MINUTES OF THE
SENATE COMMITTEE ON JUDICIARY
Sixty-seventh Session
June 23, 1993
The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 2:30 p.m., on Wednesday, June 23, 1993, in Room 224 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda. Exhibit B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Senator Mark A. James, Chairman
Senator R. Hal Smith, Vice Chairman
Senator Lawrence E. Jacobsen
Senator Mike McGinness
Senator Dina Titus
Senator Raymond C. Shaffer
Senator Ernest E. Adler
GUEST LEGISLATORS PRESENT:
Assemblyman Wendell P. Williams, Clark County Assembly District
No. 6
Assemblyman William A. Petrak, Clark County Assembly District No. 18
Assemblyman Robert M. Sader, Washoe County Assembly District No. 32
STAFF MEMBERS PRESENT:
Dennis Neilander, Senior Research Analyst
Sherry Nesbitt, Committee Secretary
OTHERS PRESENT:
Ande Engleman, Nevada State Press Association
Brooke Nielson, Assistant Attorney General, State of Nevada, Office of the Attorney General
Captain Randy Oaks, Las Vegas Metropolitan Police Department
Ray Sibley, Risk Manager, Washoe County, Nevada
Joanne Renne, Risk Manager, City of Reno, Nevada
Andrew Urban, Office of the City Attorney, Henderson, Nevada
Madelyn Shipman, Office of the City Attorney, City of Reno, Nevada
Blackie Evans, Executive Secretary/Treasurer, Nevada State AFL-CIO
(American Federation of Labor and Congress of Industrial Organizations)
Scott MacKenzie, Hotel and Restaurant Employees International Union and Culinary Union Local 226
John Wilhelm, Southwestern Regional Director, Hotel and Restaurant Employees International Union
Wanda Matthews, Private Citizen
Jack Grimburg, Private Citizen
Archie Young, Private Citizen
Lilo Distler, Private Citizen
Robert Faiss, Lionel Sawyer and Collins, Counsel for the Nevada Resort Association (NRA)
Howard Cole, Lionel Sawyer and Collins
Bill Bible, Chairman, Nevada Gaming Control Board
Kathleen Sakelaris, Legal Intern, State of Nevada, Office of the Attorney General
Kay Zunino, Chief, Support Enforcement Office, State of Nevada, Department of Human Resources, Welfare Division
Bobbie Gang, representing the Nevada Women's Lobby and National Association of Social Workers, Nevada Chapter
Charles R. Gardner, Deputy Attorney General, State of Nevada, Office of the Attorney General
The first bill on the agenda was Assembly Bill (A.B.) 204, which was being pursued in lieu of Senate Bill (S.B.) 178.
ASSEMBLY BILL 204: Requires reporting of tort claims against governments.
SENATE BILL 178: Prohibits certain actions by court and makes voidable provisions of settlement agreement which conceal information regarding civil action against law enforcement agency.
The first to appear was Assemblyman Wendell P. Williams, Clark County District No. 6. Mr. Williams said the bill deals with only government entities, and does not involve the private sector. He said it was important to note all government entities are in financial existence because of taxes. Mr. Williams stated legislators should use every opportunity to open government to the taxpayers "...so they can see where their hard-earned money is going." He said A.B. 204 is designed to protect members of the public from physical injury or death which may result from tortious conduct of a governmental entity. Mr. Williams said the legislation does not modify the Nevada Rules of Civil Procedure or any right conferred by a specific Nevada statute. He said the public should be advised if a government agency has a hazard which caused an injury. Mr. Williams said the disclosure would include any amount of money paid to a claimant and the final disposition of the case.
Senator Titus said in recent years the university system has been plagued by lawsuits. She asked Mr. Williams if the system would be covered by A.B. 204. Mr. Williams answered they would. Senator James asked if it would cover the Las Vegas Metropolitan Police Department and Mr. Williams replied in the affirmative.
Senator James established the only cases which would be reported would be those which proceeded to judgment. Mr. Williams indicated pending claims were also addressed.
The next to speak was Ande Engleman, Nevada State Press Association. Ms. Engleman indicated the association had been working on the bill with Mr. Williams since the end of the 1991 session. She said after the hearings on A.B. 204 in the assembly committee, which revealed instances of settlements which had been hidden from the public and the press, it was determined legislation of this type was needed, "...rather than having to depend upon the court to open up settlements, etc." Ms. Engleman said with regard to pending claims, the legislation would allow for disclosure of that situation, but no settlement amounts would be addressed with respect to those claims until they were finalized. She reiterated the fact that taxpayers have a right to know how their tax dollars are being spent, including any judgments which are taken against a government entity. Ms. Engleman added there was no opposition to the legislation in the assembly.
