The Committee on Elections, Procedures, and Ethics was called to order at 7:40 p.m., on Wednesday, May 12, 1999. Chairwoman Chris Giunchigliani presided in Room 3138 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All Exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

COMMITTEE MEMBERS PRESENT:

Ms. Chris Giunchigliani, Chairwoman

Mr. Bob Price, Vice Chairman

Mr. Bob Beers

Mr. Joseph Dini, Jr.

Ms. Sheila Leslie

Ms. Kathy McClain

Mr. Richard Perkins

Ms. Kathy Von Tobel

COMMITTEE MEMBERS EXCUSED:

Ms. Sandra Tiffany

STAFF MEMBERS PRESENT:

OTHERS PRESENT:

Chairwoman Giunchigliani opened the hearing on S.J.R. 15, and called on Scott Wasserman, chief committee counsel, to explain the court case that precipitated the resolution. Senator Ann O’Connell, District 5, Clark County, the chief sponsor of the resolution, was not present for the hearing.

Mr. Wasserman read from a prepared speech (Exhibit C) pertaining to the use of statistical sampling within the state during the 2000 census. The Census Bureau, which was part of the Department of Commerce, announced a plan to use two forms of sampling, one actual and one based on statistical methods, in the 2000 decennial census in order to address a growing problem of undercounting identifiable groups, such as renters, minorities, and children. In 1998, two sets of plaintiffs filed separate lawsuits challenging the legality and constitutionality of the plan. One suit was filed in the District Court for the Eastern District of Virginia by 4 counties and residents of 13 states. The other suit was filed by the United States House of Representatives in the District Court for the District of Columbia. The district courts held the plaintiffs satisfied requirements for standing, ruled that the Census Bureau’s plan for the 2000 census violated the Census Act, granted the plaintiffs’ motion for summary judgment, and permanently enjoined the planned use of statistical sampling to determine the population for congressional apportionment purposes. On appeal, the United States Supreme Court consolidated the cases for oral argument.

The United States Supreme Court reviewed the standing of the plaintiffs filing the suit in the district court for the Eastern District of Virginia. In order to establish standing, a plaintiff must have alleged personal injury traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by requested relief. The United States Supreme Court held the appellees (plaintiffs in the lower court decision) met their burden of proof regarding their standing to bring the suit. The appellees submitted an affidavit demonstrating it was a virtual certainty that Indiana, where appellee Gary Hofmeister resided, would lose a seat in the United States House of Representative under the proposed sampling of the census 2000 plan. The court held the Indiana resident’s expected loss of a Representative in Congress satisfied the injury-in-fact requirement for standing because with one fewer Representative, Indiana residents’ votes would be diluted. He also met the second and third requirements of standing as the court found there was undoubtedly a traceable connection between the sampling in the decennial census and Indiana’s expected loss of a Representative, and there was a substantial likelihood the requested relief would redress the alleged injury. The relief would be a permanent injunction against proposed uses of sampling in the census.

Mr. Wasserman explained the court held the appellees had established standing based on the expected effects of using statistical sampling in the 2000 census on intrastate redistricting. Several counties in which the appellees resided were located in states required to use federal decennial census population numbers for the particular state legislative redistricting, and the states’ use of the population numbers generated by the federal decennial census for federal congressional redistricting. The court held the appellees living in those counties had a strong claim they would be injured by the Census Bureau’s plan because the votes would be diluted vis-à-vis residents of counties with larger undercount rates. The expected intrastate vote dilution satisfied the injury in fact, causation, and redressibility requirements.

Having established the appellees had standing, the Supreme Court turned to the dispute over the meaning of relevant provisions of the Census Act. The United States Supreme Court stated it agreed with the lower court’s conclusion that the proposed use of statistical sampling to determine the population for purposes of apportioning congressional seats among the states violated the Census Act. The court found the use of sampling in the determination of population for purposes of apportionment was prohibited. As amended, the section of the ruling pertaining to statistical sampling read: "Except for the determination of population for purposes of apportionment of Representatives in Congress among the several States, the Secretary shall, if he considers it feasible, authorize the use of the statistical method known as "sampling" in carrying out the provisions of this title." Therefore, it prohibited the use of sampling in calculating the population for purposes of apportionment. The amendments served to change a provision permitting the use of sampling for purposes other than apportionment into one requiring sampling to be used for such purposes if feasible.

Mr. Wasserman stated the United States Supreme Court concluded the Census Act prohibited the proposed uses of statistical sampling in calculating the population for purposes of apportionment. Because the court so concluded, the court found it unnecessary to reach the constitutional question presented. The question here would be whether the requirement of an actual enumeration as used in section 2 of Article 1 of the United States Constitution required a physical count of the population and prohibited statistical sampling. In so holding, the court cited the doctrine that a case could be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law. The court would decide only the latter. The court noted as the decision resolved the substantive issues presented by the suit filed by the United States House of Representatives, the case no longer presented a substantial federal question and the appeal in the case was dismissed.

Chairwoman Giunchigliani questioned the use of sampling, and whether the state would want to use the process. She asked if there were any further questions or comments. Hearing none, she closed the hearing on S.J.R. 15 with no action taken by the committee.

Chairwoman Giunchigliani stated the committee had received two amendments on Assembly Bills from the Senate on which to concur or not concur, and she would entertain a motion for A.B. 169 and A.B. 611. She explained the amendment to A.B. 169 clarified the use of a unique number to identify a person when registering to vote and noted the amendment to A.B. 611 moved new language from one part of the bill to another.

Chairwoman Giunchigliani opened the work session on S.B. 471, and called on Michael Stewart, Committee Policy Analyst, to explain the bills in work session. He distributed a handout (Exhibit D) explaining the proposed amendments.

Mr. Stewart explained S.B. 471 had been sponsored by the Senate Committee of on Government Affairs on behalf of Nevada Association of Counties. There was a mockup of a bill within the work session material (pages 7 and 8) showing what an actual bill would look like when drafted and printed with all of the information on the front of the bill. Chairwoman Giunchigliani stated she would entertain a motion on the bill.

Chairwoman Giunchigliani opened the work session on S.B. 478 and explained the proposed amendments recommended in Exhibit D on willful violations.

Chairwoman Giunchigliani stated each section for proposed amendments were open for discussion. The proposed amendments:

Chairwoman Giunchigliani asked Scott Scherer, general counsel, Office of the Governor, what the main purpose was of the language being drafted differently than the original bill. Mr. Scherer stated the Office of the Governor was concerned about the use of civil penalties. According to current law, only those who had committed a willful act were subject to a civil penalty. He stated it was hard to determine whether a willful act had been done. The Office of the Governor was concerned about criminal sanctions, and he felt the third and fourth sections of the proposed amendments dealt only with criminal violations rather than willful violations. Chairwoman Giunchigliani asked if the civil and the criminal violations could be segregated, and Mr. Scherer stated yes. He felt the criminal penalty should be stronger than the one for civil violation. Chairwoman Giunchigliani suggested the possibility of using one penalty for a willful violation, another penalty for the criminal violation, or one penalty for the entire bill.

Assemblyman Perkins suggested regardless of which penalty definition was chosen, there needed to be a consistency within the law for violations. Mr. Wasserman stated if applied to any area other than Nevada Revised Statute 281, the definition would not be applied to the civil penalty.

Chairwoman Giunchigliani asked if the committee wanted stricter language, the current language, or something different. No comments were heard from the committee members. Chairwoman Giunchigliani stated the language would remain as written.

Chairwoman Giunchigliani explained the remaining proposed amendments to sections of S.B. 478 in the work session. One proposed amendment was to create a new section 4.5 defining "vexatious". The three definitions suggested were:

annoyance; or

Discussion among the committee suggested the definition of "lacking justification; intended to harass" be accepted for section 4.5.

The next proposed amendment to be considered was whether the Ethics Commission would appoint a commission counsel, or a counsel would be provided by the Attorney General. The discussion ensued on the use of an independently appointed counsel or the use of a deputy from the Office of the Attorney General. Assemblyman Perkins stated his main concern with an independent counsel was that no boundaries were statutorily defined for such counsel. Assemblyman Price voiced, in his opinion, every board should use the Attorney General, as the office had very broad experience in representing the various state agencies, boards, and commissions. The counsel would have the tendency to please the employer if he or she were a part of the Ethics Commission itself. The committee agreed a full-time counsel was to be provided by the Attorney General.

Chairwoman Giunchigliani stated the next proposed amendment was to section 5. The proposed amendment:

The proposed amendment to the section stipulated a person in the unclassified service could, in certain circumstances, have other employment. The amendment ensured the executive director and legal counsel to the Ethics Commission devoted their entire time to the business of the commission.

The proposed amendment to section 10:

Assemblyman Beers had suggested the numbers be made representative of all counties. Chairwoman Giunchigliani asked Mr. Wasserman if the issue had been addressed when the bill was introduced in the Senate. Mr. Wasserman stated the only language changed in the bill addressed the total number of commissioners.

Chairwoman Giunchigliani read the proposed amendment to section 13. The proposed amendment:

Mr. Scherer had requested the proposed amendment. The discussion between the committee members suggested clarification about what a public employee was.

Chairwoman Giunchigliani stated that a new section 14.5 was to be created. The two definitions suggested to the committee for the term "unwarranted" in Nevada Revised Statute 281.481 were:

The committee agreed unwarranted in the statute was best defined by using "without justification or adequate reason."

Chairwoman Giunchigliani opened the discussion on section 15. A portion of the proposed amendment:

Mary Boetsch, chairman of the Ethics Commission, had suggested changes during initial testimony on S.B. 478. She noted the language in the bill was too broad and certain disclosures made by a member of the legislature would be appropriate when requesting or introducing a legislative measure. Chairwoman Giunchigliani stated the concern had been when a legislator was still able to draft or introduce a bill even though there was a conflict of interest. She asked Mr. Wasserman if the proposed amendment had been in the original draft, and he stated no. Assemblywoman Leslie suggested sections (a) and (b) be deleted from the bill. The committee agreed.

The second part of section 15 to be considered for an amendment:

Former Senator Thomas "Spike" Wilson had suggested the proposed amendment. He had explained the proposed language in section 15 did not address personal relationships. It was his interpretation such relationships were key reasons for disclosure. He suggested the committee delete the definition and revert back to the original language found in Nevada Revised Statute 281.501 and allow the Ethics Commission to interpret the commitment in a private capacity matter on a case-by-case basis. Mr. Scherer approved of the suggestion for section 15.

Chairwoman Giunchigliani stated the section was undefined in nature, and she requested the section be returned to the original language in order to include personal relationships. As a result, subsection 6 would be the current language. Assemblywoman Von Tobel also noted each situation should be administered on a case-by-case basis, rather than having the same rule applied to each person or situation. Assemblyman Beers stated the meaning would be nebulous. The committee agreed to retain original statutory language as noted in the work session document.

The proposed amendment to section 16:

Mr. Scherer suggested the proposed amendment be made consistent with an amendment made in section 18, page 15, to Nevada Revised Statute 281.551. The committee agreed with the amendment.

Chairwoman Giunchigliani stated the second portion of section 16 was a touchy issue. The proposed amendment:

The proposed amendment created a regulation for filing and withdrawing a complaint made against another person during a campaign or any other time. One of the concerns of the discussion among the committee was that once a complaint had been filed, there would be no way to remove the name from the record, even if the person had filed a false claim. Assemblyman Beers suggested all parties be notified of any complaint. Assemblywoman Von Tobel wanted clarification as to when an actual notice would be sent to the person to whom the complaint pertained. She thought every case was open. Chairwoman Giunchigliani stated the notice would still be sent to the person to whom the complaint pertained, yet the confidentiality clause would be in effect. The general public would not be able to call or request the records until a decision on the merit of the complaint had been made. If the complaint was deemed meritorious, all related materials would be part of public record. The language here would be applied to a just and sufficient cause hearing only. According to the current law, the Ethics Commission allowed open hearings regardless of the type of hearing or the subject matter discussed. Mr. Scherer stated the process was similar to a grand jury proceeding, whereby a person would not be able to "name names" even if the person who made the complaint said he or she had filed a complaint. He distributed handouts (Exhibit E) (Exhibit F).

Chairwoman Giunchigliani recognized Kent Lauer, executive director, Nevada Press Association, Incorporated. Mr. Lauer suggested the amendment was not an issue of truth, but rather an issue of credibility of the person. He stated no one was forbidden to testify according to the First Amendment. His concern with the proposed amendment was not when the information became public but rather if a person would not be allowed to state he or she had filed a complaint. Mr. Wasserman explained the original complaint with the language in section 16 was with the First Amendment, as there would need to be a burden placed for proving the First Amendment if a person’s name was applied to the complaint with the Ethics Commission. The statute would limit the premature public release of complaints until a determination of merit was made from the Ethics Commission. When a decision was made, the public would have access to the record of events.

Assemblywoman Von Tobel asked about campaign flyers and the use of common sense when talking to a member of your household, for example your spouse or children. Chairwoman Giunchigliani agreed common sense needed to be used. Assemblywoman Leslie stated her understanding was that a vexatious comment used on a campaign flyer would constitute a need for a just and sufficient cause hearing and the only penalty listed pertained to a vexatious action. Mr. Scherer stated that was the only penalty he could find. She stated she did not approve of that portion of section 16. Assemblyman Beers agreed with Assemblywoman Leslie, as the First Amendment did not need to be modified. Both stated they would not vote against it, yet they did not think it was necessary. Assemblywoman McClain stated the main problem was the First Amendment had been modified too much. People did not want to test the First Amendment more than it had been. She felt the determination of facts should not be released until the Ethics Commission had determined a just and sufficient cause.

Assemblywoman Von Tobel felt the press very rarely wrote about something not known, in part, to be true. Chairwoman Giunchigliani clarified the only issue here was whether the complaint records should be released or not released until proven or determined meritorious by the Ethics Commission.

Mr. Scherer stated if language describing the release of information was added to a complaint form, some would not want to file a complaint. Mr. Lauer stated the person filing the lawsuit should not be prevented from notifying anyone, and such an amendment could have a chilling effect. Chairwoman Giunchigliani stated she understood. As a public legislator, her word and reputation were all she had. One of the reasons the word frivolous was not used was so the situation would be addressed. She asked Mr. Wasserman to look into the language.

Assemblyman Price asked if there was a formal procedure for withdrawing a complaint. Mr. Scherer stated no. He also stated once the complaint was filed, it was always on record, yet no action would be taken by the Ethics Commission. Chairwoman Giunchigliani stated language needed to be added about withdrawing a complaint. She asked Mr. Wasserman whether the Ethics Commission could create regulations for addressing the filing and withdrawal of a complaint. Mr. Scherer stated the governor would approve of such regulatory authority.

Assemblyman Perkins noted that most people who filed a complaint would be receiving an education about the process in the course of filing the complaint. He felt it was not normally the neighbor next door who filed the complaint; it was usually a friend of a friend. Chairwoman Giunchigliani stated the weeding out of the frivolous complaints would need to be examined in 2 years if not settled by the Ethics Commission.

Chairwoman Giunchigliani stated the proposed amendment to section 17 was the removal of language authorizing the Ethics Commission to appoint a committee counsel. Included would be language stipulating the counsel must be provided by the Attorney General and serve in a full-time capacity for the Ethics Commission.

She asked Mr. Wasserman to look into the language used to make sure it was legal and was parallel to the language in the previous section. Mr. Scherer suggested the Ethics Commission issue all opinions. He did not want the deputy attorney general to issue those opinions. Assemblyman Beers suggested the committee look again into the section about who formed the opinion with the counsel. Assemblywoman Von Tobel stated the Board of Regents had an independent counsel. Assemblywoman Leslie stated she felt the decision should be reconsidered, as there did not need to be two independent counsels making the decisions. Chairwoman Giunchigliani stated she would have Mr. Wasserman look at the language to see how it could be effectively drafted.

Chairwoman Giunchigliani stated the proposed amendment in section 22:

Assemblyman Beers was satisfied with the proposed amendment. He had wanted the timeframe of the allegation to be changed from what S.B. 478 had stated. Assemblywoman Von Tobel agreed with the proposed amendment. The original draft of the bill had stated 10 days from the date of election to file a complaint. The committee agreed with the proposed amendment.

Chairwoman Giunchigliani stated the other issues for discussion by the committee were:

Discussion by the committee pertained to the class E felony. Assemblywoman Leslie stated the Committee on Judiciary had recommended the class E felony allow a judge to sentence a person to 1 year in the county jail. In the past a person was sentenced to probation, not jail time. Assemblywoman McClain stated there was a request for an interim study on misdemeanors to evaluate the entire system. Current law stated a person could be sentenced for a misdemeanor, a gross misdemeanor, or a class E felony. Assemblyman Beers wanted to know if any felonies would not be punishable after the current session. Assemblyman Perkins stated there was no felony having mandatory probation. Chairwoman Giunchigliani stated in section 20, all of the protective rights of the criminal system were in effect. The requirements for being removed from office under certain circumstances were still in effect, and might be unconstitutional. The committee agreed a letter of intent should be sent to be able to resign office in section 20. In current law, the acceptance of honorarium constituted a misdemeanor and would become a gross misdemeanor.

Assemblyman Price stated he felt the Ethics Commission should not constitutionally have anything to do with the legislature. He suggested a legislator could file against another legislator and push to remove him or her from office. Assemblyman Dini requested from Mr. Wasserman some information regarding Assemblyman Price’s comment. Mr. Wasserman stated he would follow up the comments in a formal way, and noted the Legislative Counsel Bureau was concerned with the separation of powers between the legislative and the executive branches. One of the most protected activities included the law making process in the legislature. Many states had a provision in the state constitution providing immunity from whatever the state might do in the law making process. The states that did not have such a provision written in the state constitution had read it into their constitutions. Nevada and California did not have the provision written into the state constitution. According to the provision for ruling on matters for the legislature, Ethics Commission involvement would be found unconstitutional.

Chairwoman Giunchigliani stated the committee agreed section 19 would be amended to a gross misdemeanor, and in section 20 it would be kept as it was with a statement of legislative intent.

Chairwoman Giunchigliani stated the issue of disclosure as discussed in section 15, page 9, lines 4 through 8, specifically regarded the full nature and extent versus sufficient information of the disclosure. Chairwoman Giunchigliani asked Mr. Scherer what the reason was for taking out the old language. Mr. Scherer explained the reason the phrase "full nature and extent" was deleted was due to an actual event, whereby a person did not disclose all stock being held, nor abstain from voting, and was brought before the Ethics Commission. He expressed the rule meant the full extent of disclosure of everything would be required, not a partial disclosure. The reason for the deletion was to help inform the public. Assemblywoman Von Tobel called attention to section 15, page 9, lines 25 through 26. She expressed a concern regarding disclosure of a person who had already filed the information on the disclosure form.

Mr. Scherer stated the person could send a written statement to Legislative Counsel Bureau to update any changes in the status of the form, or disclose over and over again. If a legislator had a conflict, then he or she could abstain from voting. Assemblyman Perkins stated he disagreed with Mr. Scherer over the disclosure issue. He interpreted the section to mean votes were recorded one way or the other, either yea or nay, not the abstaining votes. He stated he had a right not to vote, and only he would need to answer to his constituents. Assemblyman Dini explained if there was an issue in the legislator’s district, the legislator personally did not want to get into the issues, the legislator did not vote. He wanted to know what the problem was. He stated in the 34 years he had been in office he was known for not voting on gaming issues 99 percent of the time. He felt no one should have to vote if they did not want to. He stated the only obligation he had was to the people who elected him and to the legislators with whom he served, not a line in the bill.

Chairwoman Giunchigliani stated the next issue for discussion was the possibility of expanding lobbyist reporting requirements to include expenditures made on behalf of the governor and his staff. The discussion might include the expansion of the report to other officers; language would be similar to Nevada Revised Statute 218.926. After discussion within the committee, the committee agreed to narrow language to require lobbyists to report expenditures made on behalf of the governor only.

Chairwoman Giunchigliani stated if Assembly Bill 130 did not pass in the Senate, part of the language in that bill would be placed into S.B. 478. She asked if there were any further questions or comments. Hearing none, she stated she would entertain a motion on S.B. 478.

Chairwoman Giunchigliani opened the work session on S.B. 531, and called on Mr. Wasserman to explain any amendments. There were no proposed amendments, so she stated she would entertain a motion.

Chairwoman Giunchigliani asked if there were any further questions or comments. Hearing none, the meeting was recessed subject to the call of the Chair at 9:22 p.m.

RESPECTFULLY SUBMITTED:

Jodie Van Wyhe,

Committee Secretary

APPROVED BY:

Assemblywoman Chris Giunchigliani, Chairwoman

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