The Senate Committee on Government Affairs was called to order by Vice Chairman William J. Raggio, at 12:23 p.m., on Friday, March 12, 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 Jon C. Porter

Senator Joseph M. Neal, Jr.

Senator Dina Titus

Senator Terry Care

COMMITTEE MEMBERS ABSENT:

Senator William R. O’Donnell (Excused)

STAFF MEMBERS PRESENT:

Amelie Welden, Committee Secretary

OTHERS PRESENT:

Madelyn Shipman, Lobbyist, Assistant District Attorney, Washoe County, explained BDR 22-568 attempts to provide a consistent process for the calculation of residential construction tax with regard to mobile homes. She stated all counties deal with this issue differently, though relevant laws are in place. Ms. Shipman noted the tax is based on "the cost of actual construction," and counties differ in how that cost is determined.

In response to a question from Vice Chairman Raggio, Ms. Shipman clarified
BDR 22-568 would apply throughout Nevada.

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Vice Chairman Raggio opened discussion on BDR 20-566.

Ms. Shipman testified BDR 20-566 would clarify Nevada Revised Statutes (NRS) 244.286, which provides that any county lease-purchase or lease for a new structure is subject to NRS chapter 338, the prevailing wage statute. However, she said the statute exempts such transactions from the competitive bidding portions of NRS chapter 338. She continued BDR 20-566 would clarify that these provisions would also apply to the remodeling of an existing building.

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Vice Chairman Raggio began discussion on BDR 22-871.

Vice Chairman Raggio indicated nobody was present from the board of architecture, which requested BDR 22-871. He explained the BDR defines a design document, establishes provisions for submission of a design document, and provides disciplinary action.

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Chairman O’Connell opened discussion on BDR 20-548.

Ms. Shipman stated BDR 20-548 concerns the public administrator and public guardianship statutes. She asserted the BDR clarifies and makes consistent the ability to separate the functions of the public guardian and the public administrator. She noted under current law, certain people must be committed to the public administrator even though they are supposed to be placed under the public guardian.

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Greg Salter, Deputy Attorney General, Office of the Attorney General, stated he is responsible for enforcing the open meeting law on behalf of the attorney general’s office. He noted the open meeting law requires public bodies to send meeting notices and agendas to citizens who request such information. He indicated the purpose of S.B. 312 is to ensure the information is sent without charge and by first-class mail.

Senator Raggio asked about the necessity for S.B. 312. Mr. Salter answered in the last year, the attorney general’s office has received and settled four complaints from citizens regarding two public bodies, the City of Sparks and the Clark County Board of Commissioners, which were charging subscription fees for people to be placed on their mailing lists. He stated the subscription fees were as high as $40 per year per citizen, even if the citizen wanted to be notified of only one meeting. Mr. Salter said the City of Sparks and the Clark County commission have stopped charging subscription fees. However, he noted that during negotiations, some attorneys commented Assembly Bill (A.B.) 214 of the Sixty-ninth Session would allow public entities the right to charge such fees.

Mr. Salter explained those attorneys take the position that notices and agendas are public records. He emphasized S.B. 312 would clarify such information should be sent without charge.

Chairman O’Connell asked whether S.B. 312 has a fiscal note. Mr. Salter answered no fiscal note is necessary because most public bodies currently do not charge for notices of public meetings.

Lucille Lusk, Lobbyist, Nevada Concerned Citizens, testified she had filed a complaint involving several violations of the open meeting law. She commented the issue addressed in S.B. 312 had not been fully resolved, and she offered her support for the bill.

Michelle M. Gamble, Lobbyist, Nevada Association of Counties, said the association sent S.B. 312 out to its members. She reiterated all counties currently mail notices of public meetings at no charge, so S.B. 312 would have no fiscal impact. She stated the Nevada Association of Counties has no objection to the bill.

Chairman O’Connell closed the hearing on S.B. 312 and opened the hearing on Assembly Bill (A.B.) 93.

ASSEMBLY BILL 93: Revises provisions relating to state contracts.
(BDR 27-297)

Brett Kandt, Deputy Attorney General, Contract Unit, Civil Division, Office of the Attorney General, explained A.B. 93 would repeal NRS 239.040 and NRS 225.070. He stated these statutes require that all contracts and agreements entered into on behalf of the state be reduced to writing and forwarded to the secretary of state for compilation in an Agreement and Contract Book. Mr. Kandt asserted this requirement does not comport with existing state contracting procedures.

Mr. Kandt indicated NRS 239.040 has remained unchanged since it was enacted in 1879. He noted the volume, variety, and complexity of state contracts and agreements make their compilation and retention as required under that statute impracticable. He pointed out the State Board of Examiners (BOE) alone approved approximately 1,730 contracts and 110 real property leases in the fiscal period ending June 30, 1998. Mr. Kandt added the state enters into many contracts and agreements which do not require BOE approval. He said these include interlocal contracts, cooperative agreements, contracts for the construction of public works, and contracts for the purchase or lease of goods.

Mr. Kandt continued NRS 239.040 does not comport with existing records management laws. He indicated all state contracts and agreements are official state records which are maintained in accordance with retention and disposition schedules pursuant to NRS 225.085 and NRS chapter 239. Mr. Kandt maintained the secretary of state is the custodian of all official state records per Article 5, section 20, of the Nevada Constitution. He stated the requirement in NRS 239.040 that the secretary of state separately compile all contracts and agreements is therefore duplicated.

Mr. Kandt said the requirement that state contracts and agreements be reduced to writing appears in various places within the Nevada Revised Statutes, including in NRS 277.080 through NRS 277.180, in NRS 284.173, and in the "statute of frauds." He asserted A.B. 93 would amend NRS chapter 333 to require that all contracts entered into pursuant to the State Purchasing Act be reduced to writing. He commented Legislative Counsel added a repeal of NRS 225.070 to the bill.

Jeffrey M. Kintop, State Archives Manager, Archives and Records, Division of State Library and Archives, Department of Museums, Library and Arts, stated the practice of putting state contracts and agreements into a book is obsolete and has not been done since 1977. He noted all the contracts the state entered into from 1879 to about 1919 fit into one book of approximately 600 pages. Mr. Kintop commented at some point, contracts began to be photocopied and pasted into the books. He stated this procedure became impracticable and was discontinued with Volume 8A in 1977.

Senator Neal asked if the retention schedule which applies to state contracts and agreements applies to all public records.

Robert van Straten, State Records Manager, Archives and Records, Division of State Library and Archives, Department of Museums, Library and Arts, stated he inventories and appraises records. He added he determines how long records will be maintained by state Executive Branch agencies and whether or not such records need to be transferred to the archives. Mr. van Straten noted many contracts do not have enough historical value to justify long-term retention. He said within agencies’ records retention schedules, he makes specific recommendations regarding contracts which need to be kept forever and transferred to the archives. He indicated other contracts, like those from the BOE, are scheduled to go to the archives after a certain period of time. Mr. van Straten asserted the archivists then look at the contracts and retain only those with historical value.

Senator Neal stated in his understanding, A.B. 93 would mean agencies would be the "record-keepers" of their contracts. Mr. van Straten answered technically, agencies are already the "record-keepers." He elaborated the only portion of the contract which is kept at the BOE is the signed original; amendments, correspondence, and other related material remain with the agencies. Mr. Kandt clarified any amendment to a contract would require BOE approval, and thus a copy of the amendment would be retained by the BOE.

Senator Neal asserted contracts and agreements were historically kept in a permanent book in order to protect against fraud. He reiterated retention schedules currently say that within a certain period of time, agencies can dispose of some contracts and agreements.

Mr. van Straten explained the records retention schedule reflects the minimum legal requirement to retain a record. He stated after the legally required retention time, a record either has historical value or no value at all. He noted a record with no value would need to be destroyed. Mr. van Straten contended when he performs an appraisal, he takes into account all federal and state laws and regulations which may pertain to a record. He indicated he then determines a minimum retention requirement, which is usually 6 years from the expiration date of a contract.

Senator Neal asked about legal value as opposed to historical value. Mr. van Straten clarified when looking at records, he considers four values: administrative value, fiscal value, legal value, and historical or archival value. He explained legal value involves "proof of enforceable rights, obligations, or other legal standing."

Senator Neal asked how long records with legal value are kept. Mr. van Straten answered that depends on relevant law. He elaborated a statute of limitations allows involved parties to bring a contract to court within 6 years of the cessation of the contract. However, he noted some contracts involve a longer period of time and are subject to different laws.

Scott Anderson, Deputy Secretary of State, Commercial Recordings Division, Office of the Secretary of the State, testified he was representing Dean Heller, Secretary of State. He read from prepared testimony (Exhibit C) indicating the secretary of state has no objection to A.B. 93. He noted the bill would put current practices into statute.

Chairman O’Connell closed the hearing on A.B. 93.

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Chairman O’Connell began the work session and opened discussion on S.B. 191.

Senator Titus suggested amendments to S.B. 191, as set forth in the work session document (Exhibit D. Original is on file in the Research Library.). She indicated she had worked with Elizabeth N. Fretwell, Lobbyist, City of Henderson, to come up with amendments which incorporate suggestions from the hearing on S.B. 191. She explained the proposed amendment to subsection 1 of section 1 of S.B. 191 would ensure local governments would not have to lessen their requirements if they already had stricter provisions than those outlined in the bill. Senator Titus offered "strong support" for that amendment.

Senator Titus explained paragraph (b) of subsection 5 of section 1 of S.B. 191 would be amended to delete "schools" because local governments have no control over when a school district builds a school. She continued paragraph (c) of subsection 5 of section 1 of the bill would be added to provide for planning and coordination with the school district.

Senator Titus indicated other proposed amendments address the definition of a "project of significant impact." She stated the changes in paragraph (c) of subsection 6 of section 1 of S.B. 191 have general agreement. She commented Ms. Fretwell and the National Association of Industrial & Office Parks (NAIOP) support deleting the employee threshold, but leaving in the vehicle-trip threshold because such trips are significant for planning.

Senator Titus stated the proposed amendment to paragraph (a) of subsection 6 of section 1 of S.B. 191 did not originate with Ms. Fretwell. Senator Titus maintained she had included that change as a concession to home builders, but she had never heard back from them. Because of the absence of opposition, she contended she would like to leave the provision for 300 units rather than change it to 500.

Senator Titus explained proposed amendments to section 2 of S.B. 191 would ensure only aggrieved parties would have standing to bring lawsuits pursuant to the bill. She said an "aggrieved party" is defined as the applicant, the owner, or a person who has been involved in the process from its beginning. She added proposed amendments to section 2 would provide that aggrieved parties do not go through the attorney general, but go straight to the court.

Senator Titus concluded she supports the aforementioned amendments. She further indicated no one had objected to the amendments proposed by the Sierra Club (included in the work session document, Exhibit D), and these amendments are reasonable. Senator Titus summarized for public information purposes, the Sierra Club requested that impact statements be submitted 2 weeks prior to approval hearings. She emphasized she did not want anybody to have to repeat previous research projects or other tasks for impact statements. However, Senator Titus noted the Sierra Club would like impact statements to include references to such information, as set forth in the group’s second proposed amendment. She commented this amendment would increase information availability without placing a burden on anyone.

Chairman O’Connell mentioned Clark County deals with issues like those addressed in S.B. 191 every 2 weeks. She asked if any local governments currently do not deal with such issues. Senator Titus responded entities address these issues in different ways, and S.B. 191 would standardize the practice without placing a burden on anyone.

Chairman O’Connell asked whether the state should be involved in planning issues like those outlined in S.B. 191. Senator Titus answered NRS chapter 278, which deals with planning, is substantial in size; she stated obviously planning has not always been left to local governments.

Senator Care suggested adding the word "daily" to paragraph (c) of subsection 6 of section 1 of S.B. 191 so that the bill would read "3,000 daily average vehicle trips." Senator Titus agreed.

Senator Porter expressed local governments had the opportunity to work with Senator Titus. He asserted if undue hardship were involved, the committee would have heard opposition from local governments.

Chairman O’Connell clarified Senator Porter’s motion included all the suggested amendments.

Senator Porter commented Chairman O’Connell’s statements regarding "home rule" were pertinent to many issues. He stated the standing committee created by S.B. 253 of the Sixty-ninth Session has asked local governments to identify key areas for "home rule."

Ms. Gamble indicated the counties are still collecting that information.

Senator Neal commented the committee should be cautious about using the phrase "home rule" because it can carry the unintended connotation that city governments would be able to raise their own taxes and so forth. Chairman O’Connell emphasized there are various functions of "home rule," and it is not a generic term.

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Chairman O’Connell opened discussion on S.B. 229.

Senator Raggio stated parties had "pretty much agreed to" a proposed amendment to delete Category I peace officer status from the bill. He did not know if items of contention still existed.

Chairman O’Connell indicated the committee had heard two bills on issues similar to that of S.B. 229.

Chairman O’Connell noted Senator Amodei had planned to introduce another related bill, but had instead suggested working the language of his bill into whatever bill the committee passes. Chairman O’Connell asserted of the three related bills the committee has heard, S.B. 229 "stands alone."

Chairman O’Connell raised concern regarding the power S.B. 229 would give to the director of the Department of Prisons.

Senator Neal also expressed concern and recalled that Robert Bayer, Director, Department of Prisons, was the sole supporter of the bill in previous testimony. He remembered a representative for the prison guards opposed S.B. 229, as did Robert J. Gagnier, Lobbyist, State of Nevada Employees Association/AFSCME. Senator Neal stated opposed parties believe the authority which would be given to the director of the Department of Prisons under S.B. 229 is "totally inappropriate." Senator Neal said he agrees with that concern.

Senator Neal recalled one purported reason behind S.B. 229 involves a need for the authority to arrest people and transport them to a jail facility. He maintained he did not understand why that authority was necessary. He continued it seemed to him if somebody brought illegal items into a prison, guards would have the power to make an arrest, hold the person, and transport him or her to the nearest facility.

Senator Raggio supported the suggestion to delete Category I peace officer status from S.B. 229. He recalled according to previous testimony, all prison guards are currently Category III peace officers. He pointed out other departments, such as the sheriff’s office, can designate employees as Category II or Category III. Senator Raggio stated, "I cannot understand the concern that in a prison setting, with correctional officers, you would not have the same capability." He further recalled the committee heard testimony that Category III peace officers do not have arrest powers without a warrant. Senator Raggio concluded the committee should grant the authority to designate prison employees as Category II officers so they can make arrests if anybody brings illegal items into a prison.

Steve Barr, Lobbyist, Nevada Corrections Association, testified the premise of S.B. 229 is to authorize the director of the Department of Prisons to designate employees as Category I, II, or III peace officers. He explained Category I designees have full peace officer powers and asserted the Department of Prisons does not need such powers.

Mr. Barr recalled the director of the Department of Prisons testified he needed to be competitive with other agencies that hire investigators. Mr. Barr noted the director has already hired investigators from an existing list, so that argument is not a factor. He stated Category I designation is unnecessary unless prison employees will be patrolling the streets.

Chairman O’Connell interjected the director was willing to withdraw Category I authorization from S.B. 229.

Mr. Barr continued the Department of Prisons has "outgrown" Category III status. He maintained simply giving prison employees the powers of arrest is not a solution. He noted prison employees encounter many pertinent situations, such as weapons retention. Mr. Barr commented Category III prison employees do not receive training on search and seizure; they are only trained on searching an inmate’s living area. He pointed out prison employees cannot arrest people in the visiting area, but can only detain them for the sheriff’s office. Mr. Barr emphasized the lack of arrest powers is a serious problem in rural areas where the county sheriff may not be able to arrive for a long time.

Mr. Barr emphasized the need for Category II status across the board is "overwhelming." He stated Category II status would not be necessary if prison employees only "stayed behind the fence," but stressed that is not the case. He testified each day, the Department of Prisons has more than 100 inmates out on the street under the escort of armed officers. Mr. Barr contended for public safety reasons, such officers should have at least the level of training provided under Category II status.

Mr. Barr pointed out such positions as inspectors for emissions control and inspectors for the Taxicab Authority currently have Category II status. He stated, considering risk factors such as escape attempts, prison employees need Category II training.

Senator Raggio summarized Mr. Barr suggests all correctional officers should automatically have Category II status, though that suggestion is not a part of S.B. 229.

Senator Raggio mentioned additional costs are associated with training Category II officers as opposed to training Category III officers. Mr. Barr disagreed, noting training costs for existing correctional officers can be absorbed by the 24 hours of "peace officer refresher" time each officer receives annually. He explained:

Senator Raggio asked Mr. Barr if there are reasons the committee should not grant the authority to designate prison officers as Category II officers under S.B. 229. Mr. Barr recalled the director of the Department of Prisons had previously testified he wanted to designate only certain officers as Category II officers. Mr. Barr indicated the director had planned to confer Category II status on investigators and central transportation officers.

Senator Raggio asked why the director should not be given the authority to make such designations. He remembered the director of the Department of Prisons had testified not even the sheriff’s office designates all employees as Category II, but has different categories for different employees. Senator Raggio stated he did not understand why all correctional officers should be given Category II status. He noted the director must be trusted to make appropriate decisions.

Mr. Barr said the director of the Department of Prisons argues transportation officers should have Category II status because they are always transporting inmates. However, Mr. Barr pointed out at any moment, any officer can be called upon to perform transporting duties. He emphasized central transportation officers do not cover the entire transportation operation.

Senator Raggio asked, "Do they get higher salaries?"

Mr. Barr answered, "Negative. There are no higher salaries. We are simply talking about training."

Chairman O’Connell pointed out if S.B. 229 were amended and passed, the committee should be aware that it would conflict with S.B. 183.

Senator Care commented Mr. Barr supported making all correctional officers Category II officers. He asked if Mr. Barr would support S.B. 229 if he knew other legislation giving all correctional officers Category II status would fail.

Mr. Barr replied he has "mixed feelings." He stated, considering his understanding of the reasoning behind S.B. 229, he would rather see all legislation on this issue fail than see S.B. 229 pass. He explained currently a "deep, deep division" exists within the Department of Prisons. Mr. Barr contended giving the director the authority to differentiate among employees would allow him to select some officers to be "better" than others. Mr. Barr noted currently, the director can only select one category for his department. He stated S.B. 229 would escalate existing problems in the department and pointed out the Department of Prisons already has problems retaining officers.

Mr. Barr said S.B. 353 is "an integral part of the entire package."

Mr. Barr concluded passing S.B. 229 would be detrimental to the Department of Prisons.

Senator Raggio suggested holding S.B. 229 until the director of the Department of Prisons could respond to the suggestion of giving all correctional officers Category II status. The committee agreed.

Chairman O’Connell opened discussion on S.B. 230.

Senator Raggio recalled many people had testified in opposition to S.B. 230. He suggested holding the bill so the director of the Department of Prisons could testify on it.

Chairman O’Connell pointed out most of the opposition dealt with due process.

The committee agreed to Senator Raggio’s proposal. Chairman O’Connell clarified S.B. 229 and S.B. 230 would be included in a work session on Friday, March 19, 1999.

Chairman O’Connell opened discussion on A.B. 98.

Chairman O’Connell pointed out no amendments were proposed for A.B. 98. She recalled the committee had questions regarding the necessity for the bill.

Senator Raggio stated A.B. 98 was amended in the Assembly. He said:

Senator Raggio indicated he had no objection to the bill.

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Chairman O’Connell opened discussion on A.B. 127.

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Chairman O’Connell adjourned the meeting at 1:15 p.m.

RESPECTFULLY SUBMITTED:

Amelie Welden,

Committee Secretary

APPROVED BY:

Senator Ann O'Connell, Chairman

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