MINUTES OF THE
SENATE COMMITTEE ON GOVERNMENT AFFAIRS
Sixty-seventh Session
June 2, 1993
The Senate Committee on Government Affairs was called to order by Chairman Ann O'Connell, at 2:00 p.m., on Wednesday, June 2, 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 Dean A. Rhoads
Senator Thomas J. Hickey
Senator Leonard V. Nevin
Senator Matthew Q. Callister
COMMITTEE MEMBERS ABSENT:
Senator Sue Lowden, Vice Chairman (Excused)
Senator William J. Raggio (Excused)
STAFF MEMBERS PRESENT:
Caren Jenkins, Principal Research Analyst
Tanya Morrison, Committee Secretary
OTHERS PRESENT:
Frankie Sue Del Papa, Attorney General, State of Nevada
Brian Chally, Senior Deputy Attorney General, Attorney General's Office
Madelyn Shipman, Lobbyist, City of Reno
Anita LaRuy, Lobbyist, City of North Las Vegas
Pam Wilcox, Administrator, Division of State Lands
Tom Grady, Lobbyist, Nevada League of Cities
Greg Evangelatos, Community Development Director, City of Sparks
Paul Lipparelli, Deputy District Attorney, Carson City
Richard Gleed, Business Representative, Operating Engineers Local Union No. 3
Mike Johaneson, Representative, Service Employees International Union
Bob Gagnier, Executive Director, State of Nevada Employees Association
Chairman O'Connell opened the meeting on Senate Bill (S.B.) 142 and Senate Bill (S.B.) 384.
SENATE BILL 142: Protects private property from regulatory taking by government.
SENATE BILL 384: Establishes remedies for certain regulatory actions that reduce value of real property.
Senator Rhoads told the committee he would like to indefinitely postpone these two bills.
SENATE NEVIN MOVED TO INDEFINITELY POSTPONE S.B. 142 AND S.B. 384.
SENATOR RHOADS SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR RAGGIO AND SENATOR LOWDEN WERE ABSENT FOR THE VOTE. SENATOR HICKEY ABSTAINED FROM THE VOTE.)
* * * * *
Chairman O'Connell opened the hearing on Senate Bill (S.B.) 285.
SENATE BILL 285: Requires executive branch of state government to prepare assessment of takings implications on private property for certain governmental actions.
Senator Rhoads gave the committee members copies of proposed amendments he had for S.B. 285, Exhibit C.
Frankie Sue Del Papa, Attorney General, State of Nevada, told the committee she is against S.B. 285 and also wanted to specifically address certain comments that were made at the previous hearing. She explained she was not able to be at the last meeting. She stated she had submitted a fiscal note on this bill to the chairman. Ms. Del Papa stated it is her understanding that one of the chief advocates for this particular bill has testified before this committee that there is not a problem in Nevada. She stated the abuses that had been discussed were primarily federal abuses and she stated the abuses in California are not in the state of Nevada. She told the committee she does not feel these bills will correct an existing problem and she pointed out there is a clear solution if a problem does arise or if an abuse does occur. She explained the legislature can and should withdraw the power of any agency, county or city to act if they feel those entities have been acting abusively or causing problems. She stated this particular bill does not relieve the necessity of going to court. She maintained this bill would actually encourage litigation in takings. She stated her office submitted fiscal notes to all of these bills and she added in the testimony in the past there has been disagreements or disputes with reference to the fiscal notes. She pointed out what has not been disputed is the fact that there will be an increase in litigation if this bill passes and there will be an increase in money spent in litigation. She added there is no dispute with regard to the increase of cost to the taxpayers to pay for litigation and for judgements. She stated there cannot be any dispute that the attorney general's fiscal note represents only a small portion of the impact because of other agencies that have not been asked for their impact estimates. She added if there are problems felt to be in this area, the best corrective action starts with the legislature. She explained that action of the legislature would be to take action to withdraw authority of a so-called abusing agency.
Brian Chally, Senior Deputy Attorney General, Attorney General's Office, spoke on S.B. 285. He told the committee he feels there is a serious question of loss of Environmental Protection Agency (EPA) delegation for the air, the hazardous waste and the water programs. He explained the question has already arisen in Arizona and the EPA has put it on the back burner because the referendum has effectively suspended Arizona's law. He stated his experience with the EPA is if they feel a state is in any way limited in carrying out the objectives of the federal statutes, they will consider revoking delegation and at that point the delegation Nevada spent 20 years obtaining could be revoked and it would take a long time to get it back. He explained the EPA is very strict about what they will accept and what laws they consider unacceptable to them in precluding delegation. He stated with respect to the publication for conservation alone it is 18,000 pieces of paper per year and in addition to that if the attorney general decides to take any action on an air enforcement or water enforcement case, the Attorney General's Office will have to fill that out before they can file a case. He noted if it is going to be extended to the counties before any district attorney or before the Attorney General's Office can even file a criminal case, they will have to do their own takings assessment. He explained there will be thousands of pieces of paper floating around. Mr. Chally stated Mr. Guild had emphasized any reasonably competent attorney can complete this form and he believes that, but the difference is the amount of time it will take to complete that form. He explained completing a two page form on complex issues such as the Las Vegas Valley Water Importation Project or the McCarran and Sparks tank farm fuel spills which are under litigation right now are tremendously complex questions. He told the committee the Attorney General's Office and the agency will have to fill these documents out and they will be available and they will be the subject of a litigation. He stated even though these documents cannot be used as evidence he feels a lot of litigation will proceed from this bill.
Senator Callister stated conceptially the notion behind this measure is simpler than is being characterized. He explained he feels the idea for this bill is to try to create a fairly simple device which may be something with which the attorney general might not need to have much involvement. He stated the concern is there are a myriad of significant decisions which are made on a daily basis by everybody including fish and wildlife and some of which are not environmental decisions. He emphasized these decisions will have the potential for reducing somebody elses private property rights. He stated he feels the intent of this bill is to craft a device which would make every agency stop and think whether they are utilizing the least invasive way to accomplish their goal.
Ms. Del Papa stated she appreciates the fact this bill is supposedly simple and she appreciates the concept, but she stated that has not been the case in litigation or other arenas. She told the committee S.B. 285 requires the attorney general to get involved in administrative policy matters which previously were not the attorney general's arena. She stated she does not feel this bill is needed.
Senator Callister asked Ms. Del Papa how she would feel about this bill if they change the language on line 18 to "each and every state agency shall adopt regulations for the evaluation of the risk and avoidance of unanticipated takings."
Mr. Chally told the committee it is a practical matter since most deputies serve in an advisory capacity to particular agencies and they also serve in an enforcement capacity. He explained even if they take the term "attorney general" from the statute, the agencies will come to the Attorney General's Office for advice.
Senator Callister asked if there is some device the Attorney General's Office would feel comfortable enough with to urge the policy makers to consider other options.
Ms. Del Papa stated she disagreed with Senator Callister and asked why the legislature could not accomplish the same thing with a resolution as opposed to a statute. She feels statutes invite increased litigation at a time when there is a shortage of resources in every agency.
Senator Rhoads stated this bill is very similar to the Arizona bill.
Ms. Del Papa stated she had not seen this bill in Arizona, but she knows after the passage of that bill it was felt there were problems relative to that law. She also told the committee Wyoming tried to pass a similar bill to this and it was defeated.
Senator Rhoads stated he had a letter from the speaker of the house in Arizona which stated they put no fiscal analysis on that particular takings bill even thought he attorney general for Arizona differs from that. He pointed out a similar bill to this one passed in Utah with no fiscal impact.
Ms. Del Papa told the committee it is her office's job to check each bill introduced by the legislature to assess its fiscal impact. She stated her office cannot ignore the diligence with reference to fiscal impact of these types of bills. She emphasized she takes these responsibilities very seriously.
Madelyn Shipman, Lobbyist, City of Reno, spoke on S.B. 285. She feels one problem not having been discussed today is in section 9. She told the committee the suggestions in this section cannot be done under the existing supreme court case law. She explained her point to the committee members. She also mentioned a problem with section 11 and she gave the committee some examples for which she explained her objection to this section.
Anita LaRuy, Lobbyist, City of North Las Vegas, told the committee the deputy attorney general who represents North Las Vegas could not be here today so she will express his opposition. She explained why she is opposed to S.B. 285 and led the committee through each objection step-by-step in the bill.
Pam Wilcox, Administrator, Division of State Lands, spoke in opposition to S.B. 285. She read directly from Exhibit E. She stated the state would be better served in regard to this issue by a resolution.
Tom Grady, Lobbyist, Nevada League of Cities, stated he feels with the amendments in Exhibit C the cities and the counties were included in this legislation. He explained his group feels very strongly there would be a fiscal impact mainly on the small cities who do not have full-time attorneys to follow this type of problem. He told the committee with the fiscal impact, they strongly oppose this bill as written.
Greg Evangelatos, Community Development Director, City of Sparks, told the committee he feels the municipalities seem to be running their affairs in a straightforward manner and why there would be a need to expand the analysis related to takings beyond what is currently being done. He stated he feels the bill is correcting a problem that does not exist and he added that is the perspective of the City of Sparks.
Paul Lipparelli, Deputy District Attorney, Carson City, stated his primary area of responsibility of advising the planning commission and
the board of supervisors with regard to land development issues. He told the committee he is concerned about the purposes of the bill. He gave the committee some examples of his concerns.
Chairman O'Connell closed the hearing on S.B. 285 and opened the hearing on Assembly Bill (A.B.) 517.
ASSEMBLY BILL 517: Allow employee to be represented at certain hearings by person of his own choosing.
Richard Gleed, Business Representative, Operating Engineers Local Union No. 3, spoke on A.B. 517. He told the committee he was representing a coalition of labor organizations that represent state employees. He pointed out section 2 of the bill which was the original portion of the bill introduced. He stated what this section attempts to do is straightforward. He explained currently employees of the state who are disciplined have an appeal right and that appeal takes them to a formal hearing before a hearing officer contracted for by the state. He stated currently an employee has two options when they go before that hearing officer. He told the committee they can either represent themselves or be represented by an attorney licensed to practice in this state. Mr. Gleed stated this bill seeks to provide an additional option for an employee to be represented in that hearing by somebody other than an attorney and other than themselves.
Chairman O'Connell asked if there is a prohibition to that presently.
Mr. Gleed stated currently there is an attorney general's opinion which recognizes appearances before hearing officers as a practice of law in this state and therefore has required that any representative other than the employee himself would have to be a licensed attorney. He explained in most examples under the collective bargaining law that provides representation for city, county and municipal employees that any representative of the employees choosing may appear on their behalf. He stated what they are seeking to do here is provide some additional options for the employees. He explained an employee who is of meager means and many of them currently with the state are may not be able to afford the services of an attorney, particularly if they are not members of an organization that provide that kind of representation. He pointed out section 1 of the bill. He stated currently a grievance filed by an employee goes through a grievance process ending with the employee management committee as the top level in that process. He stated at this point in time an employee at that level may be represented by anyone of their choosing, however he stated he believes this may also be determined as a "practice of law" by the Attorney General's Office. He told the committee at this time they are seeking to clarify in the statute if any grievance is pursued by an employee, they may be represented in that process by any one of their choosing.
Mike Johaneson, Representative, Service Employees International Union, spoke on A.B. 517. He told the committee he represents a number of public employees around the state and they do use attorneys at times in terminations and arbitrations. He explained it is to the benefit of the municipalities and to the employee to be generally represented by a business agent or someone with training in this area. He stated they are able to resolve matters much easier. He told the committee the state employees and the State of Nevada would benefit in the same way.
Bob Gagnier, Executive Director, State of Nevada Employees (SNEA) Association, spoke on A.B. 517. He told the committee he only wanted to speak to section 1 because that is their proposed amendment in the assembly which was adopted. He explained it only applies to the grievance procedure. He stated SNEA advised the committee there was an indication within the grievance procedure the Attorney General's Office was going to tell the employee management committee it was the practice of law and they would have to adopt a whole new set of regulations, putting people under oath and making a very legalistic forum to have the grievances. He told the committee that was one of the reasons they wanted arbitration instead of the employee management committee. Mr. Gagnier stated by regulation employees are allowed to choose anyone they wish to represent them in a grievance. He stated the purpose of section 1 in this bill is to head off the Attorney General's Office of making it the practice of law by their action and not by the action of the court. He explained if the court rules that way then they have no choice, but for the attorney general to step forward and tell them to make it a legalistic affair with attorneys it will slow down the process and increase everybody's costs. He pointed out the employee management committee prefers when state agencies come in not to be represented by a deputy attorney general. He explained this way they get to the nitty-gritty of the grievance rather than the form of the grievance. He urged the committee to at least pass section 1 of this bill. He stated they have no concern with section 2 for the simple reason they always provide an attorney to their members in those instances.
Senator Hickey asked when a grievance is formalized and how it comes to a hearing.
Mr. Gagnier stated the grievance is formalized as soon as it is put in writing with the supervisor. He explained it ends up in final hearing if the employee appeals to the employment management committee and they would schedule a hearing.
Senator Hickey asked if the employee could bring in an attorney at that point.
Mr. Gagnier told the committee the individual could bring in an attorney, but they never do. He explained some agencies use their deputy attorney generals, but SNEA has the employee representatives do this. He pointed out they are not talking about discipline in this particular instance and the only form of discipline which might be addressed here is a written reprimand. He explained this bill would allow the employee to have anybody of his choice represent him. He stated this would parallel the regulation we have currently on the grievance procedure.
SENATOR RHOADS MOVED TO DO PASS A.B. 517.
SENATOR NEVIN SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR RAGGIO AND SENATOR LOWDEN WERE ABSENT FOR THE VOTE.)
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Chairman O'Connell closed the hearing on A.B. 517 and opened the hearing on Senate Bill S.B. 145.
SENATE BILL 145: Exempts customary agricultural activity from certain local ordinances concerning air pollution.
Chairman O'Connell told the committee there were amendments proposed by the assembly which changes lines 11 of the bill and anywhere else the words "reasonable agricultural activity" are found in the bill. She explained it is changed to "customarily accepted agricultural practices" and that is the only change to the bill.
Senator Hickey asked the committee to hold this bill until he could familiarize himself with it.
Chairman O'Connell closed the hearing on S.B. 145 and opened the hearing on Bill Draft Request (BDR) 38-2027 and Bill Draft Request (BDR) 25-705.
BILL DRAFT REQUEST 38-2027: Revises manner in which interest must be paid to individual accounts in trust fund for child welfare.
BILL DRAFT REQUEST 25-705: Simplifies procedures for establishment and collection of liens of general improvement districts for unpaid charges.
SENATOR NEVIN MOVED FOR COMMITTEE INTRODUCION BDR 38-2027 AND BDR 25-705.
SENATOR CALLISTER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR LOWDEN AND SENATOR RAGGIO WERE ABSENT FOR THE VOTE.)
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Chairman O'Connell having no further business adjourned the meeting at 3:45 p.m.
RESPECTFULLY SUBMITTED:
Tanya Morrison,
Committee Secretary
APPROVED BY:
Senator Ann O'Connell, Chairman
DATE:
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Senate Committee on Government Affairs
June 2, 1993
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