The Senate Committee on Government Affairs was called to order by Chairman Ann O'Connell, at 3:30 p.m., on Wednesday, May 12, 1999, in Room 2149 of the Legislative Building, Carson City, Nevada. The meeting was videoconferenced to Room 4412 of the Grant Sawyer State Office Building, Las Vegas, 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

GUEST LEGISLATORS PRESENT:

Assemblyman Wendell P. Williams, Clark County Assembly District No. 6

STAFF MEMBERS PRESENT:

Amelie Welden, Committee Secretary

OTHERS PRESENT:

Charlotte Brothwell, Lobbyist, Nevada Classified School Employees Association, asked if the committee members had received a fax from her in support of A.B. 11 (Exhibit C). Chairman O’Connell indicated the fax had been received.

Al Bellister, Lobbyist, Nevada State Education Association, testified that association supports A.B. 11, as it has supported similar bills in previous legislative sessions. He asserted A.B. 11 would give classified employees of school districts the right to bargain regarding transfers and reassignments. Mr. Bellister noted those issues are "already on the list of mandatory subjects."

Senator Care asked for background information regarding A.B. 11. Mr. Bellister responded similar bills have been introduced by Assemblyman Douglas (Doug) A. Bache, Clark County Assembly District No. 11, in previous sessions. Mr. Bellister maintained he would be more comfortable if Assemblyman Bache answered Senator Care’s question.

George Ann Rice, Assistant Superintendent, Human Resources Division, Clark County School District, stated she opposes A.B. 11, which would amend Nevada Revised Statutes (NRS) 288.150. She expressed paragraph (u), subsection 2, of section 1, of the bill contains the only substantive proposed change. She elaborated this paragraph would bring the transfer of administrators within the scope of mandatory bargaining. Ms. Rice asserted such a change would "do significant harm" to the Clark County School District’s efforts to meet the needs of children in each school. She pointed out administrators are part of management, and she asserted the school board must retain the right to assign its administrators and managers without negotiation.

Ms. Rice contended A.B. 11 would create another obstacle to the district’s accountability efforts. She stated the assignment of elementary-school assistant principals offers an example of the district’s need to retain the right to assign administrators without negotiation. She indicated limited resources have prevented the district from providing every elementary school with an assistant principal, and 111 assistant principals have been funded for the district’s 151 elementary schools. Ms. Rice noted a formula is applied each year to determine which schools have the greatest need for additional administrative support. She explained year-round schools receive a certain ranking, as do at-risk schools and those that have special-education programs. Ms. Rice continued the district takes into account school size, the number of probationary teachers, and the number of total staff. She elaborated each factor is given a ranking, and the schools are then organized according to their need for additional administration. Ms. Rice commented schools that rank from 1 to 96 receive 5 days of assistant-principal support; those that rank 97 to 111 get 3 days of assistant-principal support; and so forth. She concluded schools that rank from 127 to 151 get no assistant-principal support. Ms. Rice reiterated the ranking is performed every year to assess changes in and needs of schools. She emphasized the district needs to have flexibility to make administrative changes as school needs change.

Ms. Rice emphasized the assignment of elementary-school assistant principals is determined by the schools’ needs, and such assignments must be left to the district’s discretion. She maintained it is critical to the interests of children that the district be able to assign its administrators to positions where their talents and skills are most needed. She asserted any negotiated agreement regarding the transfer of administrators would, by its very nature, place restrictions on the district’s ability to transfer administrators.

Ms. Rice stressed the district’s actions are not arbitrary. She pointed out elementary-school principals and assistant principals provide input into the assignment process through an assignment preference survey (Exhibit D). Ms. Rice explained the survey is sent out to elementary-school and secondary-school principals each year. She noted the first page of Exhibit D contains the survey for secondary-school principals, and the second page is the survey for elementary-school principals. She emphasized all administrators are asked if they would prefer to remain at their present locations or if they would like to be transferred. Ms. Rice mentioned the surveys include areas for requesting specific transfer locations, as well as areas for comments. She contended the district takes administrators’ desires into account, but the first priority must be the needs of the students and schools. She concluded the transfer of administrators must not be subject to negotiations.

Charles (Steve) Williams, Lobbyist, Washoe County School District, read from prepared testimony in opposition to A.B. 11 (Exhibit E). He indicated he would testify on behalf of Tom Stauss, Acting Director, Personnel Services, Washoe County School District, and Michael Millerick, Certified Personnel Services Coordinator, Washoe County School District.

Mr. Williams indicated collective bargaining is "already lengthy, time-consuming and expensive," and any additions to existing mandatory topics would be detrimental to the school district. He continued A.B. 11 would extend to all district employees the right to bargain regarding transfers and reassignments, and that situation would limit the district’s flexibility to move staff quickly to meet the needs of students and schools. He indicated the issue is especially important considering Washoe County’s "rapid and unpredictable growth" and its "highly transient population."

With regard to special education, Mr. Williams commented the district must respond quickly to place support staff at the most seriously impacted schools, then transfer staff as new students arrive and disabled students move from one school to another. He asserted the same argument applies to transportation, nutrition services, custodial services, and clerical staff.

Mr. Williams emphasized the district must be able to respond to student needs, so no additions should be made to the list of mandatory bargaining subjects.

Henry Etchemendy, Lobbyist, Nevada Association of School Boards, read from prepared testimony in opposition to A.B. 11 (Exhibit F). He indicated NRS 288.150 was amended in 1987 to add "the policies for the transfer and reassignment of teachers" to the scope of bargaining. He asserted the Nevada Association of School Boards sees A.B. 11 not as a matter of equity, but as a "serious attempt to further erode the management abilities of an elected school board."

Mr. Etchemendy stated school districts need the ability to assign and transfer employees in order to effectively manage and in order to meet student and program needs. He asserted employees are adequately protected by the statutory provision that "employers may not unilaterally assign or transfer an employee as a form of discipline."

Senator Care asked if school districts have transferred personnel during a school term or if transfers are made only over the summer, with advance notice. Ms. Rice replied transfers are made according to the needs of the district. She pointed out people might retire, leave, or get promoted in the winter, and they need to be replaced at that time. She summarized transfers might be made at times other than the summer depending upon the needs of the schools.

Senator Care asked if seniority is a factor in considering administrators’ responses to the aforementioned surveys. Ms. Rice clarified the surveys are submitted to the proper instructional divisions, not to personnel. She continued seniority is not considered when addressing administrators’ requests, and she asserted the needs of the school and the talents of the administrator are the most significant factors.

Senator Neal requested, "Briefly tell me what you look for when you’re [you are] staffing a school, in terms of personnel."

Ms. Rice responded the Personnel Services Division of the school district "clears" teachers. She elaborated the division considers prospective employees’ transcripts, references, interviews, and applications. She explained, "Then we put them, in effect, as these people are approved if there is a school that sees a principal that believes that this particular teacher will meet the needs of that school." Ms. Rice concluded the Personnel Services Division "clears pools of people," and then the site administrator, who knows best the needs of the school, reviews the applicants and makes a decision. Ms. Rice added the same process applies to administrators for school-based positions. She explained the division has "eligibility pools" consisting of applicants who meet the relevant qualifications. She stated those names are then put on a list, and the proper instructional division works with the superintendent to make recommendations to the board.

Senator Neal asked, "So teachers now can bargain for whatever the policy is to include a transfer and assignment as they understand it?" Ms. Rice answered people who are already employees of the district fall under the negotiated agreement which covers the transfer of teachers.

Senator Neal asked if that agreement covers other employees, such as bus drivers. Ms. Rice replied she thinks bus drivers bid on the routes they want, according to seniority.

Senator Neal asked if bus drivers would be affected by the language "persons employed by a school district" in paragraph (u), subsection 2, of section 1, of A.B. 11. Ms. Rice explained the Clark County School District objects to that language because it covers administrators, and the district does not believe administrative transfers should come under a collective-bargaining agreement. She expressed A.B. 11 would take discretion away from the district.

Senator Neal asked, "So if you excluded administrators, you wouldn’t [would not] have any objection to anybody else being [covered]?" Mr. Etchemendy responded the Nevada Association of School Boards would still object to A.B. 11, even if it excluded administrators.

Senator Neal commented teachers already have the right to negotiate policies. Mr. Etchemendy replied teachers have had that right since 1987, and he asserted that issue "is in direct contravention to the management rights in subsection 3 of NRS 288.150."

Ms. Rice mentioned the negotiated agreement provides that the school district advertises openings internally during April. She explained a teacher who wants to transfer must interview with the appropriate administrator, who makes the decision. She concluded, "So even though we have it under our negotiated agreement, the administrator still must agree, except at the time when we place surplus."

Senator O’Donnell commented a bill similar to A.B. 11 appeared during the Sixty-ninth Legislative Session. He further noted, "Didn’t we [Did we not] promise that we would put this in the school-district policy that we wouldn’t [would not] transfer out instead of having that into collective bargaining?"

Mr. Etchemendy responded he does not recall such a promise. He stated similar bills have been heard in the Legislature during at least the last three sessions. He noted the bill passed through the Assembly in the Sixty-ninth Legislative Session and was sent to the Senate Committee on Government Affairs. Mr. Etchemendy indicated he does not remember discussion to the effect that each school district would adopt an internal policy. He contended the committee "acted … on the bill on its face" and did not pass the legislation.

Senator O’Donnell suggested he would review the minutes from last session on the issue. He recalled he voiced some objections to transferring teachers when the committee considered the matter during the Sixty-ninth Legislative Session. He reiterated he believes a promise was made to deal with the issue through an internal policy.

Mr. Etchemendy commented he was not involved with any such discussions.

Douglas M. Byington, Lobbyist, Nevada Association of School Administrators, stated that association has supported legislation similar to A.B. 11 in past years. However, he maintained A.B. 11 "goes far beyond what even the original lawmaker, Senator Carl Dodge, intended." Mr. Byington pointed out legislation that was passed in 1987 granted teachers the right to negotiate transfer policies. He said, "We have attempted to say that that extends on down to administrators because we are master‘s[-degree] teachers; we have a license to teach. And so we feel that under that policy we should be able to negotiate a transfer." Mr. Byington noted school boards do not agree with that interpretation.

Mr. Byington continued, "We have, as a board, over the years, supported … an equity issue of allowing administrators to negotiate their transfer policy. Licensed educational personnel should be able to negotiate their transfer policy." However, he contended A.B. 11 would give that right to everyone who is employed by a school district. He concluded the Nevada Association of School Administrators "cannot completely support" A.B. 11.

Warren B. Hardy II, Lobbyist, Clark County Association of School Administrators, testified that association has never supported expanding collective bargaining in the manner proposed by A.B. 11. He mentioned, "They view this as an equity issue," and he asserted A.B. 11 is too broad. Mr. Hardy indicated the Clark County Association of School Administrators had planned to propose an amendment to extend transfer as an issue of collective bargaining to licensed educational personnel. He maintained:

In response to Senator O’Donnell’s previous comments, Mr. Hardy recalled Senator O’Donnell had suggested that school districts address this issue as a matter of policy. Mr. Hardy said the Clark County Association of School Administrators is willing to try that option by working with the Clark County School District.

Chairman O’Connell closed the hearing on A.B. 11 and opened the hearing on A.B. 62.

Assemblywoman Christina R. Giunchigliani, Clark County Assembly District No. 9, testified A.B. 62, as amended, is the result of several subcommittee hearings that took place after the bill’s initial presentation in the Assembly. She distributed five handouts; including the "State Annual Ombudsman Report to the Administration on Aging" for fiscal year 1996 (Exhibit G); the "Elder Rights Unit Ombudsman Report" for fiscal year 1998 (Exhibit H); two letters from Legislative Counsel (Exhibit I); a proposed amendment to A.B. 62 (Exhibit J); and a packet including a bill summary for the first reprint of A.B. 62, an e-mail message from the chief of the Bureau of Licensure and Certification, a letter from the president of the Nevada Fair Housing Center Inc., and a letter written by Assemblywoman Giunchigliani (Exhibit K).

Assemblywoman Giunchigliani indicated the Fair Housing Act currently "protects" group homes’ classification as residential facilities. However, she asserted some areas in Nevada still attempt to place group homes in commercial areas through zoning regulations. She contended A.B. 62 would prohibit the placement of group homes in commercial areas and would also prohibit "allowing a commercial license to have to be requested." Assemblywoman Giunchigliani added the bill would "prohibit a special-use permit from being requested, as well." She noted all three aforementioned practices are in violation of the Fair Housing Act.

Assemblywoman Giunchigliani continued many individuals do not want group homes in their neighborhoods because they do not understand that such homes are defined as residential facilities. She contended these people argue that group homes will affect their neighborhood due to "clustering." She maintained the point of the Fair Housing Act is to assimilate group homes throughout neighborhoods, not to cluster such homes within neighborhoods.

Assemblywoman Giunchigliani explained A.B. 62 would direct local governments in counties with populations of 100,000 or more to consider a spacing requirement for group homes. She commented rural areas do not have a clustering problem. Assemblywoman Giunchigliani stated A.B. 62 would require that the first group home in an area must be approved and located upon request. She expressed the bill would also provide for review of any group home which proposes to be located within 660 feet of another group home. She noted this second home could be approved or denied.

Assemblywoman Giunchigliani asserted A.B. 62 would "grandfather in" all group homes existing as of October 1, 1999. However, she suggested a proposed amendment (Exhibit J) based on S.B. 163, which "makes the registered homes, licensed homes."

Assemblywoman Giunchigliani mentioned S.B. 163 requires group homes to be licensed by January 1, 2000. She commented, "I don’t [do not] want them negatively impacted, so I’m [I am] suggesting a March [April] date of the year 2000 that the actual 660 feet piece would kick in." She asserted S.B. 163 also changes the title of relevant homes from "registered homes" to "homes for individual residential care." Assemblywoman Giunchigliani noted this title change would need to be reflected in A.B. 62, and she suggested the Legal Division of the Legislative Counsel Bureau could consider such changes as would be necessary to resolve potential conflicts in that regard. She reiterated she wants to "grandfather in" all existing group homes that are already licensed by the state Health Division.

Assemblywoman Giunchigliani contended, "It seemed from local-government testimony that no one really knew where all the group homes are located." She indicated subsection 3 of section 1 of A.B. 62 would create a "very simple" group-home registry which would be maintained by the State of Nevada. She asserted the state already has records of the group homes it licenses, but the aforementioned subcommittee on A.B. 62 believed it was important to have a registry like the one proposed in the bill, with Internet access available.

Assemblywoman Giunchigliani maintained A.B. 62 would protect individuals in group homes, as well as balance the concerns and needs of neighborhoods. She commented opponents of A.B. 62 have argued that the bill’s 660-foot distance requirement would be unconstitutional. She pointed out Legislative Counsel has considered this question both during the Sixty-ninth Legislative Session and during the Seventieth Legislative Session. (See Exhibit I.) Assemblywoman Giunchigliani expressed the Fair Housing Act does not prohibit spacing requirements, and the Ninth Circuit Court of Appeals upheld a spacing requirement in a relevant case. She claimed A.B. 62 "attempts to … just simply have people begin to review so that you don’t [do not] get into the issue of clustering, which then allows those individuals who want to argue about having any group homes located in their area, giving them more voice."

Assemblywoman Giunchigliani commented Betty Gammon, a group-care home owner, contacted her with concerns about A.B. 62, and Assemblywoman Giunchigliani went over the bill with Ms. Gammon. Assemblywoman Giunchigliani contended A.B. 62 would not negatively impact Ms. Gammon because her group homes are already licensed. Assemblywoman Giunchigliani noted Ms. Gammon is currently licensed to provide care for ten individuals. Assemblywoman Giunchigliani further asserted the original version of A.B. 62 would have allowed ten individuals to receive care in a group home classified as a residential facility. However, she explained she changed that number to six, at the request of the licensure board. Assemblywoman Giunchigliani expressed six is the average number of individuals cared for in a group home, though the licensure board allows group homes to care for ten individuals if the homes have the appropriate facilities, such as handicapped access and fire sprinklers. Assemblywoman Giunchigliani stated the licensure board believes "leaving it at six … [would] not restrict nor affect … those individuals; it just simply still … [leaves] the flexibility with the division based on the regulation that they … [have] in process."

