MINUTES OF THE
SENATE COMMITTEE ON HUMAN RESOURCES AND FACILITIES
Sixty-seventh Session
May 17, 1993
The Senate Committee on Human Resources and Facilities was called to order by Vice Chairman William R. O'Donnell, at 1:40 p.m., on Monday, May 17, 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 Randolph J. Townsend
Senator Joseph M. Neal, Jr.
Senator Bob Coffin
Senator Diana M. Glomb
Senator Lori L. Brown
STAFF MEMBERS PRESENT:
Judy Alexander, Committee Secretary
Pepper Sturm, Research Analyst
OTHERS PRESENT:
Debbie Cahill, Lobbyist, Nevada State Education Association
Henry Etchemendy, Lobbyist, Nevada Association of School Boards
Robert J. Gagnier, Lobbyist, State of Nevada Employees Association
Nora Ann McCoy, Legal Counsel
Carolyne Edwards, Lobbyist, Clark County School District
Lindsey Jydstrup, Lobbyist, Nevada State Education Association
Mike Johaneson, Lobbyist, Service Employees International Union
John Drew, Deputy Chief, Division of Investigation, Department of Motor Vehicles and Public Safety, State of Nevada
Nile D. Carson, Jr., Deputy Chief, Police Department, City of Reno
Tom Koche, Owner, Carson Security Systems
Donald F. Klasic, General Counsel, Office of the Chancellor, University of Nevada System
Dr. Lori L. Temple, Associate Professor, Department of Psychology, University of Nevada, Las Vegas
Tom Benham, Private Investigator, Benham & Bright LTD
Frank A. Barker, Lobbyist, Las Vegas Metropolitan Police Department
James T. Richardson, Lobbyist, Nevada Faculty Alliance-Department of Sociology
Martin Stibers, Private Investigator
Duke Piper, Gold Coast Agency, Inc., Nevada Investigators Association
Noel S. Waters, District Attorney, Carson City District Attorney's Office
Vice-Chairman O'Donnell opened the hearing on Assembly Bill (A.B.) 454.
ASSEMBLY BILL 454: Revises provision governing credit for school teacher's previous service in determining salary of teacher.
Debbie Cahill, Lobbyist, Nevada State Education Association (NSEA) explained, A.B. 454 is sponsored by NSEA in an attempt to correct a situation that occurred in 1991. Nevada Revised Statutes (NRS) 391.160 was amended in the 1991 session, to say that a teacher who transfers from one school district to another in Nevada, would be placed on the same step of the salary schedule. The language of the 1991 amendment does not speak directly to monetary amounts. Unfortunately, the interpretation that some of the districts chose to take with the language, created a problem. A.B. 454 removes that language and puts in very specific language to clarify, that when a teacher transfers, it would include any previous, out-of-state service they may have. She stated, A.B. 454 did not have opposition in the assembly and she encouraged the support of the committee.
Vice-Chairman O'Donnell expressed concern to Ms. Cahill that A.B. 454 appears to be a reiteration of existing language and he said he could not see where is the change. Ms. Cahill referred to line 6 and stated, some of the districts chose to interpret this to mean, they would not be required to give credit for any out-of-state service. She pointed out, there is also a reference to "given for the same kind of service," which one school district chose to disallow several years of coaching on a teachers record, which resulted in dropping the teacher on the salary scale. She explained, the attorney for NSEA drafted language that is very specific and clarifies exactly what they hope will happen. The language also goes on to say what a district is not required to do. An example of that is, a district would not have to match a higher salary on a step or salary scale than is in their salary schedule, but to just meet the same step. She gave to the committee the Teachers Salary Schedule for Year 1989-90 (Exhibit C).
Henry Etchemendy, Lobbyist, Nevada Association of School Boards (NASB) explained A.B. 454 is strictly clarification. He explained NASB opposed the enactment of the law, at the last session and stated, this clarifies what the law is intended to do. He stated, NASB did not oppose A.B. 454 in the assembly and would not oppose the bill in the senate, as it is written now.
Vice-Chairman O'Donnell noted A.B. 454 becomes effective July 1, 1993 and asked, is that because the contract beginning date is after July 1st. Mr. Etchemendy answered yes, that was what he understood.
Vice-Chairman O'Donnell closed the hearing on A.B. 454.
Vice-Chairman O'Donnell opened the hearing on Senate Bill (S.B.) 447.
SENATE BILL 447: Prohibits under certain circumstances surveillance on grounds of public school or state facility or on campus of University of Nevada System.
Senator Bob Coffin, Senate District 3, Clark County, presented to the committee S.B. 447, which proposes to do one thing in three different sections of the law. He explained, the bill proposes to prohibit, except in certain circumstances, audio and video surveillance on the grounds of public schools, the university system and in public buildings in general, without the knowledge of the persons being observed. Unless that covert observation is part of a criminal investigation and the court has issued a probable cause order or if it is necessary as a system of security, intended to protect people in those buildings. He explained, the genesis of this bill goes back about a year and a half, when an incident occurred on the University of Nevada, Las Vegas (UNLV) campus, when reportedly, a class on basketball was videotaped covertly through the rafters of the gymnasium ceiling, without the knowledge of the professor or students involved. In his opinion, covert surveillance of any kind, on a university campus, is a violation of academic freedom. He noted, as technology improves, as disputes occur, the temptation to use technology sometimes exceeds the ethics by which an organization is bound. Six months after this incident, he requested a bill draft for this legislation. In the interim period of time, the university Board of Regents passed a policy forbidding covert surveillance, except in criminal circumstances, and then only under the authorization of a president of the campus. Also, at the same time, the university regents and others, including members of the legislative commission were investigating, this and other incidents on the campus. After he heard that the university system had passed the policy, he decided to let the bill lay. A month ago, he received a letter from the state employees, reporting that unknown, unauthorized or at least, covert surveillance had taken place on state employees, in an area where you would be protecting the safety of the workers, clients or the taxpayers. No indication was given that there was a criminal action for which they could have sought permission to do videotaping. The letter from the State of Nevada Employees Association (SNEA) was a plea for help. He explained that he called the SNEA and advised them they did have a vehicle to which they could address their grievance in a public hearing. He offered the use of his bill draft and expanded his original bill with language, to include solutions to cover the problem. He pointed out, the situation that has developed, indicates a distrust of our public employees and with this vehicle, the legislature can also address the question of academic freedom.
Senator Coffin presented to the committee a document, The University at Odds with Itself: Furtive Surveillance on Campus (Exhibit D). He stated, this is an excerpt from Academe, Journal of the American Association of University Professors, March-April 1983, which is about a report from the academic freedom committee, which met to draft a policy that the Association of University Professors (AAUP) could get behind. This was in response to a member professor being ostensibly caught, giving a test to a student in advance, in which the student scored 100 points. The committee took this up and claimed the administration's actions were based on a videotape made from a hidden camera. The point was, it was disputable in that case, whether or not the professor had given the answers to the test to the student. The university professors strove for a policy that could exist on campuses around the country. Four or five criteria were looked at in studying the case from 1982, and Exhibit D shows five particular questions that would be asked, if this were being investigated. The AAUP recommended 10 years ago, that academic institutions foreswear the advantages of covert surveillance and not themselves seek to spy upon anyone within that community. In his opinion, the purpose of section 2 in the bill, needs to be put into statute, to firm it up.
Senator Coffin addressed the case of hidden cameras at the Nevada Department of Transportation (NDOT) (Exhibit E), and asked the State of Nevada Employees Association to explain to the committee, how that happened. In his opinion, this enforces the abuse of technology that is at our disposal, without thinking. The language in this bill is carefully drafted, to indicate, that without the knowledge of the person being observed, the surveillance cannot take place, with the exception of criminal investigation. He stated, there are friendly amendments that will be offered and he would be willing to listen to testimony of any kind to make the bill better. His closing comments were that the protection of workers in the work place, whether it be state buildings or schools, is important, and the free thinking and free expression of thought on our campuses is very important. He added, anything that chills that, retards our society and deprives our students of a proper education.
Vice-Chairman O'Donnell clarified by saying, it is not your intent to obscure or to conceal any illegal or unethical act, it is your intent with this bill, to make sure that people's privacy and the rights of individuals in the work place, are kept intact. He asked, is that correct. Senator Coffin answered, that is right, and added that a lot of good can be done with video surveillance, with the knowledge of people being observed. Instructors of all kinds can improve their work and be made more competent. The idea that video surveillance is around can help the security of employees and the public. He explained, it is just a question of having the knowledge that you are being watched or listened to, that makes a difference in a situation.
Upon the arrival of Chairman Rawson, Vice Chairman O'Donnell turned the meeting over to him.
Senator Townsend advised Senator Coffin, there is an amendment from the Clark County School District, which would broaden the definition of school property or grounds, to district property or the security of that property and asked, is that acceptable. Senator Coffin responded, that is a friendly amendment and stated that a representative of the Clark County School District would testify to that.
Robert J. Gagnier, Lobbyist, Executive Director, State of Nevada Employees Association, introduced Nora Ann McCoy, Legal Counsel for the state employees, and advised she would address some of the legal issues in S.B. 447. Mr. Gagnier pointed out to the committee, the bill was rewritten to clarify and address the ability for the person in charge of a state building or leased building, to have surveillance cameras that are used as part of a security system, that are public knowledge. He stressed, the bill must be worded the way it is, because if someone comes into the building, who is not aware that surveillance cameras are there, it could be said they did not know the cameras were there, and therefore, it is not legal. They have tried to address that on page 2, lines 3 and 4, and is also in all of the other sections, to assure that the security systems, which are in place in the state buildings, can remain in effect. He advised the committee, the State of Nevada Employees Association is opposed to the secret surveillance cameras that the employees are not aware of, until they are exposed.
Ms. McCoy explained that if challenged, the type of video surveillance that was seen in the break room of the NDOT is probably not legal, and a convoluted argument. She explained, in a criminal investigation context, there are both federal statutes and state statutes, which prohibit certain types of interception of electronic communication, such as wire tapping. There is a federal statute, the Electronic Communications Privacy Act of 1986, which congress enacted which puts very complicated procedural safeguards on the use of wire tapping equipment and electronic communications, both in foreign intelligence and in domestic intelligence, by local law enforcement agencies. Their own circuit, the Ninth Circuit, U.S. Court of Appeals, has held that that act, while it does not specifically mention video surveillance, was intended to include it, and they have extended its coverage into the area of video surveillance. Their communication with the Attorney General's Office on this particular incident, has been that it does not violate Nevada's wire tapping laws, because no oral communication was intercepted. She commented, when you have someone on video tape speaking, whether you are actually hearing their voice or not, you are intercepting some communication. Furthermore, in the same context, the Ninth Circuit, U.S. Court of Appeals recognizes that secretly televising people, while they are in what they think is a private place, is an even greater intrusion on privacy, than secretly recording their conversations. She stressed, these are in a criminal investigation context and it is talking about what has been described to them, as an investigation of possible or perceived wrongdoing. They have not been provided information, to know whether that had to do with the job wrong-doing or some other kind of wrong-doing. She added, in that context, the U.S. Supreme Court has said that a search and or seizure of a government employees offices and effects in the workplace are not subjected to the same scrutiny as the fourth amendment's protection against unreasonable search and seizure. They are subject to the fourth amendment, but the standard is somewhat less than in a criminal context. In that standard, the U.S. Supreme Court has said, an investigation for work related misconduct is subjected to a reasonable standard. The search must be justified at its inception, by a reasonable suspicion of work-related misconduct, and it must be reasonably related in scope to the circumstances justifying the search. A search is permissible in scope, when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the nature of the misconduct. She shared with the committee a passage from George Orwell's 1984. In describing Oceana, where the constant eavesdropping was oppressive, but probably not even as oppressive as the two way tela-screens that were everywhere, George Orwell wrote,"There was of course no way of knowing whether you were being watched at any given moment. It was even conceivable that they watched everybody all the time. You had to live, did live from habit that became instinct, in the assumption that every sound you made was overheard and every movement scrutinized." She commented, it defies logic to consider any suspicion of work-related misconduct, that would allow the scope of that type of intrusion, of a hidden camera spying on the employees wherever they are, without their knowledge, even in their break room.
Mr. Gagnier added, there are several things the State of Nevada Employees Association think are important. A provision was put in, so if there is suspected criminal wrongdoing, an agency can go to a court of competent jurisdiction and upon demonstrating probable cause, they can get an order and have a surveillance camera installed. He stated, they have no objection with that, as long as a court says there is probable cause. They were not willing to accept an administrator's statement, that he believes he has probable cause. Finally, it has never been put in writing, but implied, that one of the reasons for the surveillance camera, in the case they are talking about, was that there might possibly be some drug involvement. He stated, this legislature, at the request of the State of Nevada Employees Association, spent a considerable amount of time 2 years ago, developing a drug testing policy for state employees, if there is a suspected drug use. To his knowledge, no attempt was made to use that policy in this particular situation.
Chairman Rawson stated for clarification, there are a number of places where television cameras or microphones are used in class rooms. In the developmental disabilities program, day-care, child-care and more sophisticated programs instructors are taught to work with children that have some type of handicapping situation. He explained, in these teaching situations, filming is done in the classroom through one-way mirrors, and is used in teaching and consulting with parents. He asked, since this is done with permission or knowledge, would that be okay. He added, there are psychology classes, that do experiments of filming classes without being observed, speech classes, developmental disabilities child care and asked, can those activities still be done, or do is language needed to allow those kinds of things.
Senator Coffin responded to Chairman Rawson and stated, perhaps the educators who were present to testify on behalf of the bill, can explain how they would cope with that. He stated that generally, releases should be required from teachers and or subjects of investigation. He stated, he would not want to think children are studied without at least having some knowledge on part of their parents, that they are being videotaped. Chairman Rawson advised Senator Coffin, he thought parents are involved in the process because the program teaches the parents.
Chairman Rawson stated, it was his impression that this bill is supposed to stop surreptitious surveillance, to stop a person from incriminating themselves, without being advised of rights. He added, it is not trying to stop or get at the issue of legitimate purposes, teaching purposes and so on.
Senator Coffin responded to Chairman Rawson, and stated the way it is written, it could not be used to stop a person from incriminating themselves, if they in fact are thought to be committing a crime, because they do not have that right to prevent themselves from being watched, if a court has ordered that they can be observed, with a due process.
Mr. Gagnier stated that from their standpoint, the surreptitious use of surveillance cameras is only illegal, if it is done without the knowledge of the person being videotaped. The use of visible video cameras, for security purposes, is not illegal because it can be seen.
Senator Glomb asked Senator Coffin, in terms of it being unlawful, the bill does not spell out, is this a crime and if so, what crime. Senator Coffin explained, the penalty is not mentioned and he did not know what the general penalty is for this particular part of the statutes. Senator Glomb asked Ms McCoy what the penalty is. Ms. McCoy responded, she read in the case law, if something like this is passed that says it is illegal, then any government official who does engage in such activity, is considered outside the course and scope of his employment and he personally can be subjected to all appropriate civil and criminal penalties.
Ms. McCoy responded to a question by Chairman Rawson and explained the bill does say those who are subjected to electronic surveillance without their knowledge. She explained, her opinion would be that when talking about people who are in a specific program, such as in a developmentally disabled program or certain types of learning situations, she believed that merely getting their consent on entry into the program would be sufficient and would not require further consent at the time the videotaping was being done. Chairman Rawson stated that a school system, campus or university system might add that as a disclaimer for anyone who was signing up. Ms. McCoy responded, she believed so, yes.
Carolyne Edwards, Lobbyist, Clark County School District, presented to the committee the friendly amendment (Exhibit F) referred to by Senator Coffin. She explained, their intent in being at the hearing was to make sure they are covered totally under the bill. The wording, the grounds of the school, and the "district property or the security of that property" would best serve the needs of this bill. Their intent was to show above all, they have no intention ever of using any of their surveillance equipment for anything other than the security of the students and personnel.
Chairman Rawson noted, what if an issue came before them where it was defined more broadly than the school district property. His concern is that if there may be a game, dance or some activity that would be off school district property. He suggested this should be broadened out to indicate, wherever students are involved. Ms. Edwards responded that is a good point and noted the lawyers seemed happy with the school district property, but under those circumstances, it is correct, the district did broaden it with, wherever students are present. She added, that would be very acceptable.
Lindsey Jydstrup, Lobbyist, Nevada State Education Association (NSEA), testified they are in support of the bill's intent to prevent surreptitious surveillance and added, she believed that the key to this bill is the term surreptitious, where people are video recording or listening in through audio means, on someone without their prior knowledge. She stated, NSEA would be happy to work with any examples that might come up and added the key words here are, without prior knowledge.
Chairman Rawson handed the gavel to the Vice-Chairman O'Donnell.
Mike Johaneson, Lobbyist, Service Employees International Union, testified in support of S.B. 447. He stated, they asked Assemblywoman Christina R. Giunchigliani for a bill draft, which is still in bill draft form. The bill draft and S.B. 447 are almost identical and serve the same purpose. He stated, they believe the bill is necessary, based upon the occurrence of the incident at NDOT which showed there was confusion on the proper use of surveillance. This bill resolves that confusion, allows both parties to be aware of what is being done and in the case of criminal wrongdoing, every opportunity is there for surveillance. He remarked, they are wholeheartedly behind this bill.
Vice Chairman O'Donnell stated, this is a very sensitive subject and he did not want to put anybody under oath, or swear in anyone. He reminded the individuals who were going to testify in this hearing, that whatever they do say is to be interpreted as the truth and any misrepresentation can be construed as a misrepresentation of the facts, and they would be guilty of a misdemeanor per NRS 218.535. He explained, he wanted to let the committee know, that is a law and that in fact, it is implied, those testifying are under oath, when they come up to testify for or against this bill.
John Drew, Deputy Chief, Division of Investigation, Department of Motor Vehicles and Public Safety, State of Nevada, stated one of their primary functions is the enforcement of the narcotic statute in the state of Nevada. As part of that function, they do surveillance on a daily basis and it is not uncommon to use both audio and video surveillance, in the performance of these duties. They find that it would be extremely cumbersome to be able to carry out their duties, the way the statute is written. It requires that a court order has to be issued before any video surveillance is done. He explained, if they are working with an undercover officer, even on a university campus, it is not uncommon to video tape that narcotic transaction, because that is good court evidence, that a crime took place and that the individual is the one that committed the crime. Under this scenario, they would have to obtain a court order. He explained, when police are dealing with a narcotics violator, they may not know at the beginning of that investigation, where it is actually going. They may be asked by the person selling the narcotics, to follow them to another location, and if this person pulled into any of these properties listed in the bill, the investigators would have to terminate the investigation at that point. He stated this may apply to any law enforcement agency that would use video cameras in patrol cars.
Senator Glomb asked for clarification, when wire tapping or video taping can be done. Mr. Drew responded, the guidelines his department works under are the U.S. Supreme Court decisions. He explained, as long as it is a common public access area and that there is a one party consent, that is that of the undercover officer, this type of surveillance is allowed, without a court order. He further explained, a parking lot, hotel room, and even the front door of the home of the suspect, are considered to be common public access areas. He noted, a court order would be needed for a extended surveillance of the backyard.
Senator Neal asked what authority would an officer have, to do a camera surveillance of anyone, other than for security purposes. Mr. Drew referred to the surveillance of a narcotic investigation and explained, the video taping of a narcotics transaction or sale, is a good piece of evidence to show the individual was involved in the transaction. He further explained a situation involving the surveillance of a marijuana field, in which they would establish a video surveillance of that area, for as long as it takes, to attempt to identify the people that were responsible for that field.
Vice-Chairman O'Donnell explained, Senator Neal was trying get to probable cause, that an infraction or crime is being committed, or is about to be committed. This bill goes a little bit farther and says there must be probable cause and the court order. He asked Mr. Drew, is that what you are trying to address, the extension of that probable cause, which takes it out of the realm of the law enforcement agency and places it into the court system. Mr. Drew responded, that is correct and is their biggest concern.
Senator Brown pointed out, in constitutional law, there are different standards for when something could be done without a court order, based on evidence. She asked Mr. Drew if he had worked with the people who are working on this bill, to craft an exception to address the situation he would encounter, where there is something in progress. Mr. Drew explained, he did not know of the existence of this bill until last week, when the director gave the bill to him. Senator Brown asked Mr. Drew, did he see an exception that would follow the U.S. Constitutional cases for what requires a warrant and what is an imminent danger. She stated, he appeared to be talking about a long term type of surveillance, and asked, why couldn't a warrant be obtained for a long term investigation. Mr. Drew responded, if investigators are dealing with a common public access area, the U.S. Supreme Court has ruled that a court order is not needed. Therefore, there is no expectation of privacy, that would be protected under the fourth amendment. Senator Brown asked, if the legislature imposes a stricter standard, investigators could still get a court order. Mr. Drew responded, "yes they could, but if you do that, you would have to create some type of exigent circumstances, for those criminal investigations in which you do not know if you are going to end up on school property or state property ahead of time, and no longer have the time or the ability to obtain that court order."
Senator Coffin stated that he would like to work with Mr. Drew, if he could provide some amending language that would take care of this particular circumstance. He added, that would also apply to any other law enforcement people at the hearing. Mr. Drew responded, yes sir.
Vice-Chairman O'Donnell explained, that Senator Coffin, the author of the bill, invited amendments to the bill, to allow the police departments to feel comfortable with the surveillance provisions of the bill.
Nile D. Carson, Jr. Deputy Chief, Police Department, City of Reno, explained he had one additional concern. He explained, this bill is asking legislators to legislate, to stay away from poor personnel practices that are improper. He stated, the labor group representatives of this state are saying, make the supervisors do what is right. He commented, the legislature should not have to write a law, because someone said they just wanted to see what was going on.
Tom Koche, Owner, Carson Security Systems, stated, 68 percent of all shrinkage (stealing) in private enterprise was internal. Private industry is allowed to reduce that shrinkage by the use of surveillance cameras, in the open and concealed. He stated, the taxpayer should not grant state employees an exemption, nor should officials think state employees are so different in regard to internal shrinkage. In his opinion, what needed to be addressed was the vehicle with which the state would watch itself. He explained, in his involvement with the State of Nevada, video surveillance has always started at the supervisor level, gone on to the director of the department and in some instances, to the Attorney General's Office. He explained this was not something that could be indiscriminately permitted by a supervisor. In his opinion, the government must answer to the people and they must be allowed the same visual observation that any citizen of this country is allowed. He pointed out, there are criminal laws and federal wiretap laws that provide for the obtaining of a search warrant and other legal documents, when an investigation gets to the point the investigator feels there has been a violation of state or federal statute. He stated, legislators need to look more at the administrative level of authorization, that they want to allow, rather than the total exclusion that is seen in this bill.
Senator Glomb asked, you do not think one needs to have probable cause in order to be spying on employees. Mr. Koche responded, remove the word spying, because it is defined as a visual observation and people can theoretically be spied on in their residence through an open window. He added, the Supreme Court has ruled that the visual senses, our six senses, do not violate in a legal search or seizure from that standpoint. What can be seen, tasted, or heard, is not a violation.
Mr. Koche responded to Senator Coffin and suggested that a sign be posted in all state buildings that would say, this building is subject to video surveillance. Senator Coffin replied, that is a good suggestion. Mr. Koche stated he was looking at the rights of the people to expect the State of Nevada and its employees to be answerable. Senator Coffin explained the intent of the bill is not to create a special class of thieves.
Senator Neal asked Mr. Koche, if he was ever employed by any government agency of Nevada to do surveillance on employees. Mr. Koche answered, in the affirmative. He explained in every instance that he participated, he worked with the deputy attorney general for that agency and department and with the knowledge of the director of that department.
Senator Brown expressed to Mr. Koche, he may have a point that employers can do this, and perhaps the legislators should look at making this broader. She referred to a personal experience as an employee of the school district, stating she was never aware that the only place that she could have privacy was a bathroom. She asked, how do you deal with the over-broadness. Mr. Koche responded, the only way officials can deal with that type of broadness, is to put the responsible party for permitting any surveillance on one of the highest levels in government or in private industry. He stated, he felt video surveillance is necessary for the protection of property and the public.
Donald F. Klasic, General Counsel, Office of the Chancellor, University of Nevada System, gave a copy of the Covert Video Surveillance (Exhibit G) to the committee, which had been put together by the university, following the incidence alluded to earlier by Senator Coffin. He recommended that the university be amended out of this bill, pursuant to this policy. He stated that Senator Coffin pointed out, the initial purpose of the bill is to prohibit audio and video surveillance. He stressed, unfortunately the bill goes a lot further. On line 12, the bill states it is unlawful for a person to engage in any kind of surveillance. He referred to the testimony of the police officer of the state and emphasized, surveillance would include not only audio and video, but also eyeball surveillance. He stated he would like to take up Senator Coffin's offer, in terms of preparing amendments on this bill. He requested the police officers, who were present, to leave their business cards so they could work with Senator Coffin.
Mr. Klasic stated, another problem they have with the bill, concerns lines 17 and 18 and pointed out, it states it is unlawful to engage in any kind of surveillance, unless the surveillance is necessary as part of a system of security used to protect and ensure the safety of persons on a campus. He explained, they have video cameras in the computer section on their campuses, because of a concern for property damage, and they would like to see the word property put in. He pointed out, there were some questions, concerning academic affairs, and said there is a exception for legitimate use of video taping for academic purposes.
Dr. Lori L. Temple, Associate Professor, Department of Psychology, University of Nevada, Las Vegas, explained she was chair of the committee that put this policy together for the Board of Regents. She was also chair for the Faculty Senate at UNLV, when they had a problem on campus and as a result of that, this policy was put together with the Board of Regents' approval. She explained, there are several uses of video taping on the academic campus, both in the classroom and in the research labs. She explained 99 percent of the video taping in the preschool at the university, is done with the permission of either the parents of the children, the research subjects that are involved or the students in the classroom. Often, video taping is done behind two-way mirrors, but people know that they are being video taped. She commented, there are however, occasions for research purposes, when group activities or counseling sessions are taped unobtrusively. The subjects do not know they are being taped, until after the fact. She explained, these situations are very rare and are always approved by the university's research board, which approves the use of human subjects. She pointed out, this policy would prohibit that from happening, even though there are federal and professional guidelines that protect the subjects and the people doing the research. She stated, she would like to see the university excluded from the bill. The university has their own policy and do have professional and academic policies in place. If not, she offered to work with Senator Coffin on appropriate language, that would allow them to use unobtrusive video taping under those circumstances.
Senator Coffin asked Dr. Temple if she was chair of the Faculty Senate when the incident occurred and what was the position of the Faculty Senate, at that time, on the issue. Dr. Temple responded, yes she was, and the position was, there should not be video taping of classrooms. She stated, the university needed a policy that would allow the use of legitimate video taping in labs and classrooms.
Senator Coffin asked, were there any other policies about video or audio surveillance, at the university, in existence before that time. Dr. Temple answered there was not a policy at the university. At the time the policy was being put together, the committee was only able to find two other universities in the country, that had any kind of policy about video surveillance. Senator Coffin asked Dr. Temple, was she aware the AAUP had taken a position against this kind of surveillance on campus 10 years ago. Dr. Temple responded, yes and the committee followed the AAUP guidelines, to put this policy together. It has been in place 1 year, during which time there have been no problems on the campus.
Senator Coffin asked Mr. Klasic, did he know about the video taping of the class on the UNLV campus, in advance of the October, 1991 incident. Mr. Klasic responded, he did not know, and explained his assistant Mr. Bradley Book was aware of the video taping. Mr. Klasic remarked, the video taping took place in a public area and the law indicates that can be done in a public area.
Senator O'Donnell asked Mr. Klasic, when was this policy instituted. Mr. Klasic responded, June of 1992 and explained, there was no policy prior to this time. He reminded the committee, they will be happy
to work to amend the bill, to take care of all of these particular problems.
Tom Benham, Private Investigator, Benham & Bright, declared he had problems with the language of the bill, especially with the wording, any kind of surveillance. He explained, approximately 50 percent of his business was surveillance for workers compensation, insurance and employee dishonesty. He stated, this bill would kill 50 percent of the private investigation industry.
Vice-Chairman O'Donnell clarified, this bill only deals with the university, schools and public buildings. Mr. Benham responded, if that is true, his business would only be slightly affected. He stated, if the bill is broad and goes out into their area, it would hurt them badly.
Senator Brown asked Mr. Benham, is there a way for a private investigator to get court approval for surveillance, when there is probable cause. Mr. Benham responded no, and explained, an attorney would have to obtain the court order.
Frank A. Barker, Lobbyist, Las Vegas Metropolitan Police Department,
said he wanted to go on record, that he will provide to Senator Coffin or other members of the committee, any recommendations. He stated, he understands what this bill is to accomplish, but it inadvertently would prohibit law enforcement from conducting surveillance, once they reached one of the types of properties described in the bill.
James T. Richardson, Lobbyist, Nevada Faculty Alliance-Department of Sociology, pointed out the alliance is the state affiliate of the American Association of University Professors, to which Senator Coffin referred to in his opening remarks. He stated, he has some conflict about the bill. Because of his academic interest, he noticed the war on drugs has had a remarkable impact on all of the first 10 amendments of the constitution, that are called the Bill of Rights. All of them have been substantially undercut and changed as a result of the war on drugs. The growth of surveillance and technology in that area have made this easier to do. He pointed out, when this incident occurred at UNLV, there was considerable interest around the state and the country. A number of faculty became interested in the AAUP's stand on the 1983 incident and a ground swell of interest resulted. He explained, the policy that Mr. Klasic gave to the committee (Exhibit G) was reviewed by many people around this system. That policy represents the best that could be presented at this time that seems to speak to the concerns that were voiced in the 1983 AAUP statement. Also, it seems to protect to the notion of some autonomy of the university system, which is a constitutional issue and seems to protect and demonstrate the involvement of faculty in governments of the universities and community colleges in this state. He urged the committee to amend the university and community college system out of the bill. He suggested to approve a version of the bill that would address some of the problems that have occurred, and treat it as somewhat of a experiment. Allow the university to use their policy for the next 2 years and see if it will work.
Senator Coffin asked Dr. Richardson if he supported covert audio surveillance of a classroom. Dr. Richardson responded, no. Senator Coffin asked, why do you ask that this be amended. Dr. Richardson explained, the university dealt with the problem that arose, involving video and they have had no problem, that he was aware of, with audio recording.
Dr Richardson responded to a question by Senator Coffin and explained why he suggested to wait. He believes in the faculty being involved in governance and that he does husband the autonomy of the Board of Regents. The regents were responsive to the concerns in this instance.
Senator Coffin asked Dr. Richardson, why did the group not press to put into the university policy, opposition to audio surveillance.
Dr. Richardson explained, because that had not been a problem on the university or community college campus, of which he was aware.
Vice-Chairman O'Donnell asked Dr. Richardson, when he said there had not been a problem, did that mean that audio or video surveillance had occurred and no substance was found. Dr. Richardson explained, he was saying that no faculty member had raised it with an alliance chapter or with the Faculty Senate. He commented, if the concern has not been raised, why does the legislature want to write a law about something no one shows concern about.
Senator Coffin stated, the representative of the Board of Regents has stated that he feels the university system is autonomous. Therefore, it is not likely that he or his successors are going to pay attention to what the legislature has to say about audio, unless some unfortunate incident occurs.
Martin Stibers, Private Investigator, explained there are two areas of concern with S.B. 447. One is the exclusion of civil law that is being written out of the bill. He explained, 70 percent of their business was in civil litigation, primarily personal injury and workmans' compensation. A lot of problems he has encountered in surveillance has led on to campuses, as well as on to public lands and state properties. People who are involved in personal injury claims may be state employees, and would have to be surveilled to and from work, and in other situations that it would become a hinderance to the investigator to try to conduct an adequate surveillance. The State Industrial Insurance System (SIIS) for workmans' compensation mandates the investigator to provide them with video surveillance of people who have been found working or violating the parameters of their disability. He expressed concern with S.B. 447, because it implies there is no fiscal impact to the state. He noted, many of the state properties are in common use areas of other buildings within the state, such as SIIS building in Reno. He asked, how would an individual know what area is state controlled, verses what is public or private domain. In his opinion, if this bill is passed to apply to the state properties, it would have to be the burden on the state to notify not only the public, but the private industry and law enforcement, what areas this bill is purported to protect.
Duke Piper, Gold Coast Agency, Inc., explained he was requested by the president of the Nevada Investigators Association (NIA) to testify against S.B. 447. He concurred with the testimonies of the other investigators and explained, the investigators work closely with law enforcement agencies while they are doing surveillance. The school grounds in question would be very vital with students on a workmans' compensation claim. He stated, 80 percent of their work, is surveillance on workmans' compensation claims. S.B. 447 would be detrimental to the private investigation work and services they provide. Speaking on behalf of NIA, he asked that the exemptions be imposed for the private investigators and other affiliated services, such as a repossessor, security agencies and such, which this bill would affect drastically.
Senator Neal asked who hired him, when work was done for the SIIS. Mr. Piper responded, it was usually the independent owner of the private company that the SIIS claim was filed with.
Senator Coffin asked Dr. Temple why the policy only addressed covert video and not audio. She responded, the charge of the committee, from the regents, was to address video. She stated, audio surveillance was discussed during the committee meetings and the committee members were assured there is a state law that covers audio surveillance.
Senator Glomb stated, she believed audio is covered under all of the wire tapping laws. Senator Coffin commented, there is no state law against a principal listening to a teacher's lecture or any individual from listening to a class to determine what the instructor's political beliefs are, etc. Dr. Temple explained, they have mechanisms to take care of those problems on the campus, where there are problems with that. Those mechanisms are academic freedom, tenure and promotion committees, ethics committees, faculty senates, and the Nevada Faculty Alliance.
Noel S. Waters, District Attorney, Carson City District Attorney's Office, testified on behalf of the Nevada District Attorney's Association. He stated, he shared many of the concerns that had been offered by others and understood the basis of the background behind the bill. He expressed concern with the purposed bill dealing with the breadth of any kind of surveillance and volunteered to assist in a work session. He noted, the U.S. Constitution's rules on reasonable expectation of privacy have been in effect since 1966. In that, an individual must have a reasonable expectation of privacy in the activity and the location where he is carrying on some conduct. Also, it must be something that society is prepared to recognize as being reasonable.
Vice-Chairman O'Donnell offered Mr. Gagnier time for a rebuttal.
Mr. Gagnier stated, the Nevada Supreme Court decision that was referred to earlier by Mr. Klasic, was handled by Mr. Water's office. In that instance, where it was said there was no reasonable expectation of privacy, a court order existed. Also, he thought a lot of the concerns that were heard in the hearing, could be taken care of by the insertion of the word electronic surveillance. In his opinion, the sponsor meant electronic and not visual. He stated it was said, it should not be extended to common areas. In response to him, regarding the incident in Washoe County, the Attorney General of the State of Nevada, indicated, "I am sure your are aware that the placement of a camera in a common area is not a violation of law." Mr. Gagnier asked, what constitutes a common area, a locked breakroom where employees change clothes? In his opinion, a common area would be something that would be open to the public. He added, they would be glad to work with Senator Coffin on any of amendments.
Dr. Temple advised, the reason why the committee did not handle the audio is written in NRS 200.650, unauthorized surreptitious intrusion of privacy by listening devices is prohibited. She added, that is followed up by several pages of NRS 179.515, which indicates taping devices can be used and audio taping devices and when they cannot be used. On the basis of that, the committee stayed with video surveillance.
Senator Coffin noted the information from Dr. Temple and added that the law does not address just the general snooping in on a class as opposed to electronic surveillance.
There being no further business, Vice-Chairman O'Donnell closed the hearing at 3:55 p.m.
RESPECTFULLY SUBMITTED:
Judy Alexander,
Committee Secretary
APPROVED BY:
Senator Raymond D. Rawson, Chairman
DATE:
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Senate Committee on Human Resources and Facilities
May 17, 1993
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