The Senate Committee on Government Affairs was called to order by Chairman Ann O'Connell, at 2:06 p.m., on Monday, March 1, 1999, in Room 2149 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

COMMITTEE MEMBERS PRESENT:

Senator Ann O'Connell, Chairman

Senator William J. Raggio, Vice Chairman

Senator William R. O’Donnell

Senator Jon C. Porter

Senator Joseph M. Neal, Jr.

Senator Dina Titus

Senator Terry Care

STAFF MEMBERS PRESENT:

Angela Culbert, Committee Secretary

OTHERS PRESENT:

Chairman O’Connell opened the meeting asking for testimony on Senate Bill (S.B.) 215.

William E. Isaeff, Lobbyist, City of Sparks, stated S.B. 215 seeks to make various changes to the Charter of the City of Sparks. He explained the Sparks City Charter provides for a charter review committee to meet prior to each session of the Nevada Legislature to review the charter provisions for any necessary amendments. Prior to the 1997 Legislative Session, he noted, the review committee indicated a strong desire to review Article IX of the Sparks City Charter dealing with civil service, and they scheduled this review to take place prior to the 1999 Legislative Session. The committee found a number of provisions, he noted, to be recommended for possible amendment. He said the process included notifying all employee organizations of the proposed changes and inviting them to attend meetings to participate in crafting the legislation. All of the employee organizations, he remarked, accepted the invitation, and he listed those present. Mr. Isaeff pointed out two members of labor organizations serve on the charter committee. He stressed the city tried to be as inclusive as possible between management and labor on these issues.

Mr. Isaeff stated the first section of the bill reflects a technical adjustment, changing the word "counsel" to "council." Section 2 of S.B. 215 allows the civil service commission to adopt regulations to extend the probationary period for sworn fire suppression and sworn police department employees to 18 from 12 months. This would, he noted, provide more time to adequately evaluate the on-job performance of these employees as they spend so much of the first year in training. He said both the police chief and the fire chief have told the charter committee and the Sparks City Council of the difficulty of evaluating job performance of these employees because of the great amount of time spent in training. He noted these recommendations were unanimously approved by the Sparks City Council. The proposal, he explained, would allow regulations to be adopted by the civil service commission, stressing this is not a self-executing provision. It would, however, allow the civil service commission to revisit the topic and go through a formal hearing if empowered to do so by the Legislature.

Mr. Isaeff continued, explaining section 3 of the bill would be amended to add subsection 3 to allow the granting of additional points to persons employed in a temporary capacity in a position for which an examination is being given. He said this provision would be, as established by regulations, adopted by the civil service commission. Mr. Isaeff pointed out there are often temporary employees for whom a great deal of time and effort has been spent in training. He said it was decided to be in the city’s best interest, if the civil service commission concurs, that additional points be given to temporary employees for an examination. He noted it is not unusual for people to get additional points for certain types of status, recognizing the state provides extra points for veterans of the military service.

Mr. Isaeff stated the civil service commission would be allowed to clarify that promotional examinations may be restricted to a single division or divisions within a department as set forth in section 4 of the bill. He said the language in subsection 5 of section 4 would restrict the provision to those sworn employees of the fire suppression division and police departments rather than pertain to the entire fire and police departments.

Chairman O’Connell questioned in section 4, subsection 3 of S.B. 215, the reason "civil service" had been removed. Mr. Isaeff said this change had been made by the Legislative Counsel Bureau in order to make it conform to current statute.

Mr. Isaeff explained the charter had been amended down to the division level, and gave the fire department as an example. Within the fire department, there is the fire suppression division and the fire prevention division. He pointed out the job qualification for the assistant fire marshal requires the applicant to have served 3 of the last 5 years in the fire prevention division of the City of Sparks Fire Department. No member of the fire suppression division qualified for this opening; however, current regulations require the city to make it a department-wide promotion effort and open up testing to fire suppression officers although they would not be able to meet the qualifications. He gave another example concerning the public works department in which there are 11 different divisions with widely varying activities, professional backgrounds, experience and qualifications. Mr. Isaeff stressed allowing unqualified employees to sit for exams costs the city time and money. The provision would allow for the ability, through civil service commission regulation amendments, to limit promotions to the division or divisions with the properly qualified personnel.

Mr. Isaeff drew the committee’s attention to the proposal in section 6 of the bill. He clarified in those cases where an employee has been the subject of dismissal, demotion, or suspension and he or she chooses to pursue an available grievance procedure rather than an appeal to the civil service commission, the commission appeal will be considered waived. He stressed no one should be allowed to take two remedies at the same time for the same dismissal, demotion, or suspension. Mr. Isaeff said this provision asks the employee to make a choice between pursuing appeals rights through the civil service commission or through a grievance procedure under the contract. If someone could pursue both avenues, he pointed out, there could be inconsistent results.

Mr. Isaeff called attention to section 7 of S.B. 215 that would change "portion" to the plural "portions."

Senator Neal questioned section 5, subsection 1 of the bill in which there was a change to 45 calendar days from 30 calendar days.

Mr. Isaeff responded the city manager believes certain circumstances could justify a longer penalty as opposed to a complete dismissal of the employee. He indicated the city manager’s current choices include suspension or dismissal. It was believed some situations are egregious enough to warrant a longer suspension without termination of the employee. He noted the intent was to attempt to make "the penalty fit the crime."

Senator Neal questioned the change to section 5, subsection 3 of the bill in which the word was changed from "may" to "must." Mr. Isaeff replied the change had been made by Legislative Counsel Bureau in drafting the legislation.

Chairman O’Connell questioned whether there was uniform agreement to the change to section 6, subsection 2 of the bill in which the employee must make a choice between grievance procedures. Mr. Isaeff indicated there had been negotiation on all of the amendments with the union representatives present. He stated compromises had been made, and to his recollection, this change was deemed appropriate by all parties.

With no further testimony, Chairman O’Connell closed the hearing on S.B. 215 and opened the hearing on S.B. 217.

