The Committee on Government Affairs was called to order at 8:15 a.m., on Tuesday, February 9, 1999. Chairman Douglas Bache presided in Room 3143 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:

Mr. Douglas Bache, Chairman

Mr. John Jay Lee, Vice Chairman

Mrs. Merle Berman

Mrs. Vivian Freeman

Ms. Dawn Gibbons

Mr. David Humke

Mr. Harry Mortenson

Mr. Roy Neighbors

Ms. Bonnie Parnell

Ms. Gene Segerblom

Mr. Kelly Thomas

Ms. Sandra Tiffany

Ms. Kathy Von Tobel

Mr. Wendell Williams

GUEST LEGISLATORS PRESENT:

Assemblywoman Christina R. Giunchigliani, Clark County District No. 9

Assemblywoman Sharron E. Angle, Washoe County District No. 29

STAFF MEMBERS PRESENT:

OTHERS PRESENT:

After calling the meeting to order Chairman Bache announced the joint meeting with the Senate Committee on Government Affairs scheduled for Thursday afternoon was canceled. He opened the hearing on A.B. 62.

Assemblywoman Christina R. Giunchigliani, Clark County District No. 9, testified on the intent of A.B. 62. The legislation would ensure removal of obstacles to group housing by local zoning ordinances or special use permits. Further, it would set standards impeding concentration of those group homes in residential neighborhoods. The bill would prohibit group homes from required to be located in strictly commercial areas, which was in direct conflict with the Fair Housing Act. Finally, the bill would require the permit for the first group home in a neighborhood to be granted, but subsequent group homes would be required to be at least 660 feet apart.

Assemblywoman Giunchigliani quoted from a letter from Scott Wasserman, Chief Deputy Legislative Counsel, dated May 28, 1997, which addressed the validity of provisions of A.B. 118, a bill similar in content to A.B. 62. It was the opinion of Legislative Counsel that A.B. 118 did not violate the Fair Housing Act and the 660-foot restriction was legal. Since the two bills were similar, she felt Mr. Wasserman’s letter of May 1997 pertinent to the concerns of A.B. 62.

In discussing the issues addressed, Ms. Giunchigliani mentioned many of the problems faced in creating group homes for mentally retarded and senior citizens. Group homes were, she said, a wonderful alternative to nursing homes for older people and the mentally disabled, but those homes tended to "cluster" in older neighborhoods where real estate was less expensive. Per Nevada statutes, a group home intended to house three to six residents required licensing, but required only registration by the caregiver in homes for one to two residents.

Secondly, Ms. Giunchigliani continued, the bill removed the restrictions currently in place regulating group homes, set public policy more or less welcoming group homes, and allowed them to be located anywhere, but within reasonable standards. She felt the 660-foot factor was not unreasonable, but perhaps there was a better approach to the problem.

Assemblyman Humke said he had a client who was a provider of group home services to the Division of Child and Family Services (DCFS). The client, he said, dealt strictly with DCFS, not with local governments, thus lowering standards. The bill, he felt, would build in more local government regulations, and he questioned the need for those regulations in a statute.

In response, Ms. Giunchigliani reminded the committee local governments, already having the ability to institute ordinances, were discriminating against the locations of group homes by requiring inappropriate or burdensome special use permits, or tending to zone group homes into commercial areas. By setting a standard at the state level, a commonality or uniformity for businesses providing those services in all parts of the state would be in place.

In a memorandum to Chairman Bache, dated February 6, 1999 (Exhibit C), Assemblywoman Giunchigliani made several suggestions and amendments to A.B. 62. She said it was her intent to have the Legal Division affirm group homes run by or established on behalf of the state for mentally retarded or mentally ill were not subject to the 660-foot rule. Assemblyman Humke opined if the legislature were to "grade" the various disabilities, he would not be in favor.

Assemblywoman Freeman cited examples in her Reno assembly district, which was an older area. Because group home facilities were less expensive to buy and maintain, there tended to be more "clustering" of those in her district. Neighborhood residents were upset because of the special use permits required. She felt special use permits were badly abused at the local level since people living in a particular area often were not made aware of those until after the fact. She felt local governments had a right to review those permits, and also felt more study was required.

In response, Assemblywoman Giunchigliani said she would not support legislation that discriminated against any one group or body. That had arisen from constituent concerns that group homes be placed throughout neighborhoods, and that they were readily accessible. Older neighborhoods, she continued, tended to have services close by, such as supermarkets. To get rid of discriminatory practices such as requiring unreasonable special use permits was the first intent of the legislation. The second intent was to try to deal with the clustering issue.

In responding to a question from Assemblyman Lee, Ms. Giunchigliani addressed the ongoing problem of the state becoming involved in zoning issues. She explained the first group home requesting to be located within an area must be approved, which was in compliance with the Fair Housing Act. Then, she said, people would be assimilated throughout a neighborhood. Neighborhoods having group homes containing entirely mentally retarded or mentally disabled, or senior citizens, or foster care homes would be eliminated. There would be dispersion of those facilities throughout the community.

Assemblyman Lee asked if Ms. Giunchigliani felt cities and counties did not adhere to the Fair Housing Act, if she thought local governments could not be held accountable, and if the state had to establish mandates for compliance to the Act.

Ms. Giunchigliani responded in the affirmative. If a state policy for uniformity were set, she continued, legislative intent would be declared and local ordinances would have to comply with zoning. In that way, planning would be in compliance.

Assemblyman Thomas saw a problem with the Fair Housing Act requiring 660 feet between group homes. Ms. Giunchigliani replied she did not see the 660-foot language as a hidden special use barrier, but it was indeed a question that must be addressed.

Assemblywoman Segerblom asked about regulations in group homes with six residents or less. Assemblywoman Giunchigliani cited current problems regarding smaller group homes. She said in the smaller homes no rule existed except the home’s administrator was required to be registered. Quality of care of the residents of those homes was an issue that needed to be addressed.

Assemblyman Humke, discussing the vast array of local, state and out-of-state agencies providing group home care within Nevada, saw problems with the legislation as it was written. One bill, he said, had tried to deal with all of those agencies, all of those disabilities, and many local governments, and he felt that would lead to problems.

A state policy, assuring local governments get rid of antiquated ordinances, permits and placements of group homes, regardless of who was living in the homes, was very important, Ms. Giunchigliani said.

Citing the abuse and the overcrowding that was apparent in the smaller homes, Assemblywoman Freeman said there should be a policy mandating oversight to all care providers.

Assemblywoman Von Tobel wondered what would happen if two or three group homes opened without obtaining the proper licenses. "Would they put a lien on the property or force the eviction of the residents, or exactly what would a county do if three group homes did cluster together?" she asked.

Ms. Giunchigliani replied she did not have the answer, and the dilemma of group homes presently was the fact many unlicensed homes were opening. She mentioned a home for senior citizens in her district housing seven senior citizens with no supervisor. When she called to inquire about the home, she learned it was not licensed. The Division of Aging had simply sent the home a letter stating, "We hear you are not licensed. Let us know whether you are or not." It was those situations that needed to be addressed.

In conclusion, Assemblywoman Giunchigliani said she did not intend to promote legislation that could not be enforced or would create more problems than its original intent. The two issues at hand, she said, were the clustering problem and the assimilation problem.

Brian Lahren, Ph.D., Executive Director, Washoe Association for Retarded Citizens (WARC), and representing the Truckee Meadows Human Services Association (TMHSA), spoke in favor of A.B. 62. TMHSA, he said, was a northern Nevada association of between 45 and 50 human service agencies, and because he represented individuals with mental retardation, as well as agencies serving children and senior citizens, he was advocating the dispersion issue. He felt the registration of homes was good so long as the registrants were service providers, not disabled citizens themselves.

The real issue, Dr. Lahren continued, was the abysmal lack of supervision in those group homes. He wanted to work with Assemblywoman Giunchigliani on the legislation at hand, but felt he had to reserve judgement until a later time.

Assemblyman Humke asked Dr. Lahren if the legislation would benefit from a population cutoff, wherein counties with the standard population of about 400,000 or more, an "X" type of regulation was imposed, and in population areas of 400,000 or less, a different type of regulation was in force.

Dr. Lahren responded in rural areas of Nevada where suitable locations were difficult to obtain, exemptions should be granted. Citing NRS 278.021, which prohibited zoning, codes, covenants, and restrictions discriminatory to the location of any group home, he said the statutes worked quite well. He added there could be a need to create an exemption for smaller counties.

Chairman Bache then asked for testimony in opposition to A.B. 62.

Ms. Lucille Lusk, Nevada Concerned Citizens, felt when a significant change in a neighborhood was proposed, public hearings needed to be held. Local government processes, she continued, were the best way to allow local citizens to be made aware of proposed changes in their neighborhoods. She wanted to see the process of neighbor notification lengthened rather than shortened.

Assemblywoman Tiffany responded the process of public notification at the local level would be counter-productive in that it would "…drive the cities and the counties crazy."

Assemblywoman Freeman mentioned the neighborhood councils in Reno, which had appointed members. People living in specific neighborhoods could either approve or disapprove a proposed group home. Insofar as the public’s right to be involved, she said, it was a good place to involve the public in those decisions.

Ms. Lusk affirmed that neighborhood councils did exist in Las Vegas. But, if local government was not involved in the process, the neighborhood councils would not be informed and could not participate in the decisionmaking processes.

Edward R. Guthrie, Executive Director, Opportunity Village, Las Vegas, spoke at length against A.B. 62. Opportunity Village, he explained, was an association for retarded citizens in Las Vegas and one of the largest advocacy agencies for people with mental retardation. They also provided vocational training and employment services for people with disabilities. His group did not like co-location of group homes, or institutionalization of people with mental retardation. However, he continued, Opportunity Village feared lack of access to community placements because of the possible restrictions in the bill.

Mr. Guthrie referred the committee to the document, "The Impact of the Fair Housing Act on Land-Use Regulations Affecting People With Disabilities," published December 1997 by the Bazelon Center for Mental Health Law, Washington, D.C. (Exhibit D). Comparing the language of Section 1(b) of A.B. 62, "…Impede the concentration of group homes in a residential neighborhood…" and the third page of the handout (Exhibit D), Question 2, "May group homes be concentrated – or conversely, prohibited or restricted – in certain neighborhoods or zoning districts? Answer: No.", Mr. Guthrie opined the Bazelon Center held a very different view of the bill than did Ms. Giunchigliani.

There was a lack of affordable housing for people with disabilities in Las Vegas and Clark County, Mr. Guthrie continued. That was caused in large part because the disabled frequently made less than $6,000 per year and were receiving Supplemental Security Income (SSI) assistance. Mental retardation agencies budgeted approximately $300 per person per month for food and shelter subsidies for people in supported living arrangements, simply because there was no affordable housing for them

Mr. Guthrie made several suggestions:

1. The legislature should aggressively promote the development of affordable multi-family housing throughout the community.
2. Encourage local housing authorities to apply for Section 8 rental assistance subsidy certificates through the federal government.
3. Since most people with severe disabilities are on the low end of the poverty scale and have a 65 percent unemployment rate, the legislature should be encouraged to look at ways for providing jobs for these people.
4. Suggest the legislature set goals for state agencies encouraging them to purchase items from the community training centers that had been set up to provide training and rehabilitation for people with severe disabilities.

Assemblyman Humke inquired if the Bazelon Center was what might be known as a public interest law firm, and if the organization ever brought suits representing various persons with disabilities.

Mr. Guthrie replied affirmatively and explained the Bazelon Center, rather than instituting lawsuits, more frequently served as consultants to the local organizations bringing suits.

Assemblyman Humke cited the example of inmates of the state prison system who had brought suits through the federal courts, and the State of Nevada had entered consent decrees which were stipulations to make court cases go away. He likened that situation to so-called public interest law firms encouraging disability groups to bring suits against states, cities, and counties. "I just believe that’s not a path we wish to go down," he said.

In response, Mr. Guthrie mentioned several advocacy groups available to people with mental retardation, and that it was possible the Bazelon Center would act in a consulting capacity. "I don’t think the State of Nevada wants a federal judge dictating to it how to meet the needs of people here," he said.

Chairman Bache turned the meeting over to Vice-Chairman Lee.

Assemblywoman Tiffany said, while realizing the advocacy and interest of Opportunity Village was a noble undertaking, it was too complicated. Government, she continued, had the best intentions for legislation but was not always the best for residents and constituents. She mentioned several examples in her area where business people had used federal funds to buy residential properties, set up group homes, and then neglected the residents of the homes. "They left needles out on the streets," she said.

In answer to Ms. Tiffany’s concerns, Mr. Guthrie explained the fair housing amendments did not apply to people with disabilities caused by drug or alcohol abuse, or to senior citizens. They applied only to those people with disabilities. He concluded by assuring Ms. Tiffany and Ms. Giunchigliani he would work to encourage dispersion of those facilities throughout communities.

Vice-Chairman Lee closed the testimony on A.B. 62 and opened testimony on A.B.  66.

Assemblywoman Sharron E. Angle, Washoe County Assembly District No. 29, referred to her prepared statement (Exhibit E), describing A.B. 66 as "Whistleblower protection applied to contracted employees within the State of Nevada."

Citing examples of privatization and employment of independent contractors in Nevada, Ms. Angle stated A.B. 66 extended protections provided in Nevada Revised Statutes (NRS) 281.611 to employees from the private sector who worked for state government. A.B. 66 would prohibit retaliatory action against independent contractors who disclosed improper government action.

She then introduced her constituent, Mr. Larry Willis of Reno, NV, who read from his prepared statement (Exhibit F). In March 1994, Mr. Willis stated, he was employed at the Federal Courthouse in Reno as a Court Security Officer (CSO)/Special Deputy U.S. Marshall. He was an employee of General Security Services Corporation, Minneapolis, MN, which held the contract to provide security to the courthouse. During the time of his employment, he said, a "good old boy" system of hiring was in effect by the contractor, that no training of security officers was implemented, and after he reported those incidents, he was placed on probation and later terminated.

In October 1998, Mr. Willis continued, he contacted the Office of Special Council as to his protection under the law as a whistleblower. He was told on two occasions he was not protected, as he was not a federal employee. At the same time, the Attorney General’s office informed him he was not protected under Nevada law.

Assemblywoman Segerblom asked Mr. Willis if he had consulted an attorney specializing in discrimination cases. Mr. Willis replied affirmatively, and his present attorney was still working on the case.

Assemblyman Humke asked Ms. Angle to discuss how A.B. 66 would apply to state law.

Protections and rights to contract employees needed to be addressed, Ms. Angle said. She cited the example of the Nye County School District wherein all janitorial services were done by contract employees, and if an employee reported wrongdoing, he/she could have lost their job because of it. All Nevada citizens needed protection, not only those employed by state or local governments.

Mr. Humke replied as he read the bill, it would deliver rights to state contractors normally reserved for state employees, namely, the right to bring grievances before the State Personnel Commission, and asked Ms. Angle if that was her intent.

Ms. Angle responded in the negative and referred the committee to the text of A.B. 66, section 4, page 3, which stated, "Except as otherwise provided in NRS  218.5343 and 281.666 to 281.671, inclusive, an independent contractor is not in the classified or unclassified service of the state and has none of the rights or privileges available to officers or employees of the State of Nevada." She said she thought only the right to expose wrongdoing was protected.

Mr. Humke said he felt the bill, as written, while providing the desired whistleblowing legislation, would extend rights to independent contractors that were available only to state employees. He did not feel he could support the bill because there was a clear and complete mixing of the borderline between an employee and a contractor.

Jeanne M. Greene, Acting Director, State of Nevada Department of Personnel, in a prepared statement (Exhibit G) called the committee’s attention to the cost impacts of the legislation. Currently, she said, there were four hearing officers under contract with the Department of Personnel, to hear appeals related to demotions, suspensions, involuntary transfers and dismissals as well as claims of reprisal or retaliation under NRS 281.611, the current whistleblower law. These officers were paid $70 per hour from the Department of Personnel’s budget.

Forty-eight whistleblower cases were heard since 1991, she said, at an average cost per case of $1,781. That did not take into account the indirect administrative costs and witness and attorney fees, also incurred by the state.

Robert J. Gagnier, Executive Director, State of Nevada Employees’ Association, pointed out some existing problems. Under NRS 284.173, the state paid out hundreds of millions of dollars annually to independent contractors. As he read the bill, Mr. Gagnier continued, it used the term "independent contractor," not employees of the contractor, and he recommended the bill’s language be changed to provide protection for those employees as well. He said the funding for hearing costs came from assessments against agencies’ payrolls. The many contractors currently employed by the state would not pay into the fund unless the bill was modified.

Assemblyman Mortenson addressed the question of costs of hearing officers coming out of salaries of classified employees. If that was not so, he asked, would Mr. Gagnier be adverse to contractors having whistleblowing rights.

Mr. Gagnier assured Mr. Mortenson those hearing costs were not direct deductions from the salaries of classified employees. Rather, he said, each state agency was assessed a percentage of its payroll. If the same whistleblowing rights were extended to contractors, he said, an assessment of the level of their contracts should be paid to the Department of Personnel.

Assemblyman Humke questioned the accuracy of the fiscal note on the face of the bill. The fiscal note stated there was no effect on either local government, or the state or industrial insurance. Mr. Gagnier agreed with Ms. Greene the legislation would have a huge financial impact on state government, particularly the Department of Personnel. Mr. Humke posed an alternative whereby the contractors’ assessments be built into the level of their contracts with the state.

Assemblywoman Tiffany asked if labor laws distinguished between someone who owns a contracting business and someone working for that business. Could a contractor’s employee go outside the owner of the business and complain? Mr. Gagnier responded the state could not be concerned with whom the contractor hired to do the work in question. The state had no control over the contractor’s employees.

After some discussion, Vice Chairman Lee closed the hearing on A.B. 66.

Chairman Bache introduced BDR 58-947.

Chairman Bache announced that a subcommittee would be formed for further study on A.B. 62.

The meeting was adjourned at 10:05 a.m.

RESPECTFULLY SUBMITTED:

Charlotte Tucker,

Committee Secretary

APPROVED BY:

Assemblyman Douglas Bache, Chairman

DATE: