MINUTES OF THE
SENATE COMMITTEE ON HUMAN RESOURCES AND FACILITIES
Sixty-seventh Session
April 28, 1993
The Senate Committee on Human Resources and Facilities was called to order by Chairman Raymond D. Rawson, at 2:03 p.m., on Wednesday, April 28, 1993, in Room 226 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda. Exhibit B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Senator Raymond D. Rawson, Chairman
Senator William R. O'Donnell, Vice Chairman
Senator Joseph M. Neal, Jr.
Senator Bob Coffin
Senator Diana M. Glomb
Senator Lori L. Brown
COMMITTEE MEMBERS ABSENT:
Senator Randolph J. Townsend (Excused)
STAFF MEMBERS PRESENT:
Pepper Sturm, Research Analyst
Susan Henson, Committee Secretary
Judy Alexander, Committee Secretary
OTHERS PRESENT:
David Perlman, Administrator, Commission on Postsecondary Education, State of Nevada
Mary T. Morrison, Owner/Vice President, Morrison College, Reno, Representing Nevada Association of Private Schools
Grant Gailey, Representing Nevada Association of Private Schools
Lindsey Jydstrup, Lobbyist, Nevada State Education Association (NSEA)
Dr. Eugene Paslov, Superintendent of Public Instruction, State Department of Education
Henry Etchemendy, Lobbyist, Nevada Association of School Boards (NASB)
Gregory F. Betts, Lobbyist, Rural School Districts of Nevada
Debbie Cahill, Lobbyist, Nevada State Education Association (NSEA)
Chairman Rawson opened the hearing on Senate Bill (S.B.) 391.
SENATE BILL 391: Makes various changes concerning surety bonds required of private postsecondary educational institutions. (BDR 34-1897)
David Perlman, Administrator, Commission on Postsecondary Education, State of Nevada, testified in support of S.B. 391,
as referenced in his summary (Exhibit C).
Chairman Rawson asked Mr. Perlman if the indemnification is to cover tuition refunds, and if so, is it a total tuition refund if the school fails, or current term tuition? Mr. Perlman indicated that language is not addressed, but other laws dealing with refunds provide that if a school fails to fulfil its obligations, all money must be refunded.
Mr. Perlman explained the surety bond is a single bond required for each institution. Chairman Rawson asked if $10,000 would cover the obligations. Mr. Perlman noted in the majority of the nonaccredited schools, a $10,000 bond would probably be sufficient. The chairman wondered if the payoff is first come, first served, or is the money prorated to everyone? Mr. Perlman responded, to date it has not happened. He explained the Southern Technical Institute recently closed due to financial failure, with outstanding claims of $45,000. The state is ready to pay that amount on a prorated scale, however a lawsuit is pending and the money is being held in abeyance.
Chairman Rawson asked Mr. Perlman about the tuition recovery fund referred to in his testimony. Mr. Perlman stated a proposal for a tuition recovery fund was submitted 18 months ago. Under this plan the schools will be assessed a fee, either based on income, percentage of tuition, or a flat fee. The fund would build to a certain amount, cap and become a reserve account for refunds.
The chairman questioned what effect S.B. 391 would have on the schools. Mr. Perlman felt posting the bond could create a hardship for some schools. However, he emphasized the state has an obligation to protect the student.
Senator O'Donnell asked what kind of fee is collected in terms of licensing. Mr. Perlman advised Senator O'Donnell the initial one time licensure fee is $1,500, plus a $4 per student charge. This generates about $60,000 per year for the General Fund. The commission's budget is $223,000. The commission receives $70,000 from the Veteran's Administration (VA), with the rest coming from the General Fund. The commission operates out of Las Vegas with a staff of four persons; one secretary, and three professionals.
Mary T. Morrison, Owner/Vice President, Morrison College, Reno, and Grant Gailey, both representing the Nevada Association of Private Schools (NAPS), presented testimony in opposition to S.B. 391 (Exhibit D). She indicated NAPS is supportive of a state administered tuition recovery fund. In furtherance thereof, NAPS asked Senator Shaffer to sponsor Bill Draft Request (BDR) 34-1488.
BDR 34-1488: Establish tuition indemnity fund to indemnify student who has suffered damage because of act by postsecondary educational institution.
Ms. Morrison declared the contribution cost to the tuition recovery fund, per school, would probably be higher than bonding. However, the cost of the bond is not the real issue, rather the ability to get a bond.
Chairman Rawson explained to Ms. Morrison there are options available should the bill draft not come out this session. S.B. 391 could be reworked with new language to comport with BDR 34-1488, should Senator Shaffer agree.
Chairman Rawson asked Mr. Perlman how the commission feels about the tuition recovery fund. Mr. Perlman indicated the commission's concerns would disappear if the committee moved forward on legislation establishing a tuition recovery fund. He did not feel anybody else would object.
Ms. Morrison stressed the proposed language in BDR 34-1488 has left the fee assessment up to the commission to determine how that will be developed under regulation. She said the fund would be built up over a 4 to 5 year period and then be frozen.
SENATOR O'DONNELL MOVED TO EXPEDITE DRAFTING OF BDR 34-1488 AND INTRODUCTION OF SENATOR SHAFFER'S BILL.
SENATOR BROWN SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS NEAL AND TOWNSEND WERE ABSENT FOR THE VOTE.)
* * * * *
Chairman Rawson explained that BDR 34-1488 would probably be referred from the senate floor to this committee, at which time a hearing would be set and the appropriate parties notified.
Chairman Rawson closed the hearing on S.B. 391 and opened the hearing on S.B. 313.
SENATE BILL 313: Provides for binding arbitration for suspension or revocation of licenses of certain educational personnel by state board of education. (BDR 34-763)
Lindsey Jydstrup, Lobbyist, Nevada State Education Association (NSEA) presented an amendment to S.B. 313 (Exhibit E), and urged passage of the bill. She reminded the committee of the initial hearing at which time Dr. Eugene Paslov, Henry Etchemendy and herself requested time to work on an amendment to make the bill acceptable to all parties. This effort was two-thirds successful and pointed out Mr. Etchemendy would be coming before the committee to address his concerns.
Ms. Jydstrup explained when a recommendation is made for the suspension or revocation of a teacher's license, a hearing is conducted by a local hearing officer, and the hearing officer's findings and recommendations for action are presented to the State Board of Education for a final decision. This bill would require the state board, upon receiving a recommendation from a local school board, or the superintendent of public instruction, for suspension or revocation of a license, be required to notify the licensee that he or she is entitled to a hearing before an arbitrator, selected from a list of trained arbitrators maintained by the American Arbitration Association (AAA).
The bill outlines the selection process for choosing the arbitrator. If such a request is not made, the state board may suspend or revoke the license, or take no action. NSEA believes arbitrators are preferable to local hearing officers because, although they do tend to come from out-of-state, they are as well versed in Nevada law as local hearing officers, and less subject to local political pressures. NSEA feels the use of arbitrators insures the licensee a more objective and fair hearing.
Ms. Jydstrup noted as originally drafted, the bill would have made the arbitrator's decision binding on the State Board of Education. The state board contacted NSEA and indicated it had concerns about this provision, because they felt it removed them from the process. As a result, NSEA is proposing an amendment to delete the provision making the arbitrator's findings binding. Under the language of S.B. 313, either party can request a judicial review of the decision, which affectively gives the licensee a mechanism for appeal. This bill, with the proposed amendment, is an important step forward in providing fair and objective due process for the very few educators who are faced with the loss of their ability to continue their careers in the field of education.
Dr. Eugene Paslov, Superintendent of Public Instruction, State Department of Education, strongly urged passage of S.B. 313, with the proposed amendment. He stated he was originally concerned with the language making the decision binding on the state board of education, which has been resolved. There are few cases in which license revocations are contested. Dr. Paslov acknowledged he had no problem with the use of AAA arbitrators as hearing officers.
Chairman Rawson said this amendment appears to establish potential for judicial review, and it was his understanding the intent was to overcome judicial review by going to an arbitrator. In response, Dr. Paslov replied yes, but pointed out judicial review is, and has always been, an option under all the cases.
Dr. Paslov reviewed the process for suspension or revocation of a teacher's license with the committee. First, a teacher, administrator, or school employee gets into difficulty, usually a felony or gross misdemeanor. The appeal process starts at the local school district level with a hearing and works its way to the State Board of Education. If the decision for revocation is not contested, and reviewed by the state board's attorney, a recommendation for license revocation is fulfilled.
Chairman Rawson asked who wanted to put arbitrators in the hearing process. Ms. Jydstrup acknowledged it was NSEA's request. There exists a potential for cases to be contested, and NSEA wants to be sure the licensee has a fair, due process hearing on the front end.
Chairman Rawson pointed out a possible concern by some that an arbitrator has to find a certain number of cases in favor of the people that hire him. He emphasized that the hearing process is a damaging one.
Ms. Jydstrup stated NSEA feels the arbitrator option creates a fairer process. The AAA arbitrator is picked through a mutual selection process by the superintendent of public instruction and the licensee.
Dr. Paslov remarked that the state board has only had to take action on contested cases two or three times in the past 8 years, and there has been no judicial review after that. Ms. Jydstrup stressed NSEA does not feel this would open the judicial door, but rather would guarantee a more objection hearing on the front end.
The chairman asked if the teachers generally have representation regardless of the advice given them. In other words, might there be advice for them to accept the dismissal and move on, but also advise them they have the right to carry it further. Ms. Jydstrup said the teachers might choose not to request a hearing, at which point they accept the decision of the State Board of Education. She drew attention to the causes for dismissal in the statute, and
noted some are cut and dried, and others are open to interpretation, and can become a contested issue.
Senator Neal asked who proposed the amendment. Ms. Jydstrup replied the amendment is from the Nevada State Education Association. She explained the state department was concerned with the language that the decision of the hearing officer is final and binding, because it took the role of the State Board of Education out of the process. NSEA has no objection allowing the state board to have a role in the process, because they feel the most important part of this legislation is the AAA arbitrator.
Senator Neal inquired if the hearing officer is being removed from the process, to which Ms. Jydstrup replied no. She pointed out the hearing officer is being strengthened, because instead of a hearing officer, it would be a AAA arbitrator.
Senator Neal questioned the purpose of having a review by the state board if there is still an opening for judicial review, pointing out that an additional step has been added to the process. Ms. Jydstrup replied they are not removing the potential to go to court should either party be dissatisfied with the decision.
Senator Neal asked what the court would be reviewing? Ms. Jydstrup advised the senator the court would be reviewing the decision of the hearing officer and the state board. The arbitrator would report his facts and findings of the case to the state board, and the state board would review the findings of the arbitrator, and make the final decision. The licensee or state board could then decide to take it a step further and request judicial review.
Henry Etchemendy, Lobbyist, Nevada Association of School Boards (NASB), stated NASB has only one objection to the bill, but generally stands in favor of the remainder. He reiterated that the Nevada State Education Association is proposing the hearing officer selection be made strictly from AAA and NASB does not feel this is appropriate. AAA members are all from out-of-state, as there are no members from Nevada.
NASB feels it is more important to have an option to choose whether to use a hearing officer, who is a Nevada attorney, or an AAA arbitrator from out-of-state. In their opinion, the AAA arbitrator would not have the true interest of Nevada folks at heart.
Chairman Rawson asked if Nevada has a local arbitration association with local attorneys. Mr. Etchemendy thought he recalled an association, but was not able to find anything in the statutes. He contacted the AAA and inquired if there are any Nevada attorneys on the list and to date has not heard back from them.
Mr. Etchemendy said current law, Nevada Revised Statutes (NRS) 391.3161, states: "There is hereby created a list of hearing officers comprised of residents of this state who are attorneys at law. The state board shall make appointments to the list . . ." Mr. Etchemendy pointed out the attorneys must have certain training in Nevada law with respect to the educational process. The second alternative in the law is that if the superintendent and the employee agree, they may go to the AAA arbitrator.
Mr. Etchemendy mentioned two other options available, as Assembly Bill (A.B.) 223, to be heard later today, amends the two sections outlined above.
ASSEMBLY BILL 223: Revised provision regarding list of hearing officers maintained by state board of education. (BDR 34-770)
A.B. 223 provides that if the list of hearing officers, maintained by the State Department of Education, falls below 10, the AAA list must be used.
The fourth alternative provides, irrespective of all those options, if the superintendent and employee agree, they may mutually select a Nevada attorney to act as the hearing officer. Mr. Etchemendy pointed out if A.B. 223 passes, there will be four alternatives available, which NASB feels are essential, even though suspensions and revocations are rare.
To that end, Mr. Etchemendy outlined NASB's proposed amendments (Exhibit F). He emphasized if binding arbitration is removed from this bill, there must be language which retains the state board's responsibility in revocation of licenses.
NASB's purpose is to provide four alternatives and to conform S.B. 313, so that it is no longer binding fact finding.
Chairman Rawson asked Mr. Etchemendy what were NASB's concerns about using just the AAA arbitrators. In response, Mr. Etchemendy stated NASB's main objection is they are from out-of-state and do not understand Nevadans, or their practices in Nevada.
Chairman Rawson suggested AAA arbitrators could render a dispassionate decision, not clouded by political considerations.
A discussion ensued between Senator Coffin and Mr. Etchemendy whether or not Nevada has AAA members.
Gregory F. Betts, Lobbyist, Rural School Districts of Nevada, spoke in support of the amendments proposed by Mr. Etchemendy. He pointed out his two concerns with S.B. 313, the binding arbitration nature of the decision of the hearing officer, which excluded the State Board of Education, and which appears to have been resolved with the state department and NSEA's compromise. The other issue was the exclusive use of AAA. Mr. Betts would like to see AAA only as an option, if there is a mutual agreement to use them. He emphasized AAA arbitrators come from out-of-state, and generally are more expensive.
Senator Coffin requested a list of the resident Nevada attorneys used as hearing officers.
Chairman Rawson closed the hearing on S.B.313.
The chairman opened the hearing on Assembly Bill (A.B.) 223.
ASSEMBLY BILL 223: Revises provision regarding list of hearing officers maintained by state board of education. (BDR 34-770)
Debbie Cahill, Lobbyist, Nevada State Education Association (NSEA), indicated A.B. 233 is their bill, which refers to the selection of hearing officers as amended in NRS 391.3161, and is linked with S.B. 313. The law currently provides that the list of hearing officers be comprised of attorneys who reside in the state and who have completed a course of instruction in administrative law. Ms. Cahill pointed out there has been a problem maintaining an adequate list of those who have received the training, and too many attorneys on the list are management type attorneys, either counsel for a city or county, which has raised objections. The attorneys are selected in the same manner as AAA arbitrators, and therefore must go through a striking process, which leaves very few names from which to choose.
The original bill draft required the state department to keep at least 25 names on the list, which proved to be unrealistic. There was no guaranty, if the bill was codified, the state department could maintain the list at 25, so the interested parties set about to find a compromise. Discussions were held with Mr. Etchemendy, who stressed the superintendents were anxious to retain language allowing the option to select.
The new language was then crafted that if the number of names on the list were to fall below 10, the parties would go to the AAA list to select a hearing officer. Ms. Cahill pointed out Mr. Etchemendy also submitted language that says, if both parties agree on an attorney who is a resident of the state, they can use that attorney as a hearing officer.
Mr. Etchemendy voiced his support of the bill and urged passage of A.B. 223.
Dr. Paslov testified he felt a reasonable compromise has been reached between the parties, and encouraged the committee to pass A.B. 223.
Chairman Rawson closed the hearing on A.B. 223.
SENATOR GLOMB MOVED TO DO PASS A.B. 223.
SENATOR BROWN SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS O'DONNELL AND TOWNSEND WERE ABSENT FOR THE VOTE.)
* * * * *
Chairman Rawson indicated the committee would address S.B. 313 in the next work session.
Chairman Rawson opened the work session and introduced an amendment to S.B. 60, an amend and do pass, and asked the committee to review to see if it met their expectations.
SENATE BILL 60: Provides for certain assistance to victims of sexual assault regarding exposure to sexually transmitted diseases. (BDR 40-664)
A discussion ensued regarding the potential loss of $300,000 in funding without the passage of this bill.
Chairman Rawson introduced Pepper Sturm, Research Analyst, who had been working with Senator Coffin's subcommittee on concepts regarding the drug free workplace legislation. Mr. Sturm prepared a memo addressing alternatives (Exhibit G) the committee might want to consider. He referred the committee to page 4 (Exhibit G), which presents possible amendments to Assembly Concurrent Resolution (A.C.R.) 20. Mr. Sturm explained that although A.C.R. 20 had been adopted by this committee, it has not been taken to the floor.
ASSEMBLY CONCURRENT RESOLUTION 20: Encourages employers to establish programs to promote employee wellness, physical fitness, and the prevention of disease and accidents.
A discussion ensued regarding Senate Bill (S.B.) 71, which is also drug free workplace legislation, and whether the two should be combined.
SENATE BILL 71: Requires certain entities who receive money from the State to establish a policy to ensure that the workplace is free of illegally used drugs and alcohol.
Some members of the committee felt S.B. 71 might be too intrusive.
Mr. Sturm suggested one approach would be to amend S.B. 71 by adopting requirements utilized in other states. He introduced documents outlining the California and Florida approaches, pages 5 and 6, respectively, of Exhibit G, and reviewed those for the committee.
California does not delineate every little detail of the drug free workplace plan, does not specify penalties, or require notification by employees of their own violations, or those of their coworkers. The amendment also does not specify a detailed list of persons authorized to sign the drug free workplace agreement, as is the case in S.B. 71. It is a less intrusive approach, but still requires any vendor doing business with the state to have a drug free workplace plan. The amendment spells out what that plan includes.
The Florida approach does not require every vendor doing business with the state to have a drug free workplace, but does say if there are two or more bids for the same project, the employer with the drug free workplace plan will get preference in the bidding.
Chairman Rawson indicated he had spoken with Dorothy North, Chairman, Commission on Substance Abuse, Education, Prevention, Enforcement and Treatment, who would like to see a statement on this issue come out of committee. The chairman said his inclination would be to go with S.B. 71, rather than trying to change A.C.R. 20. As to the California or Florida approach, the chairman said he felt the state did not have the agencies to properly enforce either of their plans.
Senator Coffin stated he originally objected to S.B. 71, because of the onerous requirements it puts on employers. When A.C.R. 20 was introduced, he felt it appeared to have appropriate language, which goes directly to all the employers of the state. He referred the committee to language his subcommittee drafted, page 4, (Exhibit G), possible amendments to A.C.R. 20.
Senator Coffin stressed when S.B. 71 was introduced in the assembly last session, it was killed, and thus he felt it would probably not stand a chance this session.
Chairman Rawson suggested the committee incorporate language prepared by Senator Coffin, page 4, (Exhibit G) into S.B. 71, in the form of a bill or resolution, which in essence does the same thing as A.C.R. 20.
Senator Brown stated S.B. 71 is a more powerful bill, and although it did not pass last time, it might go through this session. She felt the bill needs to address setting up a rehabilitation program, and the issue of discipline, should the agreement between the state and employer be broken.
A discussion ensued among the committee members regarding the concepts found in the California approach versus the Florida approach.
Senator Coffin pointed out S.B. 71 will affect every employer in the state. Chairman Rawson suggested keeping the first five lines of S.B. 71, and making changes to the rest of the bill with things they agree to, such as, develop a plan for drug free workplace, give bid preference to those companies with an approved plan in place, etc. He stated he would like to give Dorothy North a statement which would allow for some education in the workplace.
Senator Neal stated he was more prone to adopt the California approach, which in essence encompasses the same concept as the Florida approach.
Senator Coffin reiterated his concern with the language and stated it was his hope to encourage people in a positive way to maintain a drug free workplace.
Senator Neal emphasized many employers already have a policy regarding a drug free workplace and require drug testing as a requirement for employment. If an employee has a problem, the employer makes drug or alcohol counseling available.
Senator Brown pointed out the employer's need for a statement which informs the employee about their policies, outlining the available rehabilitation or counseling available, or penalties imposed should that policy be violated.
Chairman Rawson asked the committee for a show of hands of how many committee members would support using language from the California approach, and adding an additional alcohol abuse clause.
A discussion ensued wherein Senator Coffin once again expressed concern with the language, as it puts the burden for social policy on the employer, which falls on the employee. He pointed out he would vote "no" and reserve the right to change his vote on the floor.
SENATOR NEAL MOVED TO AMEND AND DO PASS S.B. 71, INCORPORATING THE CALIFORNIA PROPOSAL, PAGE 5 OF EXHIBIT G, WITH ADDITIONAL LANGUAGE ADDRESSING THE CONCEPT OF ALCOHOL ABUSE.
SENATOR GLOMB SECONDED THE MOTION.
The chairman called for discussion and Senator Brown questioned what penalties the employer would be facing should they not set up a policy or program. Chairman Rawson noted he would accept an amendment regarding that issue.
THE MOTION CARRIED. (SENATOR COFFIN VOTED NO. SENATORS O'DONNELL AND TOWNSEND WERE ABSENT FOR THE VOTE.)
* * * * *
SENATOR BROWN MOVED TO ADD A PENALTY CLAUSE FOR FAILURE TO ABIDE BY THE AGREEMENT.
The committee discussed how to address implementing the suggested amendment.
SENATOR BROWN WITHDREW HER MOTION.
* * * * *
SENATOR NEAL MOVED TO AMEND A.C.R. 20, WITH THE DESCRIPTIVE LANGUAGE SET OUT ON PAGE 4 OF EXHIBIT G.
SENATOR COFFIN SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS O'DONNELL AND TOWNSEND WERE ABSENT FOR THE VOTE.)
* * * * *
Chairman Rawson presented an amendment for S.B. 354.
SENATE BILL 354: Prohibits corporal punishment in public schools. (BDR 34-1572)
Pepper Sturm, Research Analyst, stated Henry Etchemendy, Nevada Association of School Boards (NASB) proposed that a definition of corporal punishment might be useful to the bill, and cited his definition, taken from the National Association of School Psychologists. At the previous hearing on this bill, the members of the committee discussed the lack of a statutory definition of corporal punishment, and whether a teacher would be permitted under the bill to use physical force to break up a fight. Senator Mark James indicated he would not be opposed to an amendment to clarify that teachers could intervene in these situations to maintain order.
The definition by the National Association of School Psychologists addresses that issue (Exhibit H). Corporal punishment is defined as the intentional infliction of physical pain, physical restraint, and/or other discomfort upon a student as a disciplinary technique. Corporal punishment does not include use of reasonable and necessary physical force to: (a) quell a disturbance that threatens physical injury to any person or destruction of property; obtain possession of a weapon or other dangerous objects within a pupil's control; and (c) for the purpose of self-defense or the defense of others.
Chairman Rawson pointed out he is uncomfortable with the language, "other discomfort . . ." and suggested deleting that language, or adding "other physical discomfort." There was general discussion and it was agreed to strike the language "and/or other discomfort" from the definition of corporal punishment.
SENATOR NEAL MOVED TO AMEND S.B. 354 WITH THE PROPOSED AMENDMENT OFFERED BY HENRY ETCHEMENDY (EXHIBIT H), AND STRIKE "AND/OR OTHER DISCOMFORT."
SENATOR GLOMB SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS O'DONNELL AND TOWNSEND WERE ABSENT FOR THE VOTE.)
* * * * *
Senator Coffin expressed concern about the permanent repeal of corporal punishment, which has been on the books for 80 years, and suggested an amendment which would allow the parents to instruct a school official not to administer corporal punishment.
Chairman Rawson pointed out the other side of the issue in that teachers do not want to take on the role of administering corporal punishment. Senator Brown remarked that even the administrators get some of the same training as teachers, the appropriate reward and punishment theory. Research indicates physical punishment it is not effective. It has been shown there is a greater effectiveness from reward and praise than punishment after an act.
SENATOR GLOMB MOVED TO AMEND AND DO PASS S.B. 354.
SENATOR BROWN SECONDED THE MOTION.
During discussion, Senator Brown reiterated her feeling that this bill should apply to private, as well as public schools.
THE MOTION CARRIED. (SENATOR COFFIN VOTED NO. SENATORS O'DONNELL AND TOWNSEND WERE ABSENT FOR THE VOTE.)
* * * * *
There being no further business, the chairman adjourned the meeting at 3:50 p.m.
RESPECTFULLY SUBMITTED:
Susan Henson,
Committee Secretary
APPROVED BY:
Senator Raymond D. Rawson, Chairman
DATE:
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Senate Committee on Human Resources and Facilities
April 28, 1993
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