Assemblywoman Giunchigliani indicated Ms. Gammon also raised concern that she would not be "grandfathered in" because she does not have a business license. Assemblywoman Giunchigliani explained the necessity for a business license is "up to the local jurisdiction." She pointed out A.B. 62 does not deal with business licenses, but only with state licensure of group homes. She reiterated group homes that are currently licensed by the state would be "automatically grandfathered in."

Assemblywoman Giunchigliani continued some people do not believe clustering of group homes is a problem. She recalled she asked the City of Las Vegas to provide a map 2 years ago that showed the locations of group homes. She indicated she had not updated the map, but she showed it to the committee, asserting various areas in the community are becoming clustered with group homes. Assemblywoman Giunchigliani claimed A.B. 62 attempts to address concerns regarding such clusters.

Assemblywoman Giunchigliani again emphasized, "The whole point is to disperse so that everyone is assimilated." She noted residents of group homes are not only senior citizens, but also persons who are mentally disabled. She stressed those residents need access to services, bus routes, and so forth.

Assemblywoman Giunchigliani said group homes are currently clustering in older neighborhoods. She elaborated several group homes may be located on one block, leading to concerns regarding "the issue of the neighborhood." She concluded A.B. 62 would ensure that group homes would no longer be segregated, required to have use permits, or placed in commercial areas.

Senator Care commented Clark County Senatorial District No. 7 contains two "heavy cluster[s]" of group homes, according to Assemblywoman Giunchigliani’s map. He mentioned constituents have conveyed questions to him regarding A.B. 62, and he stated one constituent asked if the bill could be changed to provide that group homes would not be permitted inside homeowners associations. Senator Care continued another constituent expressed concern about group homes being located in a cul-de-sac, due to possible problems with traffic and parking.

Assemblywoman Giunchigliani responded both of the cases Senator Care mentioned would be in violation of the Fair Housing Act. She explained many existing covenants, conditions, and restrictions (CC&Rs) of homeowners associations are illegal and subject to challenge. She emphasized group homes are defined as residential homes, so they are subject to only the requirements that are applicable to single-family homes. Thus, Assemblywoman Giunchigliani contended, neither homeowners associations nor cul-de-sac residents could put restrictions on group homes.

Senator Neal asked:

Assemblywoman Giunchigliani responded zoning can look at appropriate areas, but cannot require a special-use permit. She indicated some local governments have been attempting to require such a permit, sometimes in attempts to segregate areas for group homes. Assemblywoman Giunchigliani stated A.B. 62 does not apply to large nursing facilities, but mostly people’s residences which have been converted into group homes. She elaborated the owners usually rent out bedrooms to individuals and charge them accordingly. Assemblywoman Giunchigliani concluded:

Gail Burks, President and CEO, Nevada Fair Housing Center Inc., testified that center deals with enforcement policy, as well as education. In response to Senator Neal’s earlier question, Ms. Burks indicated zoning cannot prohibit group homes. She pointed out cities can pass local ordinances that cover where various structures can be placed, but cities cannot arbitrarily exclude group homes from being placed in residential areas. Ms. Burks commented the Fair Housing Amendments Act of 1988 set forth that provision.

In response to a previous question from Senator Care, Ms. Burks stated homeowners associations cannot put in their CC&Rs a restriction against group homes. She elaborated many cases have been brought against associations and individual members of associations for restrictive covenants. Ms. Burks explained a restriction against group homes would be considered a restrictive covenant under the Fair Housing Act.

Ms. Burks asserted the state needs legislation to address the concentration and clustering of group homes. She stated the Nevada Fair Housing Center Inc. performed a study in 1996 as part of a fair housing plan, which is mandated for all jurisdictions that receive federal money. Ms. Burks expressed the center plotted on a map group homes that are located in various southern Nevada areas. She indicated the center found many group homes are not licensed and are thus difficult to find, though she maintained some cities have a licensing requirement. Ms. Burks contended the cities of Las Vegas and Henderson have "lots of group homes clustered."

Ms. Burks testified the Nevada Fair Housing Center Inc. is "definitely in support of disabled issues" and has supported such issues since 1993. She emphasized the center does not want to put any group homes out of business, but the center does want to prevent "flipping" and "turning." She explained "flipping" and "turning" are terms for a process in which a commercial company buys up neighborhood blocks and then turns the houses on those blocks into predominantly group homes. Ms. Burks stressed she was not talking about small residential facilities that are operating and providing a needed economic service.

Ms. Burks went on to address court decisions regarding group homes and spacing requirements. She noted cases have been considered in various locations throughout the United States, including Michigan and Ohio. She asserted a spacing requirement can be allowed if a jurisdiction has a legitimate purpose for the requirement and if the requirement is not considered "discriminatory on its face." Ms. Burks contended statistical information about the location and concentration of group homes would provide a legitimate purpose.

Ms. Burks acknowledged the group-home industry has expressed concern regarding A.B. 62. She maintained the grandfather clause is "a good step," and she stated, "I don’t [do not] think it matters whether you have six or ten for purposes of fair housing." However, she indicated the economics of allowing six or ten residents should be considered.

Ms. Burks commented the studies performed by the Nevada Fair Housing Center Inc. are over 30 pages long, and she offered to mail copies upon request.

Senator O’Donnell asked, "… What kind of people are located in these group homes?"

Ms. Burks answered group-home residents meet the definition of disabled persons under the Fair Housing Act. She elaborated a disabled person is an individual with a physical or mental impairment that limits one or more major life activities, or an individual who "holds [himself or herself] out as having an impairment." Ms. Burks mentioned examples of disabled persons include people with Alzheimer’s disease and people with limited developmental disabilities. She concluded, "… Anybody who is disabled, technically, would be covered."

Senator O’Donnell asked, "Are they dangerous people …? I’m [I am] trying to make a point here."

Ms. Burks responded the Fair Housing Act covers disabled people because Congress wanted to ensure that such people could live in a residential-like setting. She commented disabled people are not necessarily dangerous.

Senator O’Donnell replied, "Exactly. So why do we need a restriction on homes that are in communities that are there to care for human beings that have, maybe, a handicap and a disability?" He asked who requested A.B. 62. He further raised concern about doing away with group homes, though he stated he does not have a problem with identifying where such homes are located.

Ms. Burks noted A.B. 62 would not do away with group homes. She explained the bill would ensure that any county government which is considering an ordinance would have to consider allowing group homes. She emphasized the Nevada Fair Housing Council Inc. would never support any measure which would eliminate group homes.

Ms. Burks continued A.B. 62 has raised economic questions regarding limiting the number of residents of a group home to six. She pointed out some people are concerned they would not be able to feasibly operate their group homes with six residents instead of ten.

Senator O’Donnell asked Ms. Burks what her position is regarding the question of six or ten residents. Ms. Burks answered, "From a fair housing perspective, I don’t [do not] think it matters whether it’s [it is] six or ten." She clarified the Nevada Fair Housing Council’s major concern involves large commercial companies that are coming into southern Nevada and "flipping" neighborhoods, as described earlier. She commented such companies turn residential group homes into commercial enterprises, and the Fair Housing Act was not intended to protect that practice.

Senator Neal asked, "Do you have any case law or cases that speak to the fact that residential zoning can be summarily turned into commercial zoning by placing a home in the residential area?"

Ms. Burks replied case law does not permit a residential neighborhood to be turned into a commercial zone. She indicated pertinent cases address whether or not a local government can prevent group homes from locating in certain neighborhoods.

Senator Neal commented cities have the power to determine whether or not to allow commercial enterprises to locate in residential areas. He asserted the corporate practices mentioned by Ms. Burks would be considered commercial enterprises because they are set up "just for profit."

Ms. Burks clarified group homes refer to a "smaller residential setting," and such homes, by definition, are not commercial enterprises. However, she stated, "When you start to get into a large home, there is a question as to whether it is commercial."

Senator Neal asked:

Ms. Burks responded:

Senator Neal again asked if changes must be made to homes in order to accommodate the disabilities of group-home residents. Ms. Burks replied, "The accommodations that a local government could pass here could not go above and beyond what would be a reasonable thing for a group home. In other words, they couldn’t [could not] require them to jump through additional hoops."

Senator Neal clarified he was referring to the health and safety of group-home residents. Ms. Burks responded, "For health and safety, you could have requirements, yes, but you couldn’t [could not] add additional ones."

Senator Neal offered an example, asking if a group-home owner would be required to install a wheelchair ramp for a resident who used a wheelchair. Ms. Burks answered fair housing and ADA would require the group-home owner to install a ramp, even if no residents used a wheelchair.

Senator Neal pointed out a home owner would not have to install a wheelchair ramp if he or she bought a house for a personal residence. He expressed he was referring to the conversion of single-family residences into group homes. He asserted:

Ms. Burks responded, "Senator Neal, if they were coming and making a change, that would indeed be an extra restriction, as zoning has done locally. That would be a violation of the Fair Housing Act, and yes, it would prohibit it."

Senator Neal questioned the spacing of group homes as proposed in A.B. 62. He asked if a spacing requirement would violate the Fair Housing Act. Ms. Burks answered a spacing requirement would be a violation only if it lacked a legitimate purpose. She said court decisions are split in states that have addressed the issue. For example, Ms. Burks noted some courts have determined that a state did not show evidence of the necessity for a spacing requirement. However, she mentioned other states showed evidence that a spacing requirement was necessary to prevent clustering or concentrations of group homes. Ms. Burks explained spacing requirements were allowed under the latter scenario. She emphasized, "You can’t [cannot] just [implement a spacing requirement] … because your sort of subtle purpose is to keep out group homes. That would be illegal."

Senator Neal asked, "… If [group homes] are clustered, you can space them out?"

Ms. Burks answered affirmatively and expressed, "It’s [It is] equivalent to trying to deconcentrate neighborhoods, for example, of low-income people or other minorities." She asserted the zoning board turns down applications for group homes in certain areas, so group homes end up in older neighborhoods.

Senator Neal asked, "Does the satisfaction or the benefit of the person who is disabled come into play here, in any manner, in terms of dictating not moving a cluster?"

Ms. Burks responded, "The satisfaction and the free fair-housing choice should always come into play." She continued A.B. 62 would "still give fair-housing choice," but would make it more difficult for local governments to prevent group homes through zoning.

Assemblywoman Giunchigliani clarified her intent with A.B. 62 is "absolutely not to negatively impact group homes," and she indicated she supports group homes as a "wonderful alternative for care." She added A.B. 62 does not address the licensing of group homes, but simply attempts to prohibit some abuses that have occurred in local-government zoning and permitting processes. Assemblywoman Giunchigliani noted the bill states CC&Rs cannot prevent group homes from begin located in any area. She concluded, "All it simply says is the whole intent of fair housing, while not specifically prohibiting a spacing requirement, is also to make sure the clustering does not occur." She maintained A.B. 62 presents a reasonable method for preventing clustering of group homes. Assemblywoman Giunchigliani mentioned Ms. Burks had previously suggested a "census-track methodology" for that purpose. Assemblywoman Giunchigliani said she presented that idea to the A.B. 62 subcommittee, as well, but they rejected it and decided to stay with a spacing requirement. She commented 660 feet is "about the standard, small length of a block."

Senator Neal asked how Assemblywoman Giunchigliani became involved with the issue in question. Assemblywoman Giunchigliani replied her neighbors approached her with the matter, and they met with then-Councilman Hawkins to discuss the fact that there were eight group homes within a four-block area. Assemblywoman Giunchigliani indicated the aforementioned neighbors asked her to sponsor legislation to prevent group homes, but she refused because she supports group homes and advocates for senior citizens and disabled persons. She continued she researched the issue and sponsored legislation based on her constituents’ request. Assemblywoman Giunchigliani contended many other legislators, including Assemblywoman Sandra J. Tiffany, Clark County Assembly District No. 21, and Assemblywoman Merle A. Berman, Clark County Assembly District No. 2, have "bought into" her efforts with regard to group homes. Assemblywoman Giunchigliani summarized A.B. 62 is an attempt to not only ensure that protections exist for group homes, but also recognize that neighborhoods "need to have some balance."

Assemblywoman Giunchigliani pointed out A.B. 62, as originally written, allowed for ten residents in a group home, because that number was allowed by regulations. She indicated state occupancy is addressed by the Bureau of Licensure and Certification, not by local governments.

Senator O’Donnell commented he has visited group homes, and he finds them "quite nice," not "onerous or obnoxious." He asked why A.B. 62 would limit the number of residents to six.

Assemblywoman Giunchigliani reiterated that limitation was suggested by the subcommittee on A.B. 62 and was not her decision.

Senator O’Donnell asked if Assemblywoman Giunchigliani would be willing to go back to ten residents. Assemblywoman Giunchigliani responded she would have no problem with such a change.

Assemblywoman Giunchigliani commented:

Senator Care noted 660 feet is 1/8 of a mile. He asked, "I’m [I am] wondering if that literally means front door to front door, or property line to property line. It could conceivably make a difference so that the 1/8 of a mile is actually a greater distance than that."

Assemblywoman Giunchigliani responded no testimony had been offered on that issue. She indicated she had originally set forth a spacing requirement of 1,000 feet, but after reviewing that distance, she decided it was "too large a block." She added she worked with the Legal Division of the Legislative Counsel Bureau to come up with the figure of 660 feet. Assemblywoman Giunchigliani stated, "My assumption was that it was in length, but I’m [I am] not positive." She suggested the provision could be clarified, if necessary.

P. Theresa Brushfield-Owens, Lobbyist, AARP West Regional Office, and Adult Care Association of Nevada, testified she was speaking on behalf of many individuals who were attending the meeting via videoconferencing. She asserted many people oppose A.B. 62.

Ms. Brushfield-Owens distributed a packet including prepared testimony on A.B. 62 and other pertinent information regarding group homes (Exhibit L. Original is on file in the Research Library.). She contended A.B. 62 would eliminate small, residential group homes, and she pointed out the Fair Housing Act, which outlaws housing discrimination, was passed 31 years ago. Ms. Brushfield-Owens commented people with disabilities want to live in neighborhoods that are safe and that provide the appropriate services.

Ms. Brushfield-Owens stated:

Ms. Brushfield-Owens asserted local officials are "drawn into disputes about group-care homes. She indicated large facilities must receive special-use permits in order to locate in residential neighborhoods.

Senator Neal asked if Ms. Brushfield-Owens owns a group home. Ms. Brushfield-Owens answered she currently does not own such a home, but she has in the past.

Senator Neal asked, "Did the outside character of the house change by having anyone in it?"

Ms. Brushfield-Owens replied no one rented the house after her facility left, due to high rents. She contended the trees and shrubs on the property deteriorated.

Senator Neal clarified, "I’m [I am] just talking about when you had the house and you had the disabled [residents], … did the outside character of the house change?"

Ms. Brushfield-Owens responded, "Only for the better, because the lawn was watered."

Senator Neal commented people could not determine the house was a group home simply from looking at the outside. He stressed group homes appear the same as other residential homes.

Ms. Brushfield-Owens testified:

Chairman O’Connell directed Ms. Brushfield-Owens to address A.B. 62.

Ms. Brushfield-Owens stated:

In response to a question from Chairman O’Connell, Ms. Brushfield-Owens explained group homes that offer single rooms are required to have 120 square feet of bedroom space per person. She added a bedroom must be 160 square feet for double occupancy, and a group home must have about 40 square feet of activity area per person. Ms. Brushfield-Owens noted there is also a requirement for a certain amount of space in the dining area. She pointed out the Bureau of Licensure and Certification set forth these requirements.

Ms. Brushfield-Owens continued NRS 278.021, as cited in section 1 of A.B. 62, provides restrictions on definitions of single-family residences to prevent the exclusion of certain homes for persons who are developmentally disabled. She contended that section of NRS is not a "vehicle for residential-care facilities." Ms. Brushfield-Owens expressed group homes do not have "house parents," though some residents have legal guardians. She asserted group-home residents need differing levels of assistance, and she pointed out facilities that care for persons with Alzheimer’s disease may employ two staff members during the day and one staff member at night. Ms. Brushfield-Owens mentioned some such facilities provide housing for all their staff members.

Ms. Brushfield-Owens stressed group-home residents are safe when an appropriate number of caregivers are present. She maintained, "If you were to decrease the amount of caregivers allowed to reside in a facility, then you … [would be] causing the operator to pay more money to a caregiver. They couldn’t [could not] afford it." She continued A.B. 62 would thus increase costs to group-home residents.

Ms. Brushfield-Owens asserted group-home owners are required to pay minimum wage, but it is difficult to find caregivers at that pay rate. She noted caregivers often get the benefit of a room in the group home, and restricting the number of caregivers who could reside in the home "would be terrible." Ms. Brushfield-Owens added 73 percent of small group homes are operated by persons with families who live at the facility. She offered the following example:

Ms. Brushfield-Owens stressed caregivers and residents are "an unusual family, but they’re [they are] a family." She contended A.B. 62 would cause some group homes to go out of business, thus forcing many residents to move.

Ms. Brushfield-Owens pointed out the Bureau of Licensure and Certification provides a registry of all licensed group homes at least twice a year. She indicated she has that list on the Internet, and she believes the bureau would be happy to put it on the Internet, as well. She maintained, "… Opening a registry … would be against the Fair Housing [Act] because it would discriminate in saying that you are having to list your house with an agency so that anybody can come and find out that you are a group-care home."

Ms. Brushfield-Owens commented the organizations she represents support S.B. 163, and she added A.B. 62 would not grandfather in existing facilities. She further noted neither licenses from the Bureau of Licensure and Certification nor contracts with the Department of Human Resources are transferable. Thus, Ms. Brushfield-Owens stated, a group-home operator could sell his or her home, but could not sell his or her business. She mentioned some people have their life savings invested in their group-care homes.

Ms. Brushfield-Owens asserted, "The small home takes care of the poor, indigent people of the State of Nevada." She said the state pays $1.07 per hour to care for the indigent, and for that $1.07, a provider must provide 24-hour care, food, shelter, supervision, and assistance. She maintained it is difficult to provide those services for that amount of money.

Ms. Brushfield-Owens continued A.B. 62 would "not [be] good for the industry," nor would it be good for group-home residents. She expressed the bill would violate the Fair Housing Act, and she indicated City of Edmonds v. Oxford House, Inc. "states that ten people can live in a home together unless the local municipality decides that all single-family residences must have a restriction." Ms. Brushfield-Owens elaborated if group homes are restricted to six residents, then all homes must be restricted to six residents.

With regard to the proposed spacing requirement, Ms. Brushfield-Owens stressed there must be a reason for such a restriction. She asserted she can see no legitimate purpose for implementing a 660-foot spacing requirement for group homes. She noted a concentration of mental-health group homes exists in one area of Clark County Senatorial District No. 7. Ms. Brushfield-Owens explained the department of mental health has an internal policy not to cluster homes, but the department faces a lack of affordable housing in other areas due to the payment of only $1.07 per hour for indigent care.

Ms. Brushfield-Owens stated a 12-bedroom house in Clark County Assembly District No. 9 was a group-care home, but "the people went out of business because they could not stand the stress of, every year, having the 660 feet." She said the owners wanted to expand to care for ten residents, "but they felt that … the fight would never be over." Ms. Brushfield-Owens contended transient people began living in the house, and "the house looks horrible."

Ms. Brushfield-Owens concluded "… All I can say is that I really feel that this is discriminatory, and I’ll [I will] close and let the other people speak."

Ivan M. Tippetts, Concerned Citizen, stated he has been involved in residential housing for all of his adult life. He indicated he has a general contractor’s license and a real estate license, and he is a certified general real estate appraiser. Mr. Tippetts further noted he owns the Wicker Basket Alzheimer’s Home. He indicated he would be speaking "mostly on behalf of people who are currently licensed with homes between seven and ten residents." He asserted such people would be "very adversely affected" by A.B. 62.

Mr. Tippetts expressed, "There isn’t [is not] a business that I know of that you can run by taking 40 percent off the top." He continued group-home owners have made "tremendous investments" in their properties in order to make them adequate for the care of ten people. He contended the regulations regarding such homes are very specific as to square footage and item placement, and most group-home owners go "far beyond" what the regulations require.

Mr. Tippetts stated it took him 1½ years to "jump through all the hoops" for getting licensed. He maintained no uniform system exists for getting a license, and he asserted he would have to go out of business if the number of allowed residents was lowered to six. He elaborated group-home operators must first go through the fire marshal and the appropriate city or county governments before going to the state for a license. Mr. Tippetts indicated, "Every one of these things [has] to match. If it says six people on our … business license, they cannot license us for ten. When I go to renew my license with the city, if it says six on my license, I’m [I am] down to six people." He concluded the allowance for ten residents is necessary in order to make group homes feasible.

Betty J. Gammon, Lobbyist, Residential Care Homes, testified she owns Adult Assisted Living, which consists of two group-care homes in Las Vegas. She mentioned she is licensed for ten residents at each facility.

Ms. Gammon asserted A.B. 62 provides no security for elderly persons or for group-home owners. She elaborated:

Ms. Gammon continued A.B. 62 attempts to exclude any group homes that have contracts with the state. She indicated the bill would basically address only "private elderly" care if the aforementioned exclusion was successful. She expressed most homes for mentally-challenged individuals have contracts with the state.

Ms. Gammon reiterated a group home must have a business license before getting a license from the Bureau of Licensure and Certification. She further noted the latter license must be in place before a group home can contract with the state. Thus, she concluded, A.B. 62 would affect even those homes with state contracts, despite the exclusion included in the bill.

Next, Ms. Gammon addressed the 660-foot spacing requirement proposed in A.B. 62. She pointed out the requirement would be left to the discretion of the city or county, and she offered a scenario in which the county approves a new group home to locate 640 feet from an existing group home. Ms. Gammon commented the owner of the older group home could decide to sell his or her facility a few years later, and the county could, at that point, prevent the owner from selling the business since it is less than 660 feet from the newer group home. Ms. Gammon noted the elderly people living in the older group home would have no security, and the home’s owner also would have no security, as far as knowing whether he or she could transfer the business or put it into an estate or trust.

Ms. Gammon asserted the 660-foot spacing requirement is a zoning issue. She maintained A.B. 62 attempts to temporarily "grandfather in" those homes that exist within 660 feet of each other. She commented, "So as long as we own that home, we are grandfathered in, and nothing can be done." However, Ms. Gammon contended the group-home license could be taken away if the home is sold or transferred. She offered the following example:

In response to a question from Chairman O’Connell, Ms. Gammon clarified she was referring to page 3, line 8, of A.B. 62.

Ms. Gammon continued:

Ms. Gammon went on to discuss the number of family members who would be allowed in a group home under A.B. 62. She indicated this issue does not affect her, her homes, or members of the Nevada Elderly Care Providers Coalition. However, she commented, "… I am very, very personally offended by this." Ms. Gammon explained, "… According to this bill, you could not have a husband and a wife and three children and provide care for even one elderly [person] in your home."

Ms. Gammon summarized her personal experience with group homes, noting she owned such a home in Oregon before moving to Nevada. She asserted, "I brought everything that I own into the State of Nevada, and I invested it here." She expressed she moved to Nevada because her family lives in the area, and she wanted to open a group home for the elderly in the state. Ms. Gammon commented:

Tom R. Skancke, Lobbyist, Nevada Elderly Care Providers Coalition, distributed a packet including explanations of some proposed amendments to A.B. 62, photographs of and pamphlets from various group homes, and letters in opposition to the bill (Exhibit M). He indicated he would also provide a copy of the coalition’s proposed amendments to Assemblywoman Giunchigliani.

Yvonne Brueggert, Concerned Citizen, distributed prepared testimony regarding A.B. 62 (Exhibit N). She noted she works as an advocate at the Nevada Disability Advocacy and Law Center, but she would not be speaking on behalf of her employer. Ms. Brueggert stated her 24-year-old son was born with disabilities.

Ms. Brueggert expressed she believes Assemblywoman Giunchigliani "had every good intention" in sponsoring A.B. 62, as did the Assembly in passing the legislation. However, Ms. Brueggert raised concern regarding the bill’s 660-foot spacing requirement. She asserted the Fair Housing Amendments Act of 1988 do not allow for such requirements, and she read from a 1998 congressional statement regarding those amendments, as set forth on page 2 of her prepared testimony (Exhibit N).

Ms. Brueggert stated, "I realize that A.B. 62, in its way, was intended to promote the integration of individuals in the community." She offered her support for that intention, but she expressed concern over "singling out" people with disabilities and requiring them to live in family homes that are 660 feet apart. She contended this requirement would "eliminate … choice in many ways."

Ms. Brueggert indicated the Legislature has provided funds to enhance community integration. She elaborated funding has been increased so that people can move from institutions into homes, and she asserted these people should be allowed to choose where they live. Ms. Brueggert maintained her son is a nice, hardworking person, but no one could know that unless they were acquainted with him, perhaps in a neighborly capacity. Ms. Brueggert continued many people have discriminated against her son due to his disabilities, and she concluded, "… I hope that you allow other people to have a choice of where they live and the ability to have their neighbors get to know them."

Ernest K. Nielson, Lobbyist, Washoe County Senior Law Project, expressed support for A.B. 62. He summarized the bill would impose a new definition of a "single-family residence" and would prohibit local governments from preventing the first group home in a neighborhood. He asserted the bill "does not say anything about the second group home within a 660-foot space." Mr. Nielson contended such a home would simply be required to go through the existing process for approval by the appropriate local government. He stated A.B. 62 contains language indicating that no inference should be taken by the 660-foot distance, which is "almost an arbitrary" number.

Mr. Nielson continued:

Chairman O’Connell closed the hearing on A.B. 62. Two statements in opposition to the bill were submitted for the record, one from Nancylee Romanaco, Concerned Citizen, and one from William Ineson, Concerned Citizen (Exhibit O and Exhibit P).

Chairman O’Connell opened the hearing on A.B. 131.

Robert J. Gagnier, Lobbyist, State of Nevada Employees Association (SNEA), distributed prepared testimony regarding A.B. 131 (Exhibit Q). He explained the bill would "establish collective bargaining for classified state employees." Mr. Gagnier expressed the legislation was sent to the Legislative Counsel Bureau in September 1997, and many parties have worked on it before and after that time. He further noted A.B. 131 is similar to A.B. 310 of the Sixty-ninth Session, which was passed by the Assembly.

Mr. Gagnier continued collective bargaining for local-government employees was established in 1969, but state workers were excluded. He noted 26 states currently allow collective bargaining for state employees, and Nevada’s state workers "remain the only group of workers in … [the state] without the right to negotiate wages and working conditions."

Mr. Gagnier pointed out the Legislature passed a resolution in 1969 urging the administration to work with SNEA on this issue. He said SNEA informally negotiated with Nevada governors for many years, and written agreements were reached with several of those governors. However, Mr. Gagnier asserted such practices are not followed today.

Mr. Gagnier contended salaries for state employees were equal to those for local-government employees in the early 1970s, but state employees’ salaries have since dropped below local-government employees’ salaries. He maintained local-government employees’ use of collective bargaining has greatly contributed to this disparity. Mr. Gagnier emphasized, "We simply must have a method of addressing our needs earlier in the process. We have tried other ways to address the matter of salaries, but to no avail."

Mr. Gagnier continued the personnel director must make recommendations for salaries during legislative sessions and must base those salaries on various factors. (See Exhibit Q.) Mr. Gagnier questioned whether such recommendations have been made and, if so, whether they were based on the appropriate criteria. He commented some state prisons currently cannot use all their units due to inadequate staff.

Mr. Gagnier stated collective bargaining is necessary not only for salary reasons, but also for concerns about working conditions. He expressed, "Many issues which we bring to the Legislature could be better addressed by contract."

Mr. Gagnier indicated management representatives express a willingness to discuss the relevant issues. However, he asserted, such representatives do not discuss or listen to concerns, but simply reject state employees’ requests or express an inability to address them.

Mr. Gagnier concluded collective bargaining is necessary because managers "frequently pit one organization against another" in the absence of a formal system and an exclusive bargaining agent. He asserted an organization accepts responsibilities when it is democratically determined as an exclusive bargaining agent. Mr. Gagnier noted concessions from the state and from citizens are sometimes in state workers’ best interest. He maintained, "Where you have competing labor organizations, it becomes impossible."

Mr. Gagnier offered to explain the bill in further detail upon request.

Senator Neal asked why state employees currently do not have collective bargaining. Mr. Gagnier answered business groups oppose collective bargaining for state employees, but he does not know of other reasons.

Senator Neal commented, "I would tend to think that the mere fact that if you have a worker-boss relationship, that even common law … recognizes that you have a right to bargain off your labor." He emphasized the importance of bargaining agreements and labor contracts, especially in the period following the Great Depression. He maintained, "I would tend to think that government would not fall prey to such a concept and recognize the fact that to bargain for wages and other living conditions is realizing the promise of democracy."

Senator Raggio stated collective bargaining for state employees "is different than the usual situation involving collective bargaining." He indicated the Legislature has rejected collective bargaining for state employees for many years, even when the Democrats were the majority party in the Senate.

Senator Raggio expressed collective bargaining "does not work … for state employees." He contended a bill regarding the issue is usually passed by the Assembly for political reasons, though members of the Assembly do not want such a bill to pass out of the Legislature.

Senator Raggio asserted Nevada governors have met with state-employee representatives in the past to try to come to a nonbinding agreement. Senator Raggio elaborated the governors then "used the method of discussion or negotiation to put forth their budget proposal[s]." He noted the state budget is "85- to 90-percent driven by employee costs." Thus, he expressed, the Legislature "would have almost nothing to do in shaping a budget" if employee costs were determined prior to session by agreement of the Governor and a state-employee bargaining unit. Senator Raggio commented, "And we have other things that are involved in the final budget determinations which run the gamut from health and welfare to mental health and mental retardation and prisons and courts and you name it; we have to do all those things." He asserted the Legislature would "have no say" if it were "constrained, either actually or constructively, by the amount of funds it has to work with" prior to the session.

Senator Raggio noted A.B. 131 would provide for a binding arbitrator, unless there were an agreement otherwise. Senator Raggio pointed out the decision of that arbitrator would dictate the executive budget for salaries and other working conditions. Senator Raggio concluded, "The Legislature, for all practical purposes, would be a rubber stamp and would have almost no say in what is the final determination."

Senator Raggio indicated previous bills similar to A.B. 131 would have provided that the Legislature could reject the arbitrator’s decision. He indicated the last legislation regarding collective bargaining for state employees would have provided that the arbitrator’s decision would become law unless both houses of the Legislature rejected it.

Senator Raggio pointed out:

Senator Raggio suggested the committee should consider the role of the Legislature in determining how taxpayers’ money is spent. He asserted that determination is the "most important position and aspect of our job." He noted collective bargaining has been rejected in almost half of the states in the United States. Senator Raggio further contended collective bargaining has a limited role in many states where it does exist. He elaborated, "It’s [It is] not real collective bargaining in the sense it’s [it is] being proposed in this bill."

Senator Raggio commented state employees currently have the opportunity to "bargain with the Legislature" for their salaries, and this procedure is appropriate. He added he advocates requiring, insofar as practical, the Governor to meet with and to come to an understanding with state-employee representatives regarding "what would be appropriate for these purposes."

Senator Raggio continued A.B. 131 presents another significant problem. He explained the bill would require binding arbitration to be in place by September or October, which is long before the Economic Forum’s first determination as to what monies are available for the state budget. Senator Raggio contended:

Senator Raggio indicated the Legislature has been "pretty generous" in providing cost-of-living pay increases when possible. He added the Legislature has sometimes given retroactive pay raises when funds were available. However, he noted sufficient funds are not available to provide such raises in 1999.

Senator Raggio maintained:

Mr. Gagnier clarified the Senate has passed two collective bargaining measures. He elaborated the Senate passed a collective-bargaining bill in 1973, but state employees’ collective-bargaining rights were tied to a reduction in mandatory bargaining issues for local government. He stated, "So it was a tradeoff. If the Assembly wanted to give us collective bargaining, they had to agree to curtail what was negotiable in local government. We were unwilling to do that to our brethren in local government." Thus, Mr. Gagnier noted, the legislation "died in the Assembly." He mentioned a collective-bargaining measure was passed by the Legislature in 1991, but was vetoed by the Governor.

In response to Senator Raggio’s previous comments regarding the timing of the arbitrator’s decision, Mr. Gagnier asserted A.B. 131 would provide "that the actual decision of the arbitrator and the final package is put together on December 31." Mr. Gagnier contended the dates of the Economic Forum were taken into account when determining the timetable set forth in A.B. 131.

Mr. Gagnier expressed, "Contrary to Senator Raggio’s view, we don’t [do not] think the system works." Mr. Gagnier noted NRS chapter 284 addresses how salaries should be set. He continued a salary survey from the Department of Personnel showed the salaries of state employees, on average, are 17 percent behind the Nevada marketplace. He stated the past three salary surveys have demonstrated that state workers’ salaries are behind the marketplace, with each survey showing progressively worse disparities. Mr. Gagnier elaborated the disparity between state-worker and marketplace salaries was 11 percent in 1993 and 13 percent in later years. He reiterated the average disparity is currently 17 percent.

Mr. Gagnier commented he had to attend another hearing. He asserted SNEA is opposed to A.B. 213, which was scheduled for hearing after A.B. 131.

Carole A. Vilardo, Lobbyist, Nevada Taxpayers Association, testified in opposition to A.B. 131. She stated she is "sympathetic" to the issue because state employees’ salaries are not comparable to those of Clark County employees. She added private employers have lost employees to Clark County, due to the county’s salary offers.

Ms. Vilardo indicated elected officials at a local-government level "serve as both the executive and the legislative branches of their government," while state government has "two very distinct branches." She commented:

Ms. Vilardo continued a process called "meet and confer" used to be utilized by the Governor and state-employee representatives, but that process has "gone by the wayside," as Mr. Gagnier testified.

Ms. Vilardo noted A.B. 131 raises a few more minor issues. She pointed out a balanced budget is required by the state constitution, and the Legislature must set the tax rates necessary to attain a balanced budget. She expressed the state faces program cuts or tax increases when revenue does not come in as expected. Ms. Vilardo emphasized state and local governments are different, and for that reason, at least one-half of the states do not have collective bargaining at the state level.

Senator Neal asked, "What would be wrong in permitting the employees to bargain within the revenues … that are there?"

Ms. Vilardo responded:

Senator Neal commented, "You don’t [do not] give the salaries. It’s [It is] that simple."

Ms. Vilardo responded, "… That’s [That is] a possibility, but I know the bill before you does not read that way." She indicated she served on a panel regarding NRS chapter 288, the local-government bargaining act. She stated that act provides for dissolution if a bargaining unit is reduced, but she could find no similar provision in the first reprint of A.B. 131.

Ms. Vilardo continued:

Senator Neal commented:

Ms. Vilardo responded:

Ms. Vilardo pointed out the Nevada Taxpayers Association has requested review and elimination of some exemptions. She emphasized employees should be paid, and all sectors of employment want to recoup the investments they make in employee training. However, she contended A.B. 131 would not "[get] us where we need to be." Ms. Vilardo mentioned it is difficult to compete with the salaries offered by Clark County.

Senator Neal noted:

Senator Neal noted many bills contain provisions for attorney’s fees, which have risen substantially. He asserted, "But yet, we cannot do anything for the state employees in terms of letting them come to the table and bargain for what they want."

Senator Neal concluded:

Mary F. Lau, Lobbyist, Retail Association of Nevada, testified in opposition to A.B. 131. She agreed the state needs to make sure it takes care of its employees. However, she contended collective bargaining would not accomplish that purpose in the long run.

Ms. Lau added the current procedure of going before the Legislature is very important, as is the differentiation between the legislative and executive branches. She asserted the collective-bargaining system sometimes lacks flexibility, and she commented:

David L. Howard, Lobbyist, Greater Reno-Sparks Chamber of Commerce, testified he has appeared in opposition to collective bargaining for state employees on seven previous occasions. He explained the chamber considers such a proposal "bad business."

Mr. Howard continued, "We live with collective bargaining at the local level." He noted he is a former Reno city councilman who was directly involved in NRS chapter 288. He further expressed he would support repealing that chapter, but he understands that is "politically impossible."

Mr. Howard addressed parity between state employees and other workers. He suggested state employees "have a good argument" with this issue, and he noted correctional officers, for example, receive lower pay than local-government public-safety officials. Mr. Howard contended this disparity exists because state correctional officers do not have a provision like NRS chapter 288. He explained the officers want a collective-bargaining provision for that reason. However, Mr. Howard maintained, "That doesn’t [does not] necessarily make it right."

Mr. Howard continued he has experienced collective bargaining in years during which a cost-of-living increase would have been below 3 percent. He noted firefighters were awarded raises of more than 10 percent in those years due to arbitration under NRS chapter 288. He commented, "That’s [That is] what can happen to you."

Mr. Howard concluded "the author of [NRS] chapter 288," former Senator Carl Dodge, testified against legislation similar to A.B. 131, in 1995. Mr. Howard indicated Senator Dodge conveyed that his original intent for collective bargaining for public employees had been "politically distorted" since its inception. Mr. Howard further contended Senator Dodge stated he would "go back and undo" NRS chapter 288, if he could.

Samuel P. McMullen, Lobbyist, Las Vegas Chamber of Commerce, related the chamber’s opposition to A.B. 131. Mr. McMullen commented his testimony is somewhat "awkward" because "real people, real issues, [and] real lives" are at issue. He indicated, "It’s [It is] not something we take lightly."

Mr. McMullen stated, "We have absolutely no interest in trying to hold people down in terms of wages or salaries… ." He asserted the chamber represents a balance between taxpayers and budgetary needs, so the chamber looks at the issue from a perspective of the amount citizens pay for government services. Mr. McMullen expressed collective bargaining for state employees would increase the costs of such services.

Mr. McMullen added public-sector employees are paid more than private-sector employees in jobs with similar responsibilities and equivalent titles. He referred to an article that appeared in the Las Vegas Review-Journal in September 1998, and he noted that article indicated pay rates for government jobs in Nevada are 21 to 52 percent higher than those for equivalent jobs in the private sector. Mr. McMullen elaborated the article said private-sector workers earn 83 cents for every dollar earned by a government worker. He commented:

Mr. McMullen contended collective bargaining may not be a positive prospect. He addressed specific concerns with A.B. 131, noting the bill would change the Legislature’s role. He explained the bill would make budgetary decisions "much more troublesome and difficult" because many relevant issues would be predetermined in a political sense. Mr. McMullen pointed out the bill could allow arbitration hearings and court cases to decide what state-employee salaries should be before the Legislature considers the budget.

Senator Neal asked what part of the Nevada Constitution requires a balanced budget. Mr. McMullen answered he did not know off-hand.

Senator Neal suggested the state constitution "asks for" a balanced budget, and provides that if the state’s expenditures exceed its income, sources must be found to raise that income. Senator Neal commented, "Let’s [Let us] not just say it calls for a balanced budget, but it also says what you have to do in order to get there. And it leaves that open there, where you can go ahead and raise those revenues to do that … ."

Mr. McMullen agreed and reiterated A.B. 131 would "predestine" and "torque" budget decisions. He stressed many portions of the budget are already "set and established," and the budget contains few variable costs. He indicated achieving a balanced budget would become more difficult if those variable costs were "cramped" by processes such as the one proposed in A.B. 131. Mr. McMullen expressed such processes could also increase the possibility that more taxes would be necessary, though the Legislature may not believe raising taxes would be "prudent." He asserted, "We think that decision ought not to be influenced or compromised by another process."

Mr. McMullen continued A.B. 131 would require negotiation with the Governor, then mediation and arbitration, if necessary. He said section 39 of the bill would allow "last-best-offer arbitration," which is not always desirable. He explained that form of arbitration means an arbitrator cannot "look behind and move the numbers around," but can only choose between each party’s final offer.

Mr. McMullen maintained A.B. 131 would provide that "once all that’s [that is] done, in December, you’re [you are] given a ‘fait accompli’ where you have to look all of the … employees that are affected by that in the face and make, … essentially, a very political judgment."

Mr. McMullen stated A.B. 131 contains several confusing stipulations. For example, he indicated section 42 seems to allow a provision of a collective-bargaining agreement to be put into effect immediately if it does not require an appropriation. Mr. McMullen commented there are very few instances in which a provision of a collective-bargaining agreement does not affect working conditions or, in some way, the cost of doing business. He asserted, "And so … it may not be that the test is whether or not it just requires an appropriation. It may be much broader than that, and this language doesn’t [does not] speak to that."

Mr. McMullen contended sections 43 and 44 of A.B. 131 raise timing questions. He explained the bill would allow parties to confer and resubmit a legislative measure if the Legislature turns down all or part of a collective-bargaining agreement. He added subsection 3 of section 43 of A.B. 131 would provide for that procedure to be done in a special session. Mr. McMullen suggested that provision is a "specific policy judgment," which should be made by the committee. He maintained the provision in subsection 3 of section 43 "points to the fact that this starts to drive the process." He elaborated the timing and coordination of such provisions, taken along with the constitutional requirement for a balanced budget, would begin to "drive" the legislative process. Mr. McMullen concluded A.B. 131 presents technical questions, as well as policy questions.

Senator Neal asked, "What would be wrong, and just block out the salary, what would be wrong in permitting state workers to bargain for working conditions?"

Mr. McMullen replied the existing processes are sufficient to resolve questions on that issue. He contended those processes should be effectively used, and he indicated working-condition issues should be resolved among employers and employees. However, Mr. McMullen noted people may not be satisfied with the resolution of such issues. He emphasized personnel processes should be "fixed" if they are not working, but not in a manner that "distorts" the legislative process and policies.

Senator Neal summarized the Las Vegas Chamber of Commerce opposes collective bargaining for state workers on any issue.

Mr. McMullen responded the chamber "[has] a problem with collective bargaining in any sense." He stated:

Senator Neal noted collective bargaining is authorized for local-government employees, but not for state employees. He commented, "All one government, just a different level. So don’t you [do you not] find something wrong with that?"

Mr. McMullen replied he supports Mr. Howard’s testimony on that question. Mr. McMullen explained, "I think the lesson for the chamber is that collective bargaining has increased the costs of government, and it may have. And it’s [it has] done that in a way that may not be as cost-effective as it should be."

In response to another question from Senator Neal, Mr. McMullen clarified he is a paid lobbyist for the Las Vegas Chamber of Commerce.

Chairman O’Connell closed the hearing on A.B. 131 and opened the hearing on A.B. 213.

Assemblyman Wendell P. Williams, Clark County Assembly District No. 6, testified he has worked as a public employee for about 25 years. He indicated he had been opposed to legislation similar to A.B. 213 during part of his years of public service.

Assemblyman Williams maintained public service is very different from private-sector employment because public employees "work for the people." He contended public employees’ medical and sick leave records should be private. However, he asserted, if a public employee commits an act on the job that jeopardizes the safety of the general public or of fellow workers, that information should be public after an investigation.

Assemblyman Williams continued there have been "cover-ups" of some such situations in the past. He stated he has seen instances in which an injury occurs in the workplace, and the public employee who caused the injury is reprimanded to some degree. However, Assemblyman Williams stressed the relevant information was not released, and another employee was later injured due to the same workplace conditions. Assemblyman Williams said, "If we work in the public sector and we mess up, … we take the punishment, and we deal with it. In this particular case, I think it should be revealed." He reiterated personal information, such as medical records, should be kept private, but other information should be released if the public is in jeopardy.

Chairman O’Connell asked for more details regarding the aforementioned injured worker. Assemblyman Williams explained, "There is a situation where … an employee is negligent, or they are working in a situation and they’re [they are] not performing in a safe way. And as a result of that, an injury occurred to someone else who was working along with that particular person." Assemblyman Williams continued the responsible employee discussed the situation with the supervisor and was reprimanded "secretly." Assemblyman Williams expressed the conditions which caused the injury were not released to the public or to the other employees in the workplace. Thus, he noted, the injury-causing condition was not corrected.

Assemblyman Williams emphasized, "In dealing with investigations such as this, we’re [we are] talking about an investigation file and not a personnel file or a … personal file." He commented people might testify that A.B. 213 would hinder employees from reporting sexual harassment. However, Assemblyman Williams contended, the bill would instead protect employees in that situation. He elaborated:

Assemblyman Williams related the aforementioned concerns represent the only opposition he has heard to A.B. 213, but they do not present a "sound argument."

Senator Care stated A.B. 213 would apply to situations other than injuries, such as accusations of embezzlement. He elaborated the bill could apply to any investigation. Senator Care raised concern regarding sexual-harassment charges, noting a situation could arise in which an employee accused of sexual harassment is exonerated after an investigation. Senator Care asserted that information would become a public document, and he expressed, "I know that the theory is that … he [or she] shouldn’t [should not] have anything to worry about because he [or she] was exonerated, but I can tell you that people who read that sort of thing are going to say, ‘Well, I’ll [I will] bet he [or she] did it anyway,’ [or] that sort of thing."

Assemblyman Williams responded he understands Senator Care’s point, but Assemblyman Williams indicated he believes a person falsely accused of sexual harassment would want that information made public. Assemblyman Williams mentioned, "Someone may still assume that he [or she] did it anyway. But if it’s [it is] not made public that they didn’t [did not] do it, then everybody will surely … presume that they did it."

Senator Care stated he agrees "to some extent." He maintained if the accusation is public knowledge, then the falsely accused employee would certainly want information regarding his or her exoneration to be made public. However, Senator Care pointed out A.B. 213 refers to the completion of the investigation. Thus, he asserted, the situation would presumably be confidential when the allegation is made, and then the relevant information would become public upon the employee’s exoneration.

Senator Neal commented, "… As I understand this, … this information is triggered by an internal investigation." Assemblyman Williams agreed. Senator Neal continued:

Assemblyman Williams indicated Senator Neal’s statements were correct. Senator Neal summarized an internal investigation acts as the "trigger" for A.B. 213.

Assemblyman Williams agreed and noted the public would know if an employee was exonerated or found to be at fault after the investigation information was released. Assemblyman Williams asserted, "I still think that if a person is victimized, the public has a right to know. And if a person is exonerated, surely, I would think that a person would want to know, and the public has a right to know." Assemblyman Williams reiterated information would be made public after the completion of the investigation.

Senator Neal stated, "It goes on to say that during the investigation, all of this information must be in one file." Assemblyman Williams clarified information could not be put into personnel or medical files. Senator Neal commented all the pertinent information would thus be contained in one investigative file.

Senator Care asked how many employees would be affected by A.B. 213. Assemblyman Williams answered he does not know.

Kent F. Lauer, Lobbyist, Nevada Press Association, testified that association represents 41 newspapers throughout the state. He asserted the Nevada Press Association supports A.B. 213 because the bill recognizes "the public’s right to know," which is a "fundamental principle of our democratic system." However, Mr. Lauer indicated the bill should not be limited to employees of the Executive Branch of state government, but should apply to all public employees instead.

Mr. Lauer continued A.B. 213 "should not be necessary" because the information covered by the bill should be open to inspection pursuant to the public-records law. He elaborated that law states that all public records, unless declared confidential by statute, are open to public inspection. He commented he does not think the information that would be made public under A.B. 213 is declared confidential by any statute. However, Mr. Lauer pointed out the public-records law is open to various interpretations. He said, "If a government agency determines that this information is confidential, despite what the public-records law says, a person’s only recourse is to file a lawsuit to obtain access to that information."

Mr. Lauer suggested the committee should consider the public’s interests with regard to A.B. 213. He contended:

Mr. Lauer claimed A.B. 213 involves accountability to the public. He asked, "How can the public determine if an investigation of a public employee was handled properly if the investigation is kept secret?" He further asserted public confidence in government is enhanced when public officials must answer to scrutiny.

Mr. