The Committee on Judiciary was called to order at 8:15 a.m., on Wednesday, April 14, 1999. Chairman Bernie Anderson 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:

Mr. Bernie Anderson, Chairman

Mr. Mark Manendo, Vice Chairman

Ms. Sharron Angle

Mr. Greg Brower

Ms. Barbara Buckley

Mr. John Carpenter

Mr. Jerry Claborn

Mr. Tom Collins

Mr. Don Gustavson

Mrs. Ellen Koivisto

Ms. Sheila Leslie

Ms. Kathy McClain

Mr. Dennis Nolan

Ms. Genie Ohrenschall

STAFF MEMBERS PRESENT:

OTHERS PRESENT:

Walter Tarantino, Representative, Nevada Corrections Association

Ed Flagg, President, Nevada Corrections Association

Linda Avilla, Correctional Office, Nevada Department of Prisons

Bob Bayer, Director, Nevada Department of Prisons

Bob Romer, Senior Employee Representative, State of Nevada Employee’s Association

Scott Anderson, assistant to the Secretary of State

Jim Nadeau, Captain, Washoe County Sheriff’s Office

Keith Carter, Sergeant, Las Vegas Metropolitan Police Department

Anne Cathcart, Special Assistant Attorney General, Nevada Attorney General’s Office

Following roll call, Chairman Anderson announced S.B. 62 would be rescheduled, and opened the hearing on S.B. 149.

Ed Flagg, president, Nevada Corrections Association, introduced S.B. 149. Mr. Flagg said S.B. 149 was in effect a "gassing" bill. "Gassing" was the practice of an inmate throwing feces, urine, or semen on correctional officers.

Linda Avilla, correctional officer, Nevada Department of Prisons, testified she had been a correctional officer for 11 years and at Ely State Prison since June, 1989. In January 1998, a prisoner in the full advanced stages of AIDS propelled a container filled with urine, feces, and other matter into Officer Avilla’s face. Officer Avilla was hit with the material in the nose, mouth, ears, and down the entire front of her body. That happened not once, but twice. The second time she was hit was through a food slot door in the infirmary where the inmate was in a restricted cell because he had been acting out. The inmate had property in his cell which was not allowed and the incident took place when Officer Avilla attempted to remove the property.

For 6 weeks Officer Avilla took three different medications which made her very sick, one of which was AZT. Officer Avilla said for the next 10 years she would be waiting for the possibility of resulting AIDS infection. There was nothing in statute to protect corrections officers from incidents such as the one she experienced. A dog had more laws to protect them from abuse. Officer Avilla said she was 54 years old and single, and she felt she would remain that way. To have a personal life was now out of the question. She urged the committee to pass S.B. 149.

Walter Tarantino, representative, Nevada Corrections Association, said S.B. 149 revised two sections of the Nevada Revised Statutes. Section 1 of the bill addressed chapter 209 and section 7 dealt with chapter 212 of the Nevada Revised Statutes. Current law stated if an inmate confined to disciplinary segregation committed an assault on a correctional officer he or she was still able to earn 10 good-time credit days per month. Section 1 of S.B. 149 would change the law to reflect that inmate would not continue to accrue good-time credits. No good-time credits previously earned would be removed. There would be no loss of property or interference with due process. Section 7 of the bill dealt more specifically with events such as those to which Officer Avilla testified. If an inmate propelled bodily fluids or such liquids on an officer, fellow inmate, visitor, or other person, several actions would be mandatory. There would be an investigation, which was not currently mandated, and a report would be taken. Secondly, the governmental entity would be mandated to refer the results of the investigation to the prosecutorial body of the district in which the incident took place. Once the referral was made, it became discretionary on the prosecutorial body as to prosecution of the offense.

Mr. Tarantino said the proposed protections were the minimum needed to safeguard correctional employees in the performance of their duties. S.B. 149 also mandated the governmental entity must incur costs of examinations and testing of any employee or other person affected by such an act.

Chairman Anderson commented A.B. 483 dealt with a similar situation relative to procedures. S.B. 149, unlike A.B. 483, seemed to be directed particularly to correctional officers. There was a fiscal note for both the State Industrial Insurance System and local governments. He asked for the amount the fiscal note.

Ed Flagg said he was not given a fiscal note. Chairman Anderson said the amount was $10,000 for the first year and then $3,500. It was anticipated the fiscal impact would be $3,000 per year after that which seemed a minimal amount for such protection.

Assemblyman Carpenter asked what amount of good-time credit was given to the inmates.

Chairman Anderson conveyed his concern to Officer Avilla for her suffering and commended her for her special ability to do the work she did. He expressed hope the committee could address at least part of the problems she and other faced.

Bob Bayer, director of prisons, Nevada Department of Prisons, testified in support of S.B. 149. Mr. Bayer said he had not testified in front of the Senate and did not wish to convey disregard for the issue. He was concerned originally with possible constitutional problems in S.B. 149 but having spoken with the Attorney General’s Office, he was assured there were no problems in that area.

Mr. Bayer explained good-time credits were removed from an inmate after commission of an act such as assault, but the inmate was not barred from earning future credits. There was a provision in statute to return good-time credits once removed, but it was rarely done. Mr. Bayer told the committee a referral to prosecutors was made in the case of Officer Avilla and he was very angry at the event. Personnel should not be subjected to such risks. The introduction of diseases which were not a part of the structure 20 years ago created health issues which had not previously been at issue. Mr. Bayer wanted to make clear to the committee measures such as those in S.B. 149 were necessary for the health and morale of prison employees.

Chairman Anderson commented Assemblyman Carpenter’s question asked for clarification as to how good-time credits were earned so the committee had a better understanding of what was at stake.

Mr. Bayer explained there were several ways to earn good-time credits. One way was called statutory good-time, meaning for every month of time served, the inmate received a certain amount of credit to be taken off at the end of the sentence. Nothing could change the minimum time of a sentence except good-time, and work credits of 10 days or up to 20 days a month if the inmate worked in a fire fighting camp or a restitution center. Once earned, work credits were not subject to forfeiture. Statutory good-time credits could be forfeited for such things as assault. A guideline was in place to determine the number of good-time days to be removed for a certain offense. That time was then added to the end of the sentence, which in fact lengthened the maximum sentence of an inmate. Once those good-time credits were removed, the inmate started over with the opportunity to earn credit. S.B. 149 would assure no good-time could ever be earned as long as an inmate was under any type of disciplinary sanction.

Chairman Anderson said he understood at present good-time credit could be earned even under disciplinary sanction, and that it was possible to lose only a portion of the credit for infractions. It was possible for an inmate to come out even, as far as losing and then earning good-time. Mr. Bayer agreed the analysis was correct in that there were reduced opportunities to commit infractions.

Chairman Anderson asked what determined the amount of good-time that could be earned. Mr. Bayer responded he would provide the formula to the committee.

Assemblyman Carpenter asked if good-time credits applied to residential confinement. Mr. Bayer replied such was the case, and residential confinees were similarly subject to forfeiture.

Assemblyman Collins commented the lack of discipline of prisoners equated to the lack of discipline on schools and throughout society. He wondered if there was not a way to restrain inmates who acted out in such a manner. Mr. Bayer explained there were certain sanctions imposed for certain infractions. However, restraints were used in very rare circumstances, such as if the inmate was suicidal or threw furniture. Isolation was a measure that could be and was used on occasion.

Bob Romer, senior employee representative, State of Nevada Employee’s Association, testified in support of S.B. 149. Mr. Romer said prior testimony was an excellent picture of what was happening, and he strongly urged passage of the bill. Mr. Romer said he had spent a great deal of time as a correctional officer in the state prison system and had seen many changes in the relationship between officers and prisoners. He had been attacked himself many years ago and there was a reluctance on the part of the Attorney General’s Office to prosecute, as though no one cared. The situation had become very serious with the possibility of contracting such diseases as AIDS or hepatitis C. He strongly urged passage of S.B. 149.

Jim Nadeau, captain, Washoe County Sheriff’s Office, testified in support of S.B. 149. Captain Nadeau told the committee the actions of inmates as presented were absolutely despicable and did not just happen in the prison system but in local county facilities as well. Captain Nadeau said he had asked to be heard when the bill went to the Senate. He felt no amendments were necessary to the bill since chapter 212 of the Nevada Revised Statutes appeared to include all the facilities involved.

Keith Carter, sergeant, Las Vegas Metropolitan Police Department, supported S.B. 149. He agreed with all prior testimony as to the importance of the bill.

Anne Cathcart, special assistant attorney general, Attorney General’s Office, supported S.B. 149. Ms. Cathcart said she testified in favor of the bill in the Senate. She had spent 6 or 7 years representing the Department of Prisons and its employees in litigation filed against the department by inmates, and was often struck by how many times officers were the victims of propelling fluids. Under the confines and constrictions of the constitution, the only thing that could be done when an inmate committed such offenses was to put them through the disciplinary process where they were entitled to a hearing. Options for punishment were limited. In the case of Officer Avilla, the inmate who propelled the substances had been previously prosecuted by the Attorney General’s Office for the same conduct. S.B. 149 would allow any inmate found guilty of such conduct to be sentenced concurrently with the existing sentence. In addition, S.B. 149 would help the attorney general when prosecution referrals were made in that it would encourage preservation of evidence. More often than not, evidence was not preserved. Ms. Cathcart assured the committee the attorney general through the Criminal Justice Division did prosecute such cases.

Ms. Cathcart said the good-time credit portion of the bill was very important in that it had been her experience inmates only responded to that kind of discipline.

Chairman Anderson commented sections 4 to 6 of S.B. 149 referred to good-time credit for prisoners who completed drug or alcohol abuse and vocational education programs. He asked if the opportunity to award good-time credits was being added in those cases. Mr. Bayer responded he did not find anything in the bill which would add to good-time beyond the present scope of what was allowed.

Assemblyman Carpenter stated he wished to reiterate the necessity for passage of S.B. 149. Assemblywoman Ohrenschall agreed, and added the public health issue mandated passage of the bill.

ASSEMBLYMAN CARPENTER MOVED TO DO PASS S.B. 149.

ASSEMBLYWOMAN ORENSCHALL SECONDED THE MOTION.

MOTION PASSED UNANIMOUSLY.

There being no further business before the committee, Chairman Anderson closed the meeting at 9:05 a.m.

RESPECTFULLY SUBMITTED:

Lois McDonald,

Transcription Secretary

______________________________

Chris Casey,

Committee Secretary

APPROVED BY:

Assemblyman Bernie Anderson, Chairman

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