Ms. Engleman indicated the press association was pursuing passage of A.B. 204 in lieu of S.B. 178.
Senator Titus asked Ms. Engleman to confirm for the record that the legislation covers the university system. Ms. Engleman answered that was the intent of the bill.
The next to testify was Brooke Nielson, Assistant Attorney General, State of Nevada, Office of the Attorney General. Ms. Nielson stated for the record Attorney General Frankie Sue Del Papa supports A.B. 204 in its amended form. She said, "We happily accept the responsibility this bill would impose...it is something we can do and should do." Ms. Nielson said passage of the bill will give the citizens of the state far better access to what is occurring with regard to tort claims against government entities.
Speaking next was Captain Randy Oaks, Las Vegas Metropolitan Police Department. Captain Oaks said the department "is prepared to support this bill." He said when the bill was originally introduced they had "grave concerns over the type of information which would have been revealed...specific aspects of lawsuits which would have compromised witnesses." Captain Oaks stated they believe the public has the right to know where their money is going and to whom it is going.
The next to speak was Ray Sibley, Risk Manager, Washoe County, Nevada, and Joanne Renne, Risk Manager, City of Reno, Nevada. Mr. Sibley said Washoe County supports A.B. 204. He said at this time the county provides to the press, when requested, computer printouts of status reports regarding claims against the county. Mr. Sibley stated the county had a concern regarding pending claims if the amount claimed must be revealed. He said that revelation could impact negotiations with the claimant's attorney. Mr. Sibley pointed out some of the insurance companies involved may not be willing to provide the requested information, however.
Ms. Renne stated the City of Reno is prepared to support the bill. She said they did have difficulty in several areas, particularly the disclosure of information on pending claims in litigation and disclosure of information which may invade an individual citizen's privacy.
Senator James pointed out once a lawsuit was filed it became public record and there should be no problem with advising the public of the pending claim. Ms. Renne and Mr. Sibley both indicated "claims pending" were not necessarily suits which had been filed. Mr. Sibley said claims and litigation were handled separately by the county. Senator James asked Mr. Williams if the legislation should include claims other than lawsuits which have been filed. Mr. Williams answered it should not and suggested the language should be amended to say "lawsuits" instead of "claims."
Ms. Engleman disagreed and said the bill was intended to cover more than lawsuits and should include claims. She also disagreed with Mr. Sibley's implication that some funds "belonged to the insurance companies," and said it was the taxpayer who pays the insurance premiums."
Senator James asked Ms. Engleman when "something ripens into a claim...at what point does it have to be disclosed?" Ms. Engleman answered, "Any sort of claim made against a government entity." Mr. Sibley stated any time they receive any type of correspondence alleging someone was injured or damaged, it is immediately classified as a claim. He reiterated they have no problem with providing that information, "...except for those that are open and are in the process of negotiation...we don't want to have the financial information open, so the other person can come in and look at what we have." Senator James said the bill would only require the disclosure of what has been claimed. Mr. Sibley said that addressed his concern.
The next person to testify was Andrew Urban, Office of the City Attorney, Henderson, Nevada. He indicated he appreciated the chairman's clarification regarding pending claims. Mr. Urban asked if it was the intent of the legislation that the city attorney account for his or her time spent in handling the claim and also if expenses incurred needed to be listed. Senator James answered the reference was "determined fees and costs" which are what the city attorney's office would have to pay in connection with a judgment or settlement. The chairman said the city attorney's time handling the claim would not have to be set forth.
The next to appear before the committee was Madelyn Shipman, Office of the City Attorney, City of Reno, Nevada. Ms. Shipman said some governmental agencies have risk managers who basically are charged with the responsibility of providing the list addressed in the bill
and some do not. She said the words "or designee or other representative" should be added to the bill to cover that situation.
There was no further testimony on A.B. 204; the chairman closed the hearing on the bill and opened the hearing on Assembly Bill (A.B.) 312.
ASSEMBLY BILL 312: Makes various changes relating to gaming licensees.
The first to testify was Assemblyman Wendell P. Williams, Clark County District No. 6. Mr. Williams stated:
It is quite evident that the gaming industry is changing quite a bit in America...which has strong potential effects on Nevada. Nevada is in a critical position...at a crossroads...and we cannot afford to stick our heads in the sand and do things as we have been. Currently in the country there are 21 or more states that have instituted or are in the process of instituting some form of gaming. It is proliferating throughout the county at different levels. Many people who are considering gaming and who are instituting gaming at this time have been looking at Nevada as the leader...and as an example. It is very important that we maintain our position as a leader in the gaming industry...
With that, it is evident that the federal government has been very eager and anxious to regulate gaming...now that other states are instituting gaming, it makes it more appealing and the appetite is growing at the federal level to regulate gaming...
We are not going to be the only game in town. We have to be stronger from our standpoint to show we can handle it and can handle it in a better fashion and in the best way. We cannot afford to have license holders and properties who would violate specifically federal gaming laws and labor practices...that is one of the worst things we can do to our economy...we need to be able to show strongly through our actions and through our laws that we would not allow any people to jeopardize the industry and the people who work in the industry.
Mr. Williams said A.B. 312 extends to the activities of license holders in the state, and what violations may be done by those license holders. He said the legislation will show the rest of the country that Nevada intends to deal with those violations, "...and that we care about the industry."
The next to speak was Blackie Evans, Executive Secretary/Treasurer, Nevada State AFL-CIO (American Federation of Labor and Congress of Industrial Organizations). Mr. Evans indicated the organization supported the legislation. He said, "It is time we joined the 21st century... there has got to be a better way to resolve differences we have had over the past few years in the gaming industry."
The next persons to testify were Scott MacKenzie, Hotel and Restaurant Employees International Union and Culinary Union Local 226, and John Wilhelm, Southwestern Regional Director, Hotel and Restaurant Employees International Union.
Mr. Wilhelm stated he had been the chief negotiator for the local unions in Las Vegas and said they have "successfully negotiated contracts without strikes with 31 of 33 casino-hotels which we have under contract." He stated support for A.B. 312. Mr. Wilhelm said the bill will help equip Nevada's gaming regulators with the ability to contend with "the new and totally different problems challenging our industry...." He referred to the Frontier Hotel strike and stated, "The Frontier is the leading example of why this legislation is needed. These proposals are essential in the changing environment facing us today, lest we have future Frontier's, which might be fatal to all of us in Nevada."
Mr. Wilhelm said the bill has two parts and explained:
(1) The bill requires gaming regulators to consider one additional factor in granting a license or in finding suitability. That factor is the licensee's record of compliance with federal and state laws, regulations and policies.
...
We have not arrived recently in our position on the question of federal intervention in Nevada gaming. Nevada's regulatory approach has been extraordinarily effective in the environment that existed before this national proliferation of gaming, insuring gaming's basic integrity while permitting the industry's remarkable entrepreneurs to experiment and flourish without the stifling hand of excessive regulation. However, it is apparent to us that many in Nevada are now ignoring reality...in the face of rapidly accelerating sentiment in Washington, D.C., that nationwide gaming proliferation requires national gaming regulation, as well as national gaming taxation. Whatever we do in Nevada is now subject to intense national scrutiny.
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Nevada's image across this country is not what it ought to be and what it needs to be.
The second threat is nationwide competition...our regulatory system must modernize itself to contend with both of these threats...federal intervention and nationwide competition. This bill would help the regulatory system do that.
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In addition to the importance of a perception that Nevada licensee's be required to abide by the law, the new competitive environment also requires strict adherence to the law for another reason. What would a repetition of the MGM Grand fire mean to us in the next several years? Please don't dismiss this concern as alarmist or exaggerated. Did you know that state health and safety inspectors discovered at the Frontier four blocked fire doors...which were impossible to open or close?
What will it mean in this new competitive environment if Nevada licensees can get away with false advertising with no regulatory oversight?
The first part of this proposed legislation would take a step toward equipping Nevada's gaming regulators to better ward off the threat of federal gaming regulation and to better position the industry to avoid the black eye, which would mean so much more in this time of intense nationwide competition.
(2) Labor relations issues. Because federal labor law presently preempts the state from addressing labor relations issues as part of the regulatory process, these provisions specify that they take effect only when the federal laws are amended to permit such state action.
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This part of the legislation in its most important provision would mandate binding arbitration of contracts in the gaming industry when disputes have reached a threshold of severity, measured by the length of a strike...when permitted by amendments to the federal labor law.
Many of us can remember the terrible national publicity which resulted from the 1984 strike in Las Vegas...this industry simply cannot stand a repetition of that terrible event and its attendant publicity...our new image in Las Vegas is simply not compatible with another '1984.' There is a real and present danger that the Frontier will lead to exactly that in 1994.
Our very survival economically requires a consideration of labor relations issues, and it requires a method of certain resolution of disputes that arise from lawbreaking.
Many of our leaders of both political parties in Nevada have recognized these dangers and have tried to use the normal methods of civic leadership and persuasion to end the Frontier strike before it collides with our economic future.
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Does it make sense for Nevada that its gaming regulators stand by in the face of such blatant violations of the law [as committed by the Frontier]. Would the regulators stand by if, for example, a licensee had serious violations of drug laws or tax laws...is it in Nevada's best interest to suffer a prolonged, unnecessary dispute which threatens to turn our state in 1994 in the face of intensifying competition into another 1984? That is where we are headed if this legislature does not take firm action.
This proposed legislation is moderate in its approach. It offers our best hope to insure the Nevada regulatory system will be as effective in the new environment facing our industry as it was in the old environment.
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There is enormous irony in what I understand to be the position of both the Nevada Gaming Control Board and the Nevada Resort Association. Chairman [Bill] Bible testified in the assembly that the control board already has the authority to act...that is provided by this legislation... to require licensees to abide by all federal and state laws, regulations and policies...that was stunning news to members of the assembly judiciary committee...the assembly members asked, 'If the control board thinks it already has the authority to address [the Frontier's] outrageous lawbreaking, why hasn't it done so?' If the control board already has the authority to take action, why has Governor Miller been attacked for his efforts to settle the Frontier strike...
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Regarding the arbitration part of this issue...who could possibly oppose this on the merits? I know the Nevada Resort Association (NRA) will attempt to obfuscate this issue behind a smoke screen of legal technicalities. The NRA has extremely capable lawyers. I think we all know if a position is weak on the merits, it is good to fall back on technicalities. I would like to know why, if there are legal problems with this legislation, they have not been raised in the 2 months this bill has been of records...not in the waning days of this session?
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We are all in this together. Either we join hands and attack the things that threaten Nevada's future or we will all get hurt...An equally enlightened approach on the part of the gaming industry would have resulted in support for this bill from the NRA. Unfortunately, however, a knee jerk, special interest approach by gaming opposes this bill.
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I would like to pose this question to you. If the senate finds a way to botch this bill...to try to bury the issue ...will the issue go away? If the senate decides to bow to special interests...if the senate can't debate and can't vote in the light of day on the senate floor...and indeed can't pass something as self-evidently positive, fair and neutral as binding arbitration to avoid prolonged disruption of our economy...then what happens after that?
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I hope this measure will be debated on the floor and will be voted upon...I hope that it will be passed. If it isn't, we will have to go a much tougher route. This measure in tougher form will be the subject of a ballot referendum next year. I don't think anyone doubts that the people of Nevada support binding arbitration as a rational, logical, fair substitute for prolonged, damaging labor strikes and lawless activity by holders of privileged gaming licenses. I think it is only special interests that would quarrel with that proposition.
Senator James asked Mr. Wilhelm what jurisdiction the gaming commission has over labor organizations. Mr. Wilhelm answered, "It has significant jurisdiction over labor organizations." He said in Nevada, following the 1984 strike, the NRA "prevailed upon the legislature to pass a law which became known as Regulation 19, which requires the gaming regulators to register and investigate union representatives." Mr. Wilhelm said it is believed by most persons involved in labor-management relations, "...that other aspects of labor-management relations are preempted by the federal scheme...that is why the arbitration proposal included in the bill would require companion federal action." He stated that federal action would involve an amendment to the National Labor Relations Act which would permit the state gaming regulators to impose arbitration, if they see fit to do so.
In response to questions posed by Senator James regarding the Frontier Hotel strike and whether the gaming regulators have taken action, Mr. Wilhelm replied:
I and many others on behalf of the union have brought all of those things to the attention of both the board and the commission on numerous occasions...it is true that neither the board nor the commission ever said...we believe we lack the authority to look at these things. On the other hand, it is also true that in spite of a record that is replete with evidence of all of this...health and safety violations, false advertising, and the other litany of things...neither the board nor the commission has ever even explored those issues, let alone acted upon them.
Senator James asked if a law has ever been enacted, "...where we knew or had a strong suspicion that it was void or invalid because it is preempted...when we don't know when it might become effective?" The chairman pointed out the effective date "could be 2 or 3 years down the road." Mr. Wilhelm answered he did not know if there was any such precedent but agreed it would only become effective "when the federal difficulty is removed." He continued:
You only meet every 2 years. This community faces a potentially disastrous problem next year...I think it is a problem that the people of this community, especially the employers, are intent upon avoiding. We certainly are on the union side.
Senator James indicated there was another consideration:
What if the United States Congress or the court said that aspects of this would be preempted, but other aspects would not be preempted. Would you have to have another court interpret which part of this statute is valid and which part is invalid?
Mr. Wilhelm answered that was theoretically possible. He added he believes the state would have a very good opportunity if the
legislature speaks now to say to the United States Congress, "The Nevada Legislature has taken this position...."
Senator James asked, "In labor law, does the arbitrator propose terms for inclusion in a collective bargaining agreement as a condition of the order?" He pointed out that was prohibited in A.B. 312 on line 27. Mr. Wilhelm answered it was the commission who could not propose the terms of an agreement. He said the purpose of that language was to prevent the commission from deciding the terms of a labor agreement.
Mr. MacKenzie introduced Wanda Matthews, Private Citizen, Jack Grimberg, Private Citizen, Archie Young, Private Citizen, and Lilo Distler, Private Citizen, all of whom were described as "Frontier Strikers."
Ms. Matthews stated she worked at the Frontier Hotel for 29 years and is the strike coordinator. She said she hoped the committee would pass A.B. 312, "...because of things that are going on...we need someone to come in and help us." She continued:
These people are breaking the law and nobody is doing anything about it. It makes me think in America we have two sets of rules, one set for the working man and one set for the people with the money.
Mr. Grimberg stated he was terminated from the Frontier Hotel in 1991 "for union activities." He said he has "been on the picket line for almost 2 years." Mr. Grimberg said there were 550 families "who are suffering out there." He said he feels "the senate should stand up and be counted...I think both free enterprise and the working person can work together...."
Mr. Young said he was at the Frontier for 23 years. She said the Frontier "has broken many laws, especially the one about the pensions."
Ms. Distler said she worked at the Frontier for 24 years, has been on strike for 22 months, and stated, "We do need help."
Robert Faiss, Lionel Sawyer and Collins, counsel for the NRA, and Howard Cole, Lionel Sawyer and Collins, an attorney specializing in labor law, were the next to testify. Mr. Faiss provided a prepared statement, which is attached hereto as Exhibit C.
Senator Shaffer asked Mr. Faiss, "Do you believe if we pass this bill we would be trying to lead the United States Congress into a direction ...would be attempting to have an effect on pending federal legislation?" Mr. Faiss answered he could not speak for the Congress, but added the correct method "to influence federal legislation" is through a Resolution to Congress. He stated his concern regarding passage of A.B. 312 in its present form is if the United States Congress does not specifically follow the objections, the bill will remain void. Mr. Faiss added, "Any attempt to put in just a portion that is not reflected in federal legislation would be met by a lawsuit from some interested party."
Senator Jacobsen stated, "I am concerned you are inviting in another entity into somewhat of a family fight." He asked Mr. Faiss what his suggestions might be for solving the problem of the Frontier. Mr. Faiss said everyone in the state would prefer that situation "would come to an end in a manner which is fair and equitable to all parties." He said special legislation was prohibited and there was a question as to what the legislature could do. Mr. Faiss continued, "It is in the best interests of the gaming industry to state that you have labor-management harmony."
Mr. Cole referred to the earlier statement regarding amendments which had been submitted to Congress for consideration that might address the authority of the state to pass legislation relating to binding arbitration. He said:
We can't talk about one piece of legislation which is going to provide that right to the state. The federal preemption which exists is exercised through the courts by the National Labor Relations Board; they have made it clear that except in very limited situations...any potential conflict state law has with the federal laws is void on its face...they occupy the entire field.
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When you look at the legislation Mr. Faiss outlined for you, some of these rights are not the subject of political infighting between the Democrats and Republicans in Congress...they can be simply addressed through a change of administration. Some of these rights date back to the Hartley Act of 1947...some of the date back to 1935...I don't think there is any possibility in Congress that they are going to overturn the right of employees to engage in a strike. The way this legislation is drafted says the commission has the right to order employees to terminate their work stoppage.
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If the Congress does not in total pass legislation that reflects or mirrors what has been passed here, the whole thing will not take effect. That is only one key element by which it is highly unlikely that this legislation would ever take effect. I believe there are other ways to possibly address the problems that seem to exist with the parties working together, without passing legislation that is unlikely to become effective. Preemption in all likelihood will not be removed....
Senator James asked if the Striker Replacement Bill would allow states to legislate. Mr. Cole answered it would not, since it was only a federal action. Senator James said he believed the history of the issue was that the labor interests sought to have the preemption exist, because they did not want to have piecemeal legislation in the states.
Mr. Cole stated:
Any time there is a federal agency whose sole obligation is to investigate and manage labor disputes, it is presumed they occupy the entire field. This is not a case of concurrent jurisdiction...the National Labor Relations Board (NLRB) occupies the entire field...if you are going to regulate the field to keep an integral system to avoid conflicts with the various state laws, it is presumed to be only a national system.
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There is a provision under the National Labor Relations Act, in section 10(a), where they have the discretion to give a state, through the appropriate agency, the right to jurisdiction to handle certain what would otherwise be
NLRB cases. In the history of the NLRB that seeding of authority has never taken place...and I think it highly unlikely that seeding will ever take place. Absent that, there has to be a fundamental change in the law, whether it be further amendments to the Taft-Hartley Act...giving the states the authority to govern and regulate labor disputes.
The next person to testify on A.B. 312 was Bill Bible, Chairman, Nevada Gaming Control Board. Mr. Bible stated section 1 of the bill amends an existing licensure section of Nevada Revised Statutes (NRS) 463.170 and adds "the ability to examine records and complies with federal and state laws, regulations and policy." He said they have the authority to examine an applicant's business probity, their honesty and integrity, their business practices and history of dealing in either regulated or unregulated environments at the time of licensure. He said section 2 of the bill was added by amendment in the assembly judiciary committee, and Mr. Bible said he was unsure "it really applied to the Nevada Gaming Commission," rather than the state's labor commissioner.
Senator Titus asked Mr. Bible to comment on the testimony regarding lawbreaking at the Frontier, while it continues to be licensed. Mr. Bible answered:
You have to take the various areas and break them down into component parts. In terms of the labor areas, a number of charges have been filed by the union with the NLRB...in some cases those changes have been heard at various administrative levels within the agency. To my knowledge, most of the charges at this point are currently on appeal. The licensee has not exhausted either the administrative or judicial remedies in terms of those determinations. The same would hold true for the safety violations. They are still contesting some of those particular violations and have not exhausted either their judicial or administrative remedies. In terms of the advertising...quite frankly, I was offended by the advertising...we had conversations with the licensee and they discontinued the advertising. We did not feel, after our examination of the advertising, that it rose to the same level as other advertising by licensees, and it resulted in disciplinary action. The board did determine through its audit program that there were substantial violations of Regulation 6(a), which is a codification of Nevada's agreement with the federal government to implement the Bank Secrecy Act. That resulted in the filing of a complaint and a stipulated settlement, resulting in a $100,000 fine against the licensee.
Again, it is an exercise of discretion...you examine the various issues and discretion has ranged from a substantial monetary penalty on one side, of $100,000, and counseling in the case of the advertising, to waiting to see the result of these various labor relations actions on the other hand.
Senator Titus asked if a comparison was made of the Frontier with other large hotels "up and down the strip," if comparable types of charges would be pending. Mr. Bible answered, "You would in some areas." He added:
I personally feel if a licensee has continually and constantly violated safety code requirements...if those allegations have been fully adjudicated by the agency who has the primary responsibility...I believe we should take action against the licensee....
Senator Titus stated, "But you are reluctant to do this until everything else is exhausted, is that right?" Mr. Bible answered, "It depends upon the area...clearly in the labor area, we are preempted from hearing those particular issues." Senator Titus then inquired, "How does the addition of the record of compliance with federal and state laws...change your behavior...?" Mr. Bible answered it will "codify existing behavior."
Senator Jacobsen asked if there had been any instances in the past where a license has been "placed in jeopardy" by labor disputes. Mr. Bible answered, "To my knowledge in labor disputes, no." Senator Jacobsen said it would be "difficult in terms of responsibility, since the employer has no control over what the picket line does." Mr. Bible agreed and added, "Obviously, the labor situation down there is frustrating to all of us...I share that frustration and the Governor shares that frustration..it is in the state's interest that this matter be resolved."
There was no further testimony on A.B. 312. Senator James closed the hearing on the bill and opened the work session on Senate Joint Resolution (S.J.R.) 2 of the 66th Session.
SENATE JOINT RESOLUTION
2 OF THE 66TH SESSION: Proposes to amend Nevada constitution to remove justices of supreme court from state board of pardons commissioners.
Senator James reminded the committee of the testimony of Chief Justice Rose and Justice Young, who were in favor of the resolution, and the letter from Justice Steffen who expressed his desire that the law remain as it now stands. The chairman said all those who testified "made good arguments." He said "there were good and sound reasons to let the people vote as to whether they want the justices to remain on the board."
SENATOR SHAFFER MOVED TO DO PASS S.J.R. 2 of the 66th Session.
SENATOR MCGINNESS SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR ADLER WAS ABSENT FOR THE VOTE.)
* * * * *
Senator James opened the hearing on Assembly Bill (A.B.) 604.
ASSEMBLY BILL 604: Provides additional remedies for collection of child support.
The first to speak was Assemblyman William A. Petrak, Clark County Assembly District No. 18. Mr. Petrak said the legislation "deals with the shameful problem of the lack of child support from deadbeat dads and some moms in our state." Mr. Petrak introduced Kathleen Sakelaris, Legal Intern, State of Nevada, Office of the Attorney General. Ms. Sakelaris read into the record the testimony of Attorney General Frankie Sue Del Papa, which is set forth as Exhibit D.
Mr. Petrak said there was "an excess of 40,000 cases on the books in Nevada...less than 10,000 of those cases where child support is supposed to be paid are current in payments."
Senator Jacobsen asked for an explanation of the process for collection of child support. Kay Zunino, Chief, Support Enforcement Office, State of Nevada, Department of Human Resources, Welfare Division, responded to the question. She said the Welfare Division, in cooperation with the district attorneys and the clients they serve, provides four basic services, the first of which is locating the delinquent parent. Ms. Zunino stated a number of resources are used, i.e., interfacing with other governmental agencies, federal agencies, utility companies and other resources. She said A.B. 604 would allow the agency to receive upon request rosters from professional licensing boards in order to find individuals who are self-employed. Ms. Zunino said the boards could be notified that an individual has a child support arrearage. She indicated the Contractors' Board is very interested in the legislation, and would use this information in determining licensing requirements.
Ms. Zunino said they also have a cooperative agreement with the attorney general's office regarding location of missing children. She added, "The more resources you have, the more people you can locate."
Assemblyman Robert M. Sader, Washoe County Assembly District No. 32, was the next to speak to the committee. Mr. Sader indicated the bill was much larger when it originally went before the assembly committee, and was pared down to the two concepts before the senate committee, i.e., "a penalty and information-gathering functions."
Senator James referred to Senate Bill (S.B.) 298 which deals with the same statute as A.B. 604.
SENATE BILL 298: Revises provisions governing payments for support for children.
The chairman asked Mr. Sader if interest, as addressed in S.B. 298 and penalties, addressed in A.B. 604 would both be considered at the same time. Senator Adler said if both bills are passed, the person who obtains the judgment will also be allowed to add interest, attorney's fees and a 10 percent per annum penalty as set forth in A.B. 604. Mr. Sader stated a child support arrearage is considered to be a judgment when it becomes delinquent. He said the statutory rate of interest assessed to judgments begins to accrue at that time. Senator Adler said the imposition of the penalty becomes effective only upon enforcement of the judgment.
Mr. Sader said A.B. 604 "began life dealing with interest." He indicated the assembly committee changed the bill to make it clear it dealt with a penalty, "...and interest on a judgment would be in addition to that." Mr. Sader continued:
The common practice is...but it is almost never the case, that an individual who is delinquent in their child support ends up paying interest on that, unless they are taken to court and go all the way through a court proceeding, and then only if the judge awards it. It should be clear in the statutes that there is a penalty for not paying on time. You want to motivate somebody to pay on time and have an enforceable penalty...that is what this is about.
Senator Adler and Mr. Sader agreed A.B. 604 and S.B. 298 were not inconsistent. Mr. Sader stated he was inclined to support both pieces of legislation. He also said a common practice was a negotiation of child support obligations by the district attorneys and often the full amount of the judgment was not enforced. He added, "It pays not to pay...and that is wrong."
Mr. Sader said a child support order is entered by a judge and wages can be withheld to enforce that order. Senator Jacobsen asked if interest was added at the time of that order. Mr. Sader said interest can be expressed in the judgment, but it usually is not set out but accrues at the statutory rate. Senator Jacobsen asked if a person "leaving court was well aware of his or her support obligation." Mr. Sader answered he or she is aware of the support obligation but not as to the issue of interest.
Senator James established that both interest and attorney's fees could be waived by virtue of the provisions of S.B. 298, but the penalty must be paid, as set forth in A.B. 604. Mr. Sader said the purpose of the penalty was intended to be "motivational," such as a late payment fee attached to any billing.
Senator James questioned Mr. Sader regarding the "delayed effective date" which was rejected with reference to S.B. 298. Mr. Sader said the reason for the delayed effective date was the fiscal note which was attached to the original bill. He said as far as he knows, there is no fiscal note on the bill as amended. Mr. Sader said if it became effective in October 1993, a fiscal note would be attached because of the cost to the support enforcement division. He said that division does not currently have a computer program with the capacity to handle the searches authorized by the bill.
Senator Jacobsen asked why a person who was delinquent in child support pursuant to an order could not be charged with a misdemeanor. Mr. Sader answered it was currently classified as a felony, but that is not enforced except in unusual circumstances.
Senator McGinness stated a concern regarding having governmental entities, boards and commissions being required to report to the district attorneys. He asked, "Will all this happen? We all know what takes priority on district attorneys' desks now. Realistically, is it going to happen?"
Ms. Zunino responded she believed it would give the district attorneys another enforcement tool and added she believed Washoe County and Clark County would use that tool extensively. She said there may not be as much emphasis on support within the smaller counties. Ms. Zunino said when the new automated system is established in 1995, they will exchange information with the larger agencies and commissions via that automated system.
The next person to testify was Bobbie Gang, representing the Nevada Women's Lobby and the National Association of Social Workers, Nevada Chapter. Ms. Gang said both of the above organizations urge passage of A.B. 604. She said the bill involved a very critical issue and the families who are not receiving child support are suffering and are a burden on the state and its resources.
In response to a question posed by Senator Jacobsen, Dennis Neilander, Senior Research Analyst, indicated he had done a large amount of research in preparation for the drafting of A.B. 604. He said other states have tried other options in the area of collection of delinquent child support. Mr. Neilander indicated he would provide the information to Senator Jacobsen for his review.
There was no further testimony, and the chairman closed the hearing on A.B. 604.
SENATOR JACOBSEN MOVED TO DO PASS A.B. 604.
SENATOR TITUS SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
* * * * *
The chairman opened the work session on Assembly Bill (A.B.) 617 and A.B. 204.
ASSEMBLY BILL 617: Adopts recent revisions of Uniform Commercial Code concerning commercial paper, bank deposits and collections.
Senator James indicated passage of the legislation would adopt the uniform act, as has been done in other states.
SENATOR MCGINNESS MOVED TO DO PASS A.B. 617.
SENATOR ADLER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
* * * * *
SENATOR SMITH MOVED TO DO PASS A.B. 204.
SENATOR ADLER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
* * * * *
Senator James referred to the earlier testimony stating A.B. 204 should be passed instead of S.B. 178. The chairman indicated he had spoken to Senator Neal, who introduced the legislation, and he agreed not to pursue the legislation.
SENATOR TITUS MOVED TO INDEFINITELY POSTPONE S.B. 178.
SENATOR JACOBSEN SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
* * * * *
Senator James then opened the work session to a discussion of Senate Bill (S.B.) 472 and Assembly Bill (A.B.) 520.
SENATE BILL 472: Makes various changes in provisions relating to custody of children.
Appearing before the committee was Charles R. Gardner, Deputy Attorney General, State of Nevada, Office of the Attorney General. Mr. Gardner said the amendments "touch a statute which has not been touched before by the bill drafting process." He said he had discussed the amendments with some members of the judiciary in Las Vegas, because of the amendment to NRS 125.470. Mr. Gardner said those judges "indicated they could live with the statute with the deletion of five words...'by clear and convincing evidence'."
Senator Adler, chairman of the subcommittee handling S.B. 472, indicated he had no problem with that deletion. He also pointed to the fact the bill would "make sure everybody is before the judge at once to tell their side of the story...to get the best result the first time around," rather than having the child "become a ping-pong ball" as a result of competing orders.
Senator Jacobsen raised a question regarding how a child is picked up, possibly by law enforcement, and held pending the court order. Mr. Gardner said the judges also were concerned with this issue in this bill and in existing law. He said existing law requires a child be taken to the court which does not occur because court is not in session 24-hours each day. Mr. Gardner said in practice the child is placed with the custodial parent, which parent is required to calendar another hearing as soon as practicable. He said the question of having law enforcement pick up a child "is one that has been bounced around the country...to have law enforcement go out without the parent is very traumatic." Mr. Gardner said the best situation was for law enforcement and the parent to go together to pick up the child. He continued, "The present law allows the court to order that the child be produced before it, and it makes no indication as to who is to do it. They have been facing this dilemma since Day 1." Mr. Gardner said under S.B. 472, as amended, the court will have the opportunity to enter an order either under section 1 or section 2.
SENATOR ADLER MOVED TO AMEND AND DO PASS S.B. 472.
SENATOR TITUS SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
* * * * *
Senator James thanked Senator Adler for all his hard work as subcommittee chairman on this and other bills relating to child custody matters. He commended the senator and the others who worked on the legislation, including Mr. Gardner and Senator Diana Glomb.
ASSEMBLY BILL 520: Accommodates provision for dividing income and property of married couple to federal requirements.
Senator Adler indicated the subcommittee met with Assemblyman Sader and the amendment developed by the parties "accurately reflects what the assembly meant to pass." He said the amendment basically corrects a bill drafting error.
SENATOR ADLER MOVED TO AMEND AND DO PASS A.B. 520.
SENATOR SHAFFER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
* * * * *
There was no further business to come before the committee and the chairman adjourned the meeting at 5:20 p.m.
RESPECTFULLY SUBMITTED:
Marilyn Hofmann,
Committee Secretary
APPROVED BY:
Senator Mark A. James, Chairman
DATE:
??
Senate Committee on Judiciary
June 23, 1993
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