Ivan R. Ashleman II, Lobbyist, Clark County, distributed an article to the committee on mitigation banking (Exhibit C). He explained water must be saturating a root zone for at least 2 consecutive weeks during a growing season in order to be considered a wetland. He stated wetlands create difficulty when they stand in the way of development because the developer must have an approved mitigation plan, often causing delay in the process. He said Clark County has wetlands which they would like to fix, restore, or improve. The federal government allows the creation of a wetlands bank, Mr. Ashleman noted, from which federal credits can be obtained from improvements and can be sold. He maintained the proposal to be a "win-win situation," because although a developer may still have to pay for the bank, it would solve both the county’s and the developer’s problems.

Chairman O’Connell questioned whether this provision was similar to the legislation concerning the Desert Tortoise and asked whether this proposal was a federal requirement. Mr. Ashleman said the wetlands problem arises because of federal litigation, though unlike the Desert Tortoise situation, no one is required to participate in Clark County’s proposed program. The developers can instead deal with the federal government and develop their own mitigation plan, he explained. He referred to the article on mitigation banking (Exhibit C), stating these programs do not have to be public as there are situations in which one set of builders are building wetlands in order to sell the rights to other sets of builders. This option, he stated, can be a private or a public program.

Chairman O’Connell questioned whether the reason behind the legislation was because so much property has to be dedicated to mitigation-banking projects in the Clark County areas when relocating wetlands.

Bruce L. Sillitoe, Principal Parks Planner, Clark County, indicated the reason Clark County Parks and Recreation is interested in the program is because they have a project in the Las Vegas Wash wetlands area. He stressed the opportunity exists to make a larger area, thereby creating some economies of scale in that area. He explained the proposal would allow an option to be available for private or public developers concerning requirements to mitigate impacts to wetland areas.

Mr. Sillitoe read from a prepared testimony (Exhibit D), emphasizing S.B. 217 is enabling legislation to allow boards of county commissioners throughout the state to establish, use, and operate wetlands mitigation banks. He explained mitigation is an existing federal mandate though the wetland bank is not federally mandated. A wetland, he pointed out, is defined under the Clean Water Act.

Mr. Sillitoe explained options are limited for complying with the mandate requiring wetlands to be replaced if destroyed. He cited an example in which a mitigation project was required, noting the federal government requires compensation for more land than was destroyed. The development project, he pointed out, was postponed for 2 years until a mitigation project could be found. He stressed S.B. 217 would eliminate these types of problems. Mr. Sillitoe indicated the parks department has requirements in creating the Wetlands Park, and is interested in providing options to meet their mitigation needs as well.

Through this proposal, Mr. Sillitoe explained, the counties can create wetland areas in advance of development actions and can be provided credits as a result. He indicated private or public developers would then be able to purchase credits provided by the county’s mitigation bank. He stated the proposal would provide a "market-based alternative to an existing federal mandate," with it being carried out in "an environmentally preferred manner."

Chairman O’Connell questioned whether this was similar to projects in any other counties or states. Mr. Ashleman stated currently a large number of private entities have these projects. Though some local entities do this around the country, he noted, it is not generally done at the state level as it is a "home-rule" issue in most places. He said this program is implemented to improve local projects and to allow opportunity for the local developers. He drew attention to Exhibit C which provides examples of the kinds of projects taking place.

Senator Titus stated she did not like the notion of credits because credit trade is done with air pollution without great results. She asked for some guarantee the proposal would use credits to solve the problem and save wetlands.

Brenda Pace, Administrative Director, Center for Natural Lands Management, said they have been working with Clark County Parks and Recreation regarding the mitigation bank in this area. She explained the center manages approximately 45,000 acres of wetlands and endangered species habitats, among which 3 mitigation banks exist with a couple more in progress. She indicated studies of their own projects and studies by the U.S. Fish and Wildlife Service show larger projects to be more biologically feasible and defensible than smaller projects. Mitigation banks are generally larger projects, she explained, although individual projects done by developers are done commensurate with the damage done by the development project despite the size. She stressed the difficulty of defending the biological resources of 3 to 5 acres in comparison with 40 to 200 acres, stating larger areas were more economically feasible as there are tremendous economies of scale in the conservation business. Ms. Pace maintained the desire to bring a more business-like attitude towards conservation as it needs to be efficient and effective, stressing mitigation banks help to answer this need.

Senator Neal clarified the proposal would authorize the board of county commissioners to establish, by ordinance, the wetland mitigation bank. Mr. Ashleman concurred. Senator Neal questioned the particular wetlands the bill would be directed towards.

Mr. Sillitoe replied the bank in Clark County would be established within the boundaries of the Clark County Wetlands Park within the Las Vegas Wash.

Prompted by Senator Neal, Mr. Ashleman indicated the proposal would help restore the wash as it previously had far more extensive and densely populated wetlands. The intent, he recognized, would be to repair the wetlands and make them function as they once did on a plan approved by the federal government. Mr. Ashleman stated the improvement of that acreage would generate credits. He said by working on the project in advance, the county would be ahead in the repair process, generating credits as the improvements are made and selling them off at a later date. He stressed there would be no development in the wash at all. He provided the committee with an example in which a developer wanted to build in a place where a wetlands area existed. Whether a natural wetlands or one created by construction, diversion, or changes in flood zones, the federal government currently mandates the developer to mitigate acreage comparable to the area built upon. He explained if a developer did not have a large enough parcel, he or she would not have any place to put the mandated wetland acres and would have to buy these credits somewhere. He mentioned the credits do not have to be purchased locally, but S.B. 217 would provide the option of buying the credits locally while improving the wash more rapidly.

Senator Neal questioned the connection between the mitigation bank and development. Mr. Ashleman said the only connection would be financial, because if a developer wanted to, he could buy credits in the mitigation bank. Senator Neal questioned what the mitigation bank did for the developer. Mr. Ashleman said the mitigation bank would save the developer time as the bank is prequalified so the developer does not have to develop his own individual plan for each credit needed. Mr. Ashleman recognized the developer would be able to purchase credits already approved, noting the approval process can take 6 months to 3 years.

Ms. Pace stated the regulatory agencies, U.S. Fish and Wildlife Service and the Corps of Engineers, approve the bank for mitigation. Therefore, a developer who must mitigate under the Clean Water Act, can either do so independently or go to the preapproved bank to satisfy his mitigation requirements. Prompted by Senator Neal, Ms. Pace explained the Corps of Engineers and the U.S. Fish and Wildlife Services agree upon a certain number of conservation credits at the bank by evaluating the wetland and habitat characteristics of the property. When the developer comes in with a project, the regulatory agencies determine the amount of habitat being impacted and set the requirements for the amount of land which the developer must mitigate. Once the mitigation is provided in accordance to the project, the permit to build can be issued. She explained the proposal would allow the option that upon the approval of the bank, the developer can purchase the amount of land in which it was determined he must mitigate for issuance of the permit to build. This measure, she added, would be a much simpler alternative for complying with the federal regulations.

Ms. Pace told the committee the bank would make it a lot less expensive and time consuming for the developer. She listed the procedures to be followed if a developer designed his own mitigation project. She stated the project must be approved through the federal analysis determining the amount of mitigation needed; the project must be designed and a location found; the project must be built; and the project must be monitored for 3 to 5 years to prove to the government agencies that it is an effective wetland. She stated if a bank is available and the developers do not want to go through the lengthy process, they would be able to pay the county for credits already earned.

Senator Neal questioned how the proposal served the public purpose. Ms. Pace stressed the measure would have great benefit to many parties in the process. She said economic growth can continue, while the conservation efforts were better than before as the larger banks are more biologically defensible. The resource agencies, she maintained, are much more confident in the community and the way the conservation responsibilities are being handled. With increased wetlands come better storm-water drainage systems, groundwater recharge systems, water-filtration systems and recreation out of the mitigation bank. These services provided by wetlands, she explained, would otherwise have to be paid for out of other agency budgets rather than part of the process.

Chairman O’Connell questioned with regards to Mr. Sillitoe’s example provided in his prepared testimony (Exhibit D), how long the permit issuing process has taken. Mr. Sillitoe said this project has been at least 3 years in the process. He explained because the developer did not buy from the bank, he was still responsible for the typical 3 to 5 years to ensure the effectiveness of the project. He noted if the project did not perform as the agencies would like, they would be responsible for another 3 to 5 years until it did perform.

Senator Titus said it had been mentioned this would allow the developer to keep the conservation efforts at home instead of going elsewhere. She questioned whether the developers would be able to go somewhere else and buy credits from another bank.

Ms. Pace responded the resource agencies have limitations on how far away a project can be developed as well as the kind of habitat which can be purchased. She said they would not be able to go out of state unless the project was next to the state line. She said the area requirements depend upon whether the habitat matches and if the project is deemed good.

Senator Titus questioned whether Clark County was under pressure of mandate to take care of the Las Vegas Wash. Mr. Sillitoe indicated the county was mandated to implement the Clark County Wetlands Park master plan, stating part of the early planning process was to look at the possibility of creating a portion of that as a wetland mitigation bank. Currently, he said, there is a finalized environmental impact statement which also addresses a wetland mitigation bank within that area.

Senator Titus said Clark County’s support indicates the willingness to "write off" all the other wetlands around the area so money could be received to clean up the wash.

Mr. Ashleman maintained there are not many large wetland areas in Clark County. He recognized small parcels exist which do not have any particular biological use, noting not every developer will participate in the program. He said it would be trading off a valuable wetlands area for one far less valuable. The federal government mitigation requires ratios, he explained, so more land will have to be restored than is being saved.

Senator Titus clarified if a developer gives the bank $200,000 for the number of credits they need, the money would all go into restoring the wash. Mr. Ashleman indicated this to be correct.

Senator Porter recognized the wash is currently a project of high priority. Mr. Sillitoe concurred this was of the highest priority for Clark County. Senator Porter said all of the money going to the bank would remain in Clark County rather than going to federal agencies or outside interests. Mr. Sillitoe confirmed this to be true. Senator Porter maintained the Las Vegas Wash has been an overlooked area for many years due to lack of coordinated protection effort. Mr. Sillitoe agreed this important resource had been overlooked in the past. Senator Porter said this is a high priority for many reasons, but more importantly, it is "the right thing to do." He indicated numerous coffer dams need to be built and the erosion of the wash needs to be stopped which adds to the water quality at Lake Mead.

Senator Porter stressed this is a huge undertaking and questioned the cost of the project. Mr. Sillitoe indicated he had heard quotes on the cost of the project as high as $100 million. Senator Porter said, "This is a very major area of concern for the whole valley. I wanted it to be on the record that it would not be limited to this, but right now that [the wash] is the priority. Correct?" Mr. Sillitoe replied, "Absolutely."

Chris D. Weiss, Lobbyist, Southern Nevada Water Authority, testified in support of S.B. 217 and of the previous testimony, stating they have an interest in restoring the Las Vegas Wash and seeing Clark County’s Wetlands Park Project move forward. He suggested this would give the county an additional tool in meeting some of those goals. He explained they have been working with the county and a number of other agencies on more long-term issues related to restoration of the wash.

Senator Neal questioned the reason it would be necessary to have the bill become effective on passage and approval. Mr. Ashleman indicated there was no particular reason other than this project should have been undertaken years ago. The sooner the project is started, he stated, the more money the county will have, and the faster it will be restored.

Senator Porter stressed this project to be of regional significance discussed in-depth by the planning authority and was taken on as a major priority in need of regional coordination.

Senator Titus questioned whether the planning authority recommended passage of the proposal. Senator Porter answered the planning authority did not present the specific recommendations but discussed it in meetings as a priority in the strategic plan.

Marta Golding Brown, Lobbyist, City of North Las Vegas, said the wetlands mitigation and coordination efforts were a part of the discussion at several committee meetings.

Mr. Weiss recalled the strategic planning authority’s recommendation to develop a comprehensive plan for management of the Las Vegas Wash. He said this specific legislation was not cited in the recommendations, though creating a multi-agency effort to address this issue was endorsed by the strategic planning authority.

Elizabeth N. Fretwell, Lobbyist, City of Henderson, said the wetlands mitigation bank, in and of itself, was not included in the Southern Nevada Strategic Planning Authority’s final plan. She stated the wetlands mitigation bank is a good idea, confirming the developer cited in previous testimony was from the City of Henderson and had no avenue to pursue his project. This developer, she explained, has since been on a continuous hold, noting his project will probably not go through. She maintained the proposal would have provided another opportunity to address this issue locally.

Mr. Isaeff stated for the record:

Jack Kenny, Lobbyist, stated he was a licensed contractor in the State of Nevada starting in 1960. He suggested the idea regarding the upkeep of the wash to be meritorious; though he maintained, the bill was not limited to the Clark County wash. He expressed concern regarding the broad definitions in the bill and the power the government would have in terms of stopping growth. He restated the bill was written so broadly that super power would be given to a lot of communities. He suggested the proposal should have a sunshine provision so it could be reviewed at the next legislative session. He said the only example provided to the committee was in regards to a developer who was building on land he probably should not have been building on in the first place. He pointed out the broad definitions in the proposal, stating the term "periodically deficient" in section 1, subsection 3, paragraph (b), subparagraph (2) of the bill, was subjective. He suggested the definitions be reviewed due to vagueness. He expressed support for taking care of the wash, but indicated the proposed measure needed modification.

James J. Spinello, Lobbyist, Clark County, indicated he would like the opportunity to respond to the questions raised.

Ms. Pace said the objection made was a misinterpretation of the legislation’s intent. She said it would not remove any of the powers of the federal agencies to the county. The county, she pointed out, has no new powers, and all the judgements pertaining to the definitions as set forth in the bill still belong to the U.S. Fish and Wildlife Service and the Corps of Engineers.

Chairman O’Connell indicated these definitions did not exist in statute, but were guidelines. She said in all instances, the federal government’s definitions would be used. Ms. Pace concurred.

Doug Busselman, Lobbyist, Nevada Farm Bureau, testified the issue of definitions was of concern. He expressed neither support nor opposition to the bill as a whole, but stressed the Nevada Farm Bureau does support the definition of wetlands in S.B. 217 which follows the federal definition. He said there are many times attempts are made to broaden the definition of wetland. He reconfirmed any amendments to the definition would be of concern.

Prompted by Chairman O’Connell, Mr. Busselman stated as long as the language follows what is presently in the bill, they are comfortable with the definition. He noted the definition was taken out of the regulations for the Clean Water Act as well as the 1985 Farm Bill.

Chairman O’Connell stated for the record, "I think that is very important information to have included specifically in the minutes, that should we pass this bill, that it is the Legislature’s understanding that the interpretations or the definitions used by the federal government are what would be applicable in this case—the definition of wetlands."

Chairman O’Connell closed the hearing on S.B. 217 and asked for testimony on S.B. 229.

Robert Bayer, Director, Department of Prisons, testified in support of S.B. 229, explaining the measure would allow the expansion of the law enforcement powers of the current prison system staff. Presently, he said, the staff members are Category III officers as set forth in the Nevada Administrative Code (NAC), noting this refers to the level of training. He pointed out the interpretation of this has been a problem because although they are law enforcement peace officers in the state, they are unable to make an arrest in such cases as arise on institution grounds. He said their peace officer status has been narrowly interpreted to apply only to the inmates and not to the public who, for instance, may be caught with drugs on prison property. He asserted this interpretation confuses their ability to conduct investigations. He noted currently they have investigators on staff who are considered Category I, stressing it is difficult to recruit police officers from the Nevada Division of Investigation's hiring list because they are considered two different kinds of peace officers when working for the prisons.

Mr. Bayer explained the bill would allow the director of Department of Prisons to identify individuals in the prison system as either Category I, Category II, or Category III peace officers.

Senator Raggio clarified presently all peace officers in the Department of Prisons are designated Category III. Mr. Bayer confirmed this to be true. Senator Raggio questioned the distinction between categories. Mr. Bayer explained in NAC, Category III status has been reserved for detention officers and prison officers, noting this status is described as "peace officers in those matters related to inmates." He said the training level is a minimum of 160 hours versus the 200 hours required for a Category II and the 480 hours required for a Category I status. He indicated the determination of a Category III could be interpreted to mean anything dealing with inmates, stressing if a visitor is bringing an inmate drugs, the officers should have the ability to make a proper arrest on prison grounds. Mr. Bayer noted this cannot be done because anything dealing with anyone outside of an inmate, has to be handled by another law enforcement agency. He pointed out the investigators do a lot of investigating outside the prison system as they follow up leads, stating they work with various agencies but their "hands are tied" out in the field.

Chairman O’Connell indicated two other bills are before the committee concerning similar issues, and indicated action was being held until the discussion of this measure. She questioned whether Mr. Bayer was familiar with S.B. 68 and S.B. 183.

Mr. Bayer indicated he was unfamiliar with the proposals. Chairman O’Connell requested he review those bills and provide the committee with feedback as it pertains to the necessity of all three pieces of legislation.

Senator Neal clarified employees of the prison can only detain individuals suspected of carrying drugs who are not inmates. He questioned what Mr. Bayer would like to do other than detain these people, noting the only other procedure would be to bring the charge and transport them to the nearest jail facility. Mr. Bayer said this is one element of the intent, explaining if a prison officer has to detain a visitor, they have to wait for someone to effect the arrest. He said this can be difficult in rural areas and stressed this was unnecessary as they are trained police officers with knowledge of search and seizure. Senator Neal asked if DOP wanted the power to transport a person to jail. Mr. Bayer stated this was the case if the situation deemed it necessary.

Senator Neal questioned whether the designation of individuals would affect a privatized group. Mr. Bayer stated, "Absolutely not."

Senator Raggio questioned in regards to the fiscal note on the proposal, asking if this was a result of additional training costs. Mr. Bayer stated he did not know there was a fiscal note on the measure. He said he did not see a fiscal impact in the proposal and maintained all of the officers went through the same training as certified by P.O.S.T. He said the P.O.S.T. committee developed the three different categories in 1987, but, he declared, at this time the officer became the category, despite the training involved, based on the position held at the time. He pointed out two people trained identically could have different category designations as dictated by the job held. He noted officers can only hold one category at a time.

Senator Raggio maintained the officers would have to have more training to move to a higher category. Mr. Bayer concurred, stating some officers are trained at Category I although they may only hold the allowed Category III status by current occupation.

Senator Neal proposed a situation in which the director had the authority to make these designations and an individual was searched and found with drugs. He questioned whether this was the end of their current activity or whether an investigation leading possibly out of state would ensue. Mr. Bayer said they would have a strong involvement through different organizations, working as a team. He stated the officers would simply effect the arrest, transport the person to the proper location, do the standard paperwork, and turn it over for prosecution with the appropriate jurisdiction.

Senator Neal clarified if it lead to further involvement, their action would cease with delivering the person to a jail facility. Mr. Bayer concurred, stating unless for some reason task forces needed information coming out of the prison. He said officers would not travel or conduct surveillance.

Steve Barr, Lobbyist, Nevada Corrections Association (NCA), testified in support of the legislation "to a certain point." He provided the committee with a comparison of the NAC category requirements (Exhibit E). He said the sections highlighted in blue point to training overlapping from Category I to Category II. The green sections (Exhibit E) designate sections which do not overlap and are related to traffic, to patrol, and to laws governing coroners. These are totally unrelated to Category II requirements or to the operations of the Department of Prisons. He pointed out "care and custody of prisoners" is included in Category II but not Category I. He stressed all of the training a person needs to conduct law enforcement activities is contained in Category II.

Mr. Barr reasserted the need for a Category II status, pointing out an officer with two jobs may be considered a lower category at one and would not be able to perform higher category duties in certain situations despite training. He stated the bill expands the powers of the director of the Department of Prisons to designate the categories of the employees. Mr. Barr denied the necessity of having Category I officers in the prison system unless it is the goal to establish a police force with patrol cars. He indicated all necessary training for prison employees is provided within the Category II training.

Mr. Barr expressed concern regarding the vagueness of the wording in section 1, subsection 2, paragraph (d) of S.B. 229. He questioned the "interests of the department outside of the confines of the institutions" of the Department of Prisons. He expressed agreement with section 1, subsection 2, paragraph (e) of the bill. He concurred with the Category II designation for officers of the department, but not with the allowance of Category I and Category III employees. He stressed by establishing a system of categories within the department, officers are put into classes which, he suggested, will cause a morale problem. Mr. Barr expressed disagreement with section 2, subsection 7, paragraph (b) of the bill which references officers or employees of the Department of Prisons with the Category III designation.

Mr. Barr noted at the hearing on S.B. 183 it had been asked whether there would be a fiscal note; and he indicated, upon follow-up with the Fiscal Analysis Division of the Legislative Counsel Bureau, there would be no fiscal note as long as staffing was appropriately applied by the department.

Gary H. Wolff, Lobbyist, Nevada Highway Patrol Association, testified in opposition to S.B. 229, stating the bill is vague. He stressed S.B. 183 covers the prison’s needs and said Category II works for everything those employees need to do. He expressed concern the director of the department would be able to designate high-category status without consulting with and meeting the requirements of P.O.S.T. He said the language set forth in section 1, subsection 2, paragraph (d) of the bill was unclear and questioned whether this could be in violation of people’s rights. He stated the bill was evidence of too much control. Mr. Wolff expressed support for allowing employees of the department to be designated Category II status, indicating it would not cost the state money but would still provide the employees the full peace-officer powers they need.

Senator O’Donnell indicated working in the jails is much different than working on the street, noting the training is relative to each. Mr. Wolff reiterated his support for the Category II status and explained there is a liability factor in transporting prisoners. He maintained prison officers should have arrest powers in certain circumstances though not in the broad form set forth in S.B. 229. He expressed concern a person could be designated a Category I police officer regardless of training as the language does not include "pursuant to the requirements of P.O.S.T."

Senator Raggio commented the testimony indicates all corrections officers are presently designated Category III officers though it was voiced to be appropriate to have Category II designation. Mr. Wolff said all corrections officers should be of Category II status.

Senator Raggio indicated the bill would authorize the director to designate officers as Category II and said the officers that have not had the P.O.S.T. training will have to have these requirements met before they can be designated as Category II officers. Mr. Wolff said he did not see anything wrong with this intent.

Senator Raggio stated it should be clear that correctional officers should have some authority over situations regarding third-person involvement in the prison setting. He questioned how this measure could be construed to be an invasion of people’s rights. Mr. Wolff reiterated his opposition to the concept in the measure giving the director of the prison the automatic authority without official training requirements.

Senator Raggio pointed out if the required training was necessary for the designation, then anyone designated must receive the required training. Mr. Wolff indicated this intent would meet his objection. Mr. Barr objected to the different class status of officers within the same system at the discretion of the director. He stressed this to be divisive in nature, stating all functions of officers with the department will be best served at the Category II level.

Senator Raggio suggested not every officer in every position in the department needed to be in a Category II position. Mr. Barr maintained at any given time, any officer of the department will be performing the duties specified in Category II. Senator Raggio questioned whether this should be the director’s decision. Mr. Barr pointed out many times the director cannot come to the institution for an officer to go on a transportation run. He said currently corrections officers are not trained in powers of arrest, weapons retention, search and seizure, or in constitutional law.

Senator Raggio stated Mr. Barr would object unless all officers are made Category II officers and given this training. Mr. Barr agreed with the senator’s summation, stating the department has outgrown the Category III training. He pointed out the extra training could be accomplished through Peace Officer Refresher (POR) which is received yearly.

Robert J. Gagnier, Lobbyist, State of Nevada Employees Association/AFSCME, testified in opposition to certain provisions in S.B. 229 rather than to the entire bill. He indicated section 1, subsection 2, paragraph (d) of the measure is overly broad and goes beyond necessity. He stated support for section I, subsection 2, paragraph (e) of S.B. 229 because it addresses people who may not currently be offenders. He pointed out section 1, subsection 3 would provide the director greater authority than anyone in the state with the ability to designate categories. Mr. Gagnier stressed the importance of consistency, noting designations may change with directors because there are not rules or definitions as to who should be granted which designations. He noted the fiscal note may pertain to training, but pointed out a pay raise for chief investigators of the department was being proposed. He said by expanding duties, one may make more money. He again restated his objection to the overly broad language.

Senator Raggio questioned who, if not the director, should designate status. Mr. Gagnier said the language should not be open-ended to allow anyone to designate categories but should be specified by statute. Currently, he noted, the designation of who has peace-officer powers is set by statute. He maintained if not set in statute, the prison board should have this power as they may apply designations with more consistency.

Senator Neal questioned whether the objection was based on the ability to give and remove designations at will. Mr. Gagnier agreed this could happen as the same director or two different directors may give the categorical status and then take it away. He stressed consistency was not set forth in the measure.

Senator Neal recalled an instance in which the FBI did not have police powers in the state and could not arrest anyone. This power was subsequently inserted into the statute, he noted, and the FBI proceeded to investigate the Legislature. He said it was important to know the intent of the measure, stating he could foresee a situation which might exist in which a third-party arrest must be made within the prison system. He indicated the problem of transporting the person to another facility and questioned the response time for this transportation to be provided.

Mr. Gagnier suggested this situation could be addressed on the top of page 2 of the S.B. 229. He stated the insertion of this provision in the existing language of the law would be adequate rather than creating an investigatory body within the Department of Prisons assigned to whatever might be related to the department’s interests or to allow the appointment of officers to various categories.

Senator Raggio questioned whether changing the designation of an officer from Category III to Category II would have any impact upon salary. Mr. Barr indicated there was no impact on the salary for this designation change.

Chairman O’Connell requested Kim Marsh Guinasso, Committee Counsel, Legal Division, Legislative Counsel Bureau, inform the committee of conflicts between S.B. 183 and S.B. 229 for the work session.

Mr. Bayer indicated statute does not currently state every employee of the Department of Prisons is a Category III officer. He explained he was attempting to clear up some of the inconsistencies in statute. He pointed out the current statute states, "the director and any officer or employee of the Department of Prisons so designated by the director…." Mr. Bayer indicated he currently has the statutory authority to designate which employees are peace officers and which ones are not. He explained almost all sheriff offices currently have employees who are Category I and those who are Category III officers and stressed there is an economy to making sure the right training is matched to the right jobs. He pointed out he is exempt by statute from certification.

Mr. Bayer indicated he was attempting to anticipate any future problem by this legislation. He said he would not have a problem amending the proposal to remove the Category I designation, stressing he did not want this issue to block the measure. He clarified other statutes exist prohibiting a person from becoming a peace officer without going through P.O.S.T. training. He mentioned he is on the P.O.S.T. committee, stating officers must go through the requisite training prior to certification as a peace officer for a given category.

Mr. Barr pointed out the Category I designation is unnecessary as correctional officers can perform the duties as well at the Category II level. He mentioned it was NCA’s desire to remove the Category III level as well because the department has outgrown it. He restated there would be no need for officers to remain at the Category III level as they will all be dealing with diverse situations in which they are currently untrained and unable to perform.

With no further testimony before the committee, Chairman O’Connell closed the hearing on S.B. 229 and opened the hearing on S.B. 230.

Robert Bayer, Director, Department of Prisons, testified in support of S.B. 230, explaining the measure requests statutory authority to place someone on leave without pay if he is arrested for a felony pending the outcome of that felony. The courts, he noted, have upheld this action; but, according to the Department of Personnel and the attorney general’s office, a specific change in statute would have to occur for this to be practiced. He referred to U.S. Supreme Court case Gilbert v. Holmar regarding the due process clause of the 14^th amendment in which an officer charged with a felony pending a hearing was suspended, and quoted, "We think that the government does not have to give an employee charged with a felony a paid leave at taxpayer expense."

Mr. Bayer pointed out there had been occasions in which the department found it necessary to have the ability to suspend an employee without pay. He cited a situation in which an employee had committed a federal crime and was convicted pending sentencing on a weapons charge. He indicated he was unable to put this employee on leave and the person had to be kept in his position at the gun tower. Mr. Bayer referenced another situation in which an officer was charged with a felony and the department had to put the officer on leave with pay. The officer subsequently left the state and was charged with a felony in another state.

Mr. Bayer stressed there are times when an employee is arrested for a serious crime and the department does not have enough information for a dismissal because information is protected while the case proceeds forward. He said in these rare circumstances, the employee should be placed on leave without pay until all of the information is recovered, to provide due process rights.

Senator Raggio expressed amazement at the necessity for the bill. He questioned whether there was current authority to suspend an employee without pay if the employee had access to confidential records and was charged and arrested for a felony. Mr. Bayer stated he did not currently have this authority in statute though the supreme court has indicated this authority should be provided. Senator Raggio expressed disbelief that an employee arrested and charged with a felony could not be suspended without pay. Mr. Bayer indicated the employee must still be paid, stating if the department does not immediately put the employee on leave with pay and the employee is kept on staff as the investigation ensues, they cannot then terminate the employee. He said often they do not want to fire someone until there are more facts, although often the facts are confidential in the case of a criminal trial.

Mr. Bayer pointed out if the state makes a mistake and the person was improperly charged, then the back wages would be paid. He noted there are times when teachers get suspended without pay.

Chairman O’Connell questioned the length of time it takes a case to come to fruition. Mr. Bayer said he did not have the statistics on this information. Chairman O’Connell expressed concern the families of the accused would be penalized as well as the employee pending outcome. She requested the statistics be provided for the committee.

Chairman O’Connell questioned whether S.B. 230 applies to any level of a felony. Mr. Bayer indicated the levels of felony have not be separated out, because each felony is extremely serious in an institutional environment with the possibility of creating various safety problems.

Senator Care questioned whether the bill would govern employees who do not have access to confidential records as well as those with access. He asked the length of time in which a suspension would be in effect.

Mr. Bayer said the department was at the mercy of the prosecuting agencies in terms of the length of the suspension. The threat to security, he maintained, is as great regardless of the length of time it takes to resolve the issue. He indicated there would be no way to separate the time out unless a premature termination was made instead of a suspension. He stressed the ability to suspend employees without pay would provide the department with another tool.

Answering Senator Care’s question regarding language specific to employees with access to confidential records, Mr. Bayer said the researchers came up with this language. Mr. Bayer indicated it was intended to cover employees who affect the security of the institution and could cause a specific threat to the institution.

Senator Titus questioned if someone suspended without pay would keep benefits and insurance provided by the state job. Mr. Bayer pointed out the difference between putting an employee on "leave without pay" and on "absent without leave." "Leave without pay," he indicated, does not mean loss of seniority or benefits. He remarked if the employee is "absent without leave," then they would receive no benefits from the state.

Senator Titus declared she would not like to see families put in a situation in which they would lose their medical insurance, though expressed understanding for the position of the department concerning an employee charged with a felony. She asked whether there was a guarantee of providing back pay to the employee suspended without pay. Mr. Bayer indicated he believed this language to be in the bill, stating as long as one is an employee due process rights are still afforded. He stated if the case is lost after a proper hearing, back pay is restored. Currently, in every case the person is being paid whether the state is right or wrong. He stressed the department has been correct in most cases of suspension. He indicated he would research to make certain that when an employee is on leave without pay, they would still be eligible for the insurance benefits.

Senator Neal said that this bill assumed absolutes, stating once a person is charged, it is absolute that the person will be convicted of those charges. He said there are no absolutes and there have been many instances of arrests in this country made on false identity or due to vengeance. The senator noted a person is charged until cleared, and according to the measure, would suffer as a result. He suggested some other standard must be explored in order to avoid a situation in which a person’s rights of presumption of innocence would be taken away until proven guilty. He stressed protecting people’s rights is mandated and unless more concrete evidence exists a person is not cast aside until proven guilty. He expressed concern with the measure as due to basic rights to be "innocent until proven guilty."

Mr. Bayer concurred with the concern of the senator, although he pointed out the matter had been addressed in front of the U.S. Supreme Court. Stating the issue involves a police-agency situation, he noted the supreme court upheld the constitutionality of the matter. He noted in every case when there is an arrest and a personnel action to be taken, it comes to a subjective decision weighing the facts known. He said someone could be terminated for an arrest, but his proposal involves investigating every case on its own merit with the information available. Mr. Bayer stressed this would be the exception not the rule, maintaining the type of felony and the type of threat represented by the felony would be weighed in the decision. As the decision is subjective, he noted controls would be put in place. He pointed out if he suspended people without pay and the decisions were constantly overturned by the hearing officers, it would be made clear to everyone he was ineffective in personnel policy.

Steve Barr, Lobbyist, Nevada Corrections Association, indicated the premise of S.B. 230 is to suspend an employee without pay and without due process. He proposed an example in which an officer arrested for a felony is suspended without pay. On the basis of an arrest, the person may lose his house or other possessions. He questioned whether the state would be made to buy the house back if this person should be found innocent.

Mr. Barr suggested changes could be made so other actions could be taken by the department to avoid risking secure records or institutional security. In other cases, he noted, the department has put officers outside of the institution, in duties not security conscious, pending the outcome of the case. Within the last 2 years, he pointed out, there was an officer arrested for a felony which was later proven unfounded. He told the committee since that time the officer has been promoted and continues on with his career. He indicated the outcome would have been different had this bill been in effect.

Chairman O’Connell questioned the state’s liability when allegations are proven invalid. Mr. Bayer replied if the allegations prove insufficient, then the state would restore all of the pay from the day the person was put on leave without pay.

Mr. Bayer indicated the officer, referenced by Mr. Barr, who has been promoted since the time of being falsely accused, was accused of a misdemeanor rather than a felony so the bill would not have affected that situation.

Chairman O’Connell questioned who would bear the liability of loss of property resulting from leave without pay. Mr. Bayer indicated the same discussions were had up to the level of the supreme court which held that the state had no obligation to pay the way in cases where a peace officer is arrested for a felony. He said he did not think the state would have any strict liability, stating he hoped the department’s judgement will always be 100-percent correct on this issue.

Mr. Barr testified medical benefits for family members would not continue unless the officer was paying for those benefits, which he would be unable to pay for if he was not working. He added decisions with the supreme court change as often as the court members do.

Robert J. Gagnier, Lobbyist, State of Nevada Employees Association AFSCME, indicated Norah Ann McCoy, State of Nevada Employees Association, Legal Counsel, who handles more of these cases than anyone, was unable to attend the hearing and requested he present her prepared statement on S.B. 230 (Exhibit F) to the committee. Mr. Gagnier read from the prepared testimony (Exhibit F), which declared the bill unnecessary according to NAC 284.656. This code sets forth the procedure to be followed before suspending without pay any classified employee, and he explained the provisions relating to S.B. 230 (Exhibit F). He pointed out NAC 284.650 lists the causes for disciplinary action in state service and spoke of the actions thereof (Exhibit F). He stated "There is no reason to single out employees of the Department of Prisons for separate and harsher treatment than that which already applies to all state employees." The bill, he read, presumes guilt contrary to law and he listed the reasons as set forth in (Exhibit F). He stressed, "If a criminal defendant is entitled to a presumption of innocence from a judge or jury, a state employee should certainly expect no less from his employer."

In response to the former argument, Mr. Gagnier stated insurance for the employee and his family members would be provided under Consolidated Omnibus Budget Reconciliation Act of 1984 (COBRA) with a limited extension at a 100 percent of the cost. The employee, he noted, would not be able to pay for the insurance if he was out of work. He described the bill as onerous, particularly when it only applies to arrests. He noted one does not have to be charged with a felony under the language in the measure. He declared this measure to be one of the worst of the session.

Senator Raggio indicated the referenced NAC was regulation, noting the regulation should not necessarily govern. The senator said an employee could currently be suspended without pay under circumstances in which the person has not committed or been charged with a felony. He said under these circumstances, given notice and due process, someone could be suspended without pay.

Senator Raggio proposed a situation in which a prison guard was caught "red handed" giving a pistol to an inmate. He indicated the public would be upset if the department did not have the authority to suspend the correctional officer without pay. He pointed out the bill does not require a penalty of suspension without pay in every case of a felony but would give authority to do so in an appropriate case.

Mr. Gagnier agreed with the senator’s comments, although he indicated the department currently does have this authority. He claimed there to be no additional statutory construction. He pointed out an employee could be immediately suspended without pay pending a disciplinary action.

Senator Raggio stated Mr. Gagnier had previously cited a regulation (Exhibit F) which indicated this action could not be taken unless the employee has been convicted. He pointed out S.B. 230 addressed the time between the arrest and the conviction. The senator called attention to his earlier example of a prison guard giving an inmate a gun in which it would be absurd to be required to pay the suspended person until the person is convicted. He stressed there must be some means by which this situation would be addressed.

Mr. Gagnier maintained the accused does not have to be convicted prior to termination as the cited situation is a violation of regulations. He stressed the indicated employee can be suspended without pay immediately pending disciplinary action taken against them for dismissal. Senator Raggio pointed out this could only be done for up to 30 days. Mr. Gagnier indicated this time limit referred to the suspension period during the termination process. He pointed out the NAC (Exhibit F) lists actions by which termination is necessary, noting the situation proposed by Senator Raggio is cause for termination and action could be taken immediately. He listed other instances which can be cause for dismissal, stating the suspension is temporary because the goal is termination. He stressed this is already set forth in regulation and statute.

Mr. Barr said there are already internal procedures to deal with crimes committed by corrections officers in prison.

Senator Raggio questioned whether Mr. Barr agreed that under the current regulations, these officers can be suspended without pay for 30 days. Mr. Barr concurred, noting the director’s testimony indicated the function was already in place for crimes committed jeopardizing institutional security. However, he said S.B. 230 addresses crimes occurring outside of the institution.

Senator Titus asserted Mr. Bayer’s testimony reflected the ability to terminate employees but noticed he was seeking a remedy less than dismissal. She asked Mr. Bayer to tell the committee what actions he would take if a corrections officer gave a gun to a prisoner.

Mr. Bayer said the employee could be terminated by a summary dismissal, noting this action is taken rarely as evidence must be in place and a termination hearing must be held within 10 days. He stressed the importance of having all the evidence needed to file a termination. He noted the proposal in S.B. 230 would be less than a termination. He maintained he was unable to remember an incident in which a prison employee was suspended without pay. He emphasized he had asked this question of the attorney general’s office and of the Department of Personnel who indicated he was not allowed to suspend an employee without pay unless the law was changed.

Mr. Wolff questioned the language in the bill, stating it was unclear as to whether the employee had to commit a felony to be suspended without pay upon reasonable belief of the department. He pointed out these provisions are separated by paragraphs (section 1, subsection 1, paragraphs (a) and (b)) and this makes the language unclear as one does not necessarily depend upon the other. He stressed there are current regulations in place to address this issue. He explained the reason the Department of Personnel has tight restrictions is because they lose so often in the courts and the taxpayers pay for lawsuits and back pay. He said this bill violates constitutional rights. He pointed out an arrest without conviction does not justify losing one’s livelihood, although it may seem "ludicrous" to the taxpayers to pay a person who was suspended for a crime. He stressed the measure would give too much power to management without letting it go through the proper process set forth in regulations. Mr. Wolff pointed out there is a local attorney practicing law who had been convicted of felonies and drugs. This man’s right to practice law was not suspended, he noted. Only after the lawyer was convicted of a crime, he maintained, did the bar association take his right to practice law away. Mr. Wolff pointed out in the highway patrol, one is put in a civilian capacity until the offense is discovered to be true or false.

Chairman O’Connell questioned whether these cases would go through the board of examiners. Mr. Wolff stated this was true. Chairman O’Connell requested Committee Counsel to find out the number of lawsuits brought against the state dealing with this issue.

Senator Care questioned what the various cities and counties in the state do in the instances in which a deputy district attorney or a police officer is suspended upon arrest for a felony. Mr. Wolff cited a case in which a police officer charged in a "gun-in-hand case" remained working until his termination. He said S.B. 230 is unnecessary.

Mr. Gagnier said anyone convicted of any crime involving "moral turpitude" may be dismissed immediately as set forth in regulation, noting the departments do not have to wait until the person is sentenced in the case of felonies or gross misdemeanors. He stressed the regulations are adequate.

Mr. Bayer insisted the attorney general’s office will not define "moral turpitude" or show where it has been used on any employee. He gave an example of an officer charged with a gross misdemeanor, pleaded down from a felony, for abusing a 911 line on state property, and because of the ruling by the hearing officer, the employee could not be disciplined or terminated. He stressed the regulations are not properly in place for disciplinary actions.

Chairman O’Connell requested Ms. Guinasso find a definition of "moral turpitude" from the attorney general’s office.

Ms. Guinasso indicated she would not be able to find this definition, stating although this language is currently in statute, it is not looked upon with favor due to its questionable meaning.

Chairman O’Connell questioned whether other language existed which is more clearly defined. Ms. Guinasso said an offense involving "moral turpitude" could be many things though not a crime itself. Certain crimes, she noted, could clearly be within the realm of "moral turpitude." She agreed to attempt to find more clarifying factors.

With no further testimony before the committee, Chairman O’Connell adjourned the meeting at 4:30 p.m.

RESPECTFULLY SUBMITTED:

Angela Culbert,

Committee Secretary

APPROVED BY:

Senator Ann O'Connell, Chairman

DATE: