."
Senator Callister elucidated, "Well, I guess all I am saying is I am reluctant to change the constitution or answer any other instance."
Mr. Seale said, "I don't think we are."
Senator Callister insisted, "I think you are in a very quiet, subtle way, I think that is exactly what you are trying to do."
Mr. Seale explained:
Most of the issues that I wished to bring before the legislature this year were not passed on. They had perhaps 20 different issues of some importance, at least to the treasurer and I would hope to the citizens of the State of Nevada. They are esoteric. They are fairly complex and they are issues that I would submit that an appointed official not in my capacity may not understand. Clearly it was not because they were not forwarded on. On the other hand, I suspect that all of those issues, somehow or other, will be heard by the legislature and I think we ought to have as separately elected officials, the opportunity to stand up in front of you and argue our case and if we do not articulate it well, you will surely vote it down.
Senator Callister stated:
I want you to have that opportunity. I think that is exactly what your duty is. But, the question of whether, the way you get those bills introduced in this odd scenario where your own budget director or somebody else has said no, we don't want that, is exactly what I think has occurred. You have approached the right person, the committee of introduction. You have asked for some consideration. I would think that in, although I don't share the same party affiliation, 99 times out of 100 that I have seen it in my 6 or 7 years here, the chairman has been more than accommodating to provide the opportunity for the dialogue, to consider the measures you feel are so important. If it is a question of whose name is on the bill then I think we are talking about something rather innocuous. But, if it is a question of getting the issue heard, then I support you. I want the issues and the ideas heard. I am a big believer in that aspect of the system. I don't think you have to upset the apple cart necessarily to accomplish your goal. And I am troubled even by the public perception that somehow there is infighting amongst constitutional officers, irrespective of party affiliation or anything else. You are all elected, first and foremost, to serve the general public good. If you have dissention among yourselves, I'm not certain that is serving the public good. We hope we can afford your form here and I am certain that the chairman will, irrespective if that means you have to adopt a different procedure to get your measures before us. It seems to be that there is a remedy for you, I guess is what I am saying. I apologize for my lengthiness, Madame Chair. I think that is what I am saying. Where there is a remedy already available, I am not certain we need to adopt another one.
Senator Hickey stated:
I would like to go to systems because I have seen these fights or disagreements even on a municipal level when dealing with courts and that difference between how a court is managing the amount of money allocated to that court, the difference in the fight between city managers and judges, elected officials, in many cases. It seems to me, and I think Senator Callister pointed it out very well, at least to my dealing with the system, the system you are a part of, albeit that you also have the opportunity to reach legislators, you said preconceived and it was a term that bothered me because I've always felt first I have to listen to both sides to really make a determination. I'm sure many of us feel the same way. In part of that system and I have yet to hear a strong enough argument that you should be set loose from this system except one issue, that you are an elected official and therefore as an elected official you should be set aside from a system and you just heard Senator Callister talk about the constitution and you being part of the executive branch, a third part of our system. I don't know, I'm waiting. I would like your comments maybe, because I have due respect for both of you gentlemen and it is fair to hear your arguments.
Mr. Daines answered:
You know I think each of us have been, we're allowed five bill drafts, for instance, to submit to the legislature. I don't know how many of the treasurers...
Senator Hickey queried:
On this particular issue, what we are talking about is something that, it is very hard to change me when I am used to a tradition and all of these years there has not been a problem and I am not adverse to listening to a change because of problems, but I think it is up to you to present compelling arguments to change.
Mr. Daines explained:
I thought I had. Obviously I didn't say what you wanted or needed to hear. I can go back and try again but, unless you are ready to help me Bob [Seale], that is probably about everything I can say about it. Unless you have some questions for me.
Senator Raggio stated:
I have been wavering back and forth on this since you first brought it in here. I don't view it as a separation of power. I view that as the distinction between the three, clearly the three branches of government, the judicial, executive and the legislative branch. But, I don't think that is where the decision ought to rest in this particular case. I do think there is a distinction between the constitutional officers, duly elected, in the executive branch and the appointed members of the executive branch who I might say, parenthetically do have the right to directly come to the legislature with their bill drafts. So we have made some exceptions even though they are executive branch. It troubles me that a situation can occur and I think we are dancing around it, but there can be political differences where you have elected officers, albeit they are in the same branch of government. The power to control the budget of any officer of any agency is a very awesome power. While we might have the last decision as a practical matter, I think we should concede that the executive budgets as it comes to us is rather persuasive and the difference is that a budget, the burden shifts to the agency head to really change the executive budget or modify it and whether our political differences, and I am not saying that has occurred here. A governor, a budget director who is the minion of the governor, could act in a retaliatory fashion and then the burden would be upon that officer. That's not true with generally appointed heads because that political partisan difference is not usually there, it is not allowed to be. I guess, therefore, I could see a distinction even though this isn't a separation of powers, I think for your constitutional officers, where there is an authority under the constitution that there is a reason for you to be allowed to, in the first instance, present your budget. Now, it can occur when the elected officer is not of an opposite party as the governor and we have that situation with some of the other constitutional officers. So I don't see a great deal of problem with acceding to this request and I might tell you I didn't come to this decision, when you first presented it I had some concerns about it. But, for those reasons I see it as an opportunity for the constitutional officers to protect the constitutional duties which each of you, which the attorney general, which the secretary of state have and to not put you in the posture of having to overcome the burden of changing your budget. I think that would be better placed in the budget office to indicate why they don't think your budget is necessary in view of your constitutional authority. So, that is how I have come down on this issue. Now, mine might be a minority opinion but, that is how I see it.
Senator Hickey asked, "I just have a technical question here. My understanding there are 18 elected officers that this will affect."
Mr. Daines answered, "No, there should be five plus the Governor."
Senator Hickey asked:
In my notes I have written down there is an affect, Madame Chairman, I know what you did in statute here, the limitations, but I understand we have 18 elected officers that it [S.B. 52] possibly could affect that are not named in here.
Mr. Daines replied, "I don't know of who the 7th, 8th, 9th and so forth would be. I don't know who you are referring to."
Senator Hickey remarked, " Okay."
Senator Raggio stated:
My reference would be to the ones I indicated, the controller, treasurer, secretary of state, attorney general and lieutenant governor. Now, those are the state constitutional officers. My remarks would be limited to those officers. Now, I would agree you have people who are elected to the state board of education or people, but I am not talking about boards.
Senator Hickey stressed:
There may be amendments and so forth because of the importance of depending on the issues and then maybe if you consider that these officers, I don't know what your feeling is, muzzled, if that is the correct term then maybe perhaps we should broaden it. I don't know. I don't know what the feeling of this committee is.
Senator O'Connell commented, "I believe, Senator Hickey, on page 2 of the bill that it specifically..."
Senator Hickey stressed:
I am not thinking of just the bill, Madame Chairman, I am thinking of what we are talking about here is government and the philosophy of government and I think perhaps, maybe what we ought to think is to look at the total electorate, whether it is proper or improper for elected officials to come before finance committees and ways and means committees. If you are talking about limitations and the argument is we don't want to limit elected officials, then if we are going to accept that argument then we should look at all elected officials.
Senator Nevin asked:
I am just curious because you two gentlemen are the only ones here testifying on this. Is everybody else listed here in favor? I haven't heard anything from anybody else.
Mr. Seale answered, "I know of no opposition."
Senator Nevin inquired, "You don't know of any opposition from the attorney general or the lieutenant governor?"
Mr. Seale stated:
I think the answer was, one of them said 'I don't feel strongly about it.' That they were supportive of the legislation. When we started this a year ago, it was my understanding there was full support.
Senator Nevin said, "Thank you."
Senator Callister stated:
I don't want to delay with the debate because I can count. But, it occurs to me, and I appreciate Senator Raggio's remarks and I appreciate Senator Hickey's remarks. I think he makes an important point, I think it is very difficult to make your distinction simply based on whether you are an elected officer on a statewide basis or not. Or else you get into all kinds of deep water that would take it beyond just you gentlemen and perhaps the lieutenant governor and secretary of state. But, I cannot help but disagree with Senator Raggio's analysis in regards to whether this is or is not a separation of powers issue. I think it is a separation of powers issue in terms of the three branches which are unique as amongst themselves. They themselves have these unique rights too, in some states as my associate, Senator Rhoades points out, the legislature can present its own budget. It is not a right we have here, but arguably I could see that challenge being raised and it is immune I would imagine in some states because of that same separations of powers argument. I guess I am only pointing that out because there is a distinction between an officer elected statewide, be he a constitutional officer or otherwise. And one of the three branches. The three branches are the three branches, there aren't anymore. In my reading of the constitution makes that clear. That the powers of the government of the State of Nevada shall be divided into three separate departments; the legislative, the executive and the judicial. And no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions not pertaining to either of the others. And I would suggest that is what you are seeking here today, the right to be a person within the branch, albeit, of the executive branch, but nevertheless seeking to exercise powers properly belonging to the branch and not to yourself, but to the branch. For purposes of the record I was reading from Article 3 Section 1 [Nevada Revised Statutes {NRS}], and then flipping over to Article 5, Section 1 [NRS] 'the supreme executive power of this state shall be vested in a chief magistrate who shall be Governor of the State of Nevada'. And I am sorry, I understand the issue. I disagree again with Senator Raggio, I don't think it is a question of differences in politics, I think it is a difference in personalities. I think that transcends politics more frequently than do the difference in partisan nature.
Senator Raggio remarked:
Senator, you may have misheard me. I said I didn't buy their argument that it was a separation of powers. I agree with you on that so I was basing my...not that I agree with it, it is not a separation of power.
Senator Callister stated:
Well, I guess what I was saying Senator, is I think it is. I think the point is, you have three branches, independent of each other, have significant authorities. Those three branches have power and that's why I first cited from Article 3 [NRS]. Each of those branches has specific powers. But, also under the constitution, I will read again 'no person charged with the exercise of powers properly belonging to one of these departments shall exercise any functions not pertaining to the others.' My suggestion is that the only person, who in this instance has the supreme power of the executive is the Governor whether you're of his party or not of his party, whether you get along with him or get along with his staff, that is the constitution. I think, quite candidly, the real reason why I have to oppose S.B. 52 is because I think it is in violation of the constitution. I think it seeks to give to someone other than, or to diminish this supreme executive power and quite candidly I can't understand how you could be said to have the supreme executive power of this state and not control the budgets of your division chiefs. Now I will stand corrected on Senator Raggio's earlier comment and that is to the right to submit bill drafts. If every agency has that, then I think that [it] is a right they should have. I don't understand any distinction there. I guess the point I am making is although you are lucky or unlucky enough to be independently elected as opposed to appointed, I don't believe that gives you a unilateral different right, an absolute control over your budget. I don't believe it. And so for those reasons I would oppose this measure. Thank you Madame Chairman.
Mr. Daines explained:
If I might just answer your question. I think if that is what they intended that they would have added a few more words and said specifically that we would answer to the Governor and they didn't and I don't think it was ever intended that we answer to the Governor because it was always intended that the party affiliation was not the dividing line. Other than that we would all belong to the same party and then we would have marching orders from the head of the party. But, in this particular instance we don't. We are independent.
Senator Callister inquired:
Let me understand what you are saying. You are saying separate apart from the right to submit your own budget which is what S.B. 52 is. You think you have no obligation to the Governor? You are not under his control whatsoever? Is that what your testimony is here today, Darrel?
Mr. Daines answered, "Yes. I think that is essentially true."
Senator Callister asked, "Doesn't that in effect make you some fourth branch of government?"
Mr. Daines explained, "No. I don't see that. I don't see that at all."
Senator O'Connell suggested:
If the committee chairman can exercise my right, I have allowed this to go on because I think it is a very important issue. I do think we have probably covered all the bases that we are going to cover, though right now. Thank you gentlemen for your time and for coming back over and I thank the committee for their very lively discussion on this issue because I think it is a very important issue. However, the chair would now accept a motion on S.B. 52.
SENATOR RAGGIO MOVED TO DO PASS S.B. 52.
SENATOR NEVIN SECONDED THE MOTION.
Senator Callister asked the committee if the attorney general is considered a constitutional officer or simply separately elected as he was unable to find that position listed in the constitution whereby that position is constitutionally created.
Senator Raggio stated he was basing his decisions on the constitutional genesis of the office and he asked that Senator Callister's question be answered.
Senator Callister did find in the constitution where the attorney general is considered part of the group within the constitutional officers.
THE MOTION CARRIED. (SENATORS CALLISTER AND HICKEY VOTED NO.)
* * * * *
Senator O'Connell opened the meeting on S.B. 54.
S.B. 54: Requires public body to retain permanently minutes of its public meetings.
Marvin Leavitt, City of Las Vegas, spoke in favor of S.B. 54. Mr. Leavitt explained to the committee why this bill is necessary. He stated the legislature had tackled the issue before on how long public records should be retained. Mr. Leavitt further explained as the discussion evolved it became so complex eventually the state librarian was given the responsibility to contact various agencies, including both local and state agencies. The agencies were instructed to adopt by regulation a schedule for the retention of all records. Mr. Leavitt stated the local government expressed some concerns regarding having a state employee be responsible for the determination of the record keeping responsibility for local governments. Therefore a statute was added to the Nevada Revised Statutes [NRS] 239.125 which states the librarian must go to the local government advisory committee which is composed of representatives of various government departments. The librarian must get the committee's opinion as to the record schedule and retention schedule which were put forth by the librarian. Mr. Leavitt stated the regulations were adopted in 1983.
Mr. Leavitt explained this bill comes from the clerks rather than the City of Las Vegas as they keep their records on a permanent basis and it is not a problem for them. However, there are cases where newly appointed officials who were not aware of the administrative code and they would destroy their records after 5 years. Mr. Leavitt explained this bill would just codify the preexisting law.
Senator Nevin asked Mr. Leavitt about the fiscal note that should accompany this bill.
Senator O'Connell told the committee she has requested the fiscal notes twice and they should be in the bill books with the bills as soon as possible.
SENATOR RHOADS MOVED TO DO PASS S.B. 54.
SENATOR CALLISTER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
* * * * *
Senator O'Connell opened the hearing on S.B. 81 and S.B. 82.
S.B. 81: Provides for establishment of fees for child and family services.
S.B. 82: Requires division of child and family services of department of human resources to adopt certain regulations in accordance with Nevada Administrative Procedure Act.
Senator Callister stated he spoke with a member of the interim study committee, Assemblywoman Evans, who confirmed that both S.B. 81 and S.B. 82 were requested as a result of the interim study. Mrs. Evans stated they were not notified and would have appeared for the meeting, but they did not mean any slight to the committee whatsoever. Mrs. Evans stated the interim committee does support the passage. Senator Callister told the committee he was most troubled with S.B. 81 and Mrs. Evans had told him there was already a schedule for fees, but the difficulty is it is a fixed schedule rather than a sliding schedule. She feels the legislature needs to make this a sliding schedule so they could accommodate those with lesser resources. Senator Callister stated this seemed to be a reasonable response.
Senator Raggio stated the language should be changed to make provisions to set fees and also to have authority to waive fees in certain cases, therefore, he has no objection to the bill, he would just like an amendment to that effect.
Senator O'Connell asked the committee if they would like to hold S.B. 82 until they see the language of the amendment. The committee members all agreed they would like to wait for the amendment.
Senator O'Connell asked for a motion on S.B. 81.
SENATOR NEVIN MOVED TO DO PASS S.B. 81.
SENATOR HICKEY SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
* * * * *
Senator O'Connell opened the meeting on S.B. 90.
S.B. 90: Establishes policy and procedure for naming state property.
Senator O'Connell stated Senator Adler has requested to give the committee the language he would like in the amendment of this bill.
Senator Hickey stated he had some suggestions which he had forgotten to bring to the meeting and he requested the committee hold the bill until the next work session.
Senator O'Connell closed the meeting on S.B. 90 and opened the meeting on S.B. 109.
S.B. 109: Makes various changes relating to certain accounts maintained for use by office of secretary of state.
Senator O'Connell stated Senator Hickey and Senator Nevin had several questions on this bill. Senator O'Connell told the committee she had discussed this with Darrel Daines, Nevada State Controller today and he is taking a copy of the minutes from that meeting with him so he will be able to give the committee the information they need. Senator O'Connell stated the committee would hold S.B. 109 until they get information from Mr. Daines.
Senator O'Connell opened the meeting on S.B. 110.
S.B. 110: Expands authority of Nevada equal rights commission to issue subpenas.
Senator O'Connell stated she asked George Cotton, Clark County Affirmative Action Manager, Clark County Managers Office, if he would speak again to the committee regarding this bill as two of the committee members were absent when he spoke previously on S.B. 110.
Mr. Cotton stated:
We had some concerns the other day with regard to the broadness of the subpoena powers that will be given to the commission [Equal Rights Commission {ERC}] at this stage. If they are allowed to, if the subpoena is relative to any investigations and feel it would negate the informal meeting process that was set up by the legislature in 1977. During that time I was on the other side with the commission [ERC] requesting that that power be issued. If it goes as it is written they would be able to call the chief executive officer in and they would be able to call anyone in to that informal meeting. We have had experiences as a city of being asked to download and copy up to 300 personnel files on employees to bring to that informal meeting and that meeting initially, as I recall, when I sat here when the senators told us they wanted us to hold those meetings to allow the respondent to come in and to try to find a way to settle a complaint. Those meetings now are really an adversarial hearing with the plaintiff's attorney there with them conducting discovery through asking questions through their complainant and the Equal Rights Commission Investigator almost taking a stance of concluding that the employer is guilty. And if you talk to any employer who has been there, they are feeling the same way. And the biggest concern is the expense of having to download the data that they ask for and we don't have the right to ask the relevancy. The supreme court issued an opinion in 1991, they ruled that the commission [ERC] did not have subpoena powers and the legislators did not intend to give it to them during the investigative stage and in spite of that, even in their charge letters that have come out subsequent to that, the commission [ERC] still states if you refuse to attend the fact-finding conference you may be required by subpoena at appear at the commission [ERC] offices and be questioned about disputed factual matters even though the state supreme court has said the subpoena power is related to public hearings. So we certainly have a concern if they get a broad blank check from the legislature that they can issue subpoenas without some type of control. At least the subpoena power, if it would come after, specifically after the informal meeting, it would be a bit more palatable to the employers. We would at least have the chance to see if they could resolve the matters before it got to the stage of having to engage in an adversarial fight with the commission.
Senator Callister asked:
How can you address or negotiate and hence resolve if you don't have the evidence in front of you? You don't even have any documents in front of you because an employer says 'I don't got to give you the documents.'
Mr. Cotton answered:
Senator, I conducted many of those informal meetings for the commission [ERC] at a time when people were very reluctant to respond to anything and to give us anything. That is why, initially,we asked for subpoena powers in [19] 77. I conducted hearings after they were denied and the intent of those meetings, because they were not in place prior to that time, was to get the two parties together to identify which areas were disputed, to allow the person with authority to make decisions, to become aware of the charges of the complaining party and to try to resolve the settlement. But, right now we're, they are doing their investigation at that informal meeting. In a case we had that went before the supreme court I had staff that pulled records for me, after the court ruled they had the subpoena power and gave them directions to go back to complete their investigation and if they could not resolve it for them to then set a public hearing and issue the subpoenas at that stage. They never did anything else on it. And in December of 1992 we got a letter that they were closing the case because of insufficient evidence to sustain the charge. They were not going forward. So, it is clear that if they are going to do their job and they do it appropriately, they can do it without having subpoena power at that stage. I have been there and I have done it and we were effective in doing it from my tenure with the commission [ERC] from 1973 to 1979 and we did not get the informal meeting until 1977 when I was with the commission [ERC].
Senator Callister stated:
I appreciate hearing someone with experience address it, but I would respectfully suggest in 1977 this was perhaps not quite the issue it is today. And that, additionally, I would suggest that the reason we create these administrative forms is to try to resolve it at the form and as both sides have become more prone to use counsel and more sophisticated and as employers, many of whom will not be as conciliatory or as accommodating as you are. Most of whom do not come to that negotiating circumstance with your unique background and I would suggest, respectfully, that that is part of the dilemma here. You are perhaps one of the very few employers in the state who is large enough to be able to seek out an employee, a former member of this organization to represent them. So I would suggest that many, if indeed perhaps most, are not as enlightened as you are, more inclined to simply call up their attorney. Their attorney is going to say, 'go to the meeting and see what you can find out, but don't give them any documents.' Which is a sure route to exacerbate and thereby lengthen the process, not shorten it and that is exactly what the testimony was from the presenter on behalf of this measure. That is what has in fact occurred. We have not shortened it, we have not utilized our administrative remedies, we simply protracted the whole process and ended up in court more frequently because you have to go to court to be able to have subpoena power to get the documents so that you can then begin to address, how do we settle the issue.
Senator Raggio asserted:
Yes, I am persuaded by what you are saying and I have had some personal experiences Senator Callister has with these hearings and I understand the preliminary proceedings and what they are designed for and I do agree they are designed for getting the parties together. Now, I don't want to diminish the importance of the Equal Rights Commission and what its function is. What I am concerned about is the extension of subpoena power to investigations, just generally. I was a district attorney and I would have loved to have had subpoena power for any investigation we wanted to conduct. We did not have that. Today, district attorneys or police departments are not given subpoena power to go out and investigate. It is a very, very dangerous power that can be misused easily and so I guess apart from the Equal Rights Commission, now that I am not a district attorney, I understand why there was concern about it. It is an intrusion into people's lives and affairs. I have no quarrel at a formal hearing with the right to have subpoena power but, I would hate to set a precedent here to give subpoena power for an investigation that would then, somebody would come in and say you are doing it here, why can't we have subpoena power for investigative purposes. Now, a grand jury has the right to do that, but that is body that is prepared to do an indictment. I think I...even though I might share Senator Callister's belief that maybe a lot could be accomplished, I am not going to be a party to extending that subpoena power as a precedent in investigations.
Senator Callister asked if the committee had discussed during the last debate on S.B. 110 inserting some language to narrow the extent of what could be subpoenaed in response to the concerns raised by Senator Raggio.
Mr. Cotton stated he suggested they put language in paragraph 3 stating, relevant to any hearings which commence after the informal meeting as required by NEVADA REVISED STATUTE (NRS) 233.170. Mr. Cotton explained this would still give the Equal Rights Commission the power during investigations.
Senator Callister remarked:
The language you just read would only allow them the power of subpoena after the preliminary so you could still accomplish what you are intending which is what I would consider if you are in a judicial form of the pretrial conference and then at that point discovery would ensue. That is kind of the model they have in a court room is you have to get together with the other attorney and talk about the case. You are supposed to present at that time, all the documents that you have, that you think you are going to put into evidence so that you can have a reasonable conversation with the documents that are at hand. But the senator [Raggio] is right, you don't have the right to proceed with formal discovery until after that conference. It seems to me that that would perhaps be the way to create something that both accommodates the notion of an initial meeting without a subpoena power but, then not only allowing the subpoena power to arise at the last minute when you go to the formal hearing. It seems to me that is the box you are in right now. At the informal meeting the testimony is nothing is happening because there is not an exchange of documents and then at the formal meeting it is all at that last minute. So, there is very little in between. Does something on those lines seem reasonable to you? Or would you rather wait for the formal hearing for anything?
Mr. Cotton answered:
I would rather see them maintain it as it is. You can set a public hearing, you can notice a public hearing at that time. The supreme court stated they have the right to issue subpoenas but, then we also have the right to access what their case is about. And what is happening, you talked about it the other day, is that most people are really going through the motions to get ready for their lawsuit and particularly the Civil Rights Act of 1991 which allows no caps or ceilings on the damages.
Senator Raggio stated:
What concerns me, Matt [Callister], is, and I am really concerned about the precedent. Who would the subpoena direct them to bring the documents to? To some investigator, to some individual. It is bothersome to me unless it is judicial or quasi-judicial setting where there is some control over the efficacy or relevancy of the documents. I just don't like giving investigators the right to command people to bring things to them. Now, I admit that this may be a higher cause than most things, but I do think it is an invasion that we ought to be concerned about.
Senator Callister explained:
I share in response to your concern, I share that concern. And that is why I thought what we were going to hear today was your recommendation for some limited power, either between the initial informal meeting and the formal hearing to something that had some restraints on it because I understand the concern. But, quite frankly in the absence of doing anything, what we are going to have is a continuance of what you just said is occurring. Eighteen-month delays until you get into a court room because you can't get the documents to resolve the thing until you get into the court room. That is unfortunate. It is good for the attorneys, bad for the complainants and bad for the state.
Mr. Cotton stated:
Senator, I guess, my concern is that when I was in the agency and this process for the informal meeting was set up in [19] 77, that was a time when civil rights was not palatable to most employers in this state and as far as having the reluctance to getting documents, we were getting thrown out of properties including governmental offices at that time and told 'just leave, you can't have a thing.' And we still were able to conduct our investigations, arrive at a probable cause finding and at that point a public hearing was set and the subpoena powers were invoked and the hearing officer who was an attorney or one of the commissioners were able to go forward with the process and we did not have the backlog that the commission has now.
Senator Nevin raised the same concerns he raised when he first heard this bill. He stated what bothered him about this bill more than anything else is any investigation can be turned into a fishing expedition. Senator Nevin explained the investigators can fish into any records without basis just because of a complaint investigation.
SENATOR NEVIN MOVED TO INDEFINITELY POSTPONE S.B. 110.
SENATOR RHOADS SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR CALLISTER VOTED NO.)
* * * * *
Senator O'Connell opened the meeting on S.B. 111.
S.B. 111: Clarifies that it is authorized expenditure to use money in reserve for statutory contingency account to pay certain losses of public money.
Senator O'Connell explained this bill is from the budget office and it is simply an oversight in the law which required the committee to include a section where it belongs.
SENATOR RHOADS MOVED TO DO PASS S.B. 111.
SENATOR HICKEY SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
* * * * *
Senator O'Connell opened the meeting on S.B. 112.
S.B. 112: Requires school district to include in its budget appropriation for unreserved general fund balances.
Senator Nevin stated he understood they already have a precedent and they do not need a mandate as it is already prescribed. He explained this bill mandates and he does not feel there should be a mandate on an issue like this so therefore he is opposed to S.B. 112.
Senator O'Connell stated the only issue she has a question about is about this bill being directly related to the bonding activity.
Roger Means, Washoe County School District, spoke in favor of S.B. 112. He stated this bill would specifically force his school district to maintain a fiscally prudent minimum ending fund balance. Mr. Means explained the Washoe County School District bond rating has been dropped in their recent bond issue. He further explained his school district has chosen to meet budget demands out of the ending fund balance to protect program and employees and therefore get hit financially on the ending fund balance. Mr. Means declared what this bill really does is force Washoe County School District to clean house.
Senator Hickey asked Mr. Means if they indicted the Washoe County School Board for not managing their budget properly?
Mr. Means stated he does not believe he did that to the school board.
Senator Hickey asked if it was the responsibility of the school board to manage their budget in proper order? He further asked if it was not the board's responsibility to have the ending fund balance in proper order, to pass budgets and set budget standards?
Mr. Means stated that was accurate.
Senator Hickey then stated that is what Mr. Means has done, indicted the Washoe County School Board for not properly managing their budget. He explained it is stated in the bill the legislature needs to step in and straighten out the school district.
Mr. Means said that was not exactly right. He stated what he said was the school district had not maintained an adequate ending fund balance to maintain their bond rating.
SENATOR CALLISTER MOVED TO INDEFINITELY POSTPONE S.B. 112.
SENATOR HICKEY SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR RHOADS VOTED NO.)
* * * * *
There being no further business, Senator O'Connell adjourned the meeting at 3:35.
RESPECTFULLY SUBMITTED:
Tanya Morrison,
Committee Secretary
APPROVED BY:
Senator Ann O'Connell, Chairman
DATE:
??
Senate Committee on Government Affairs
February 3, 1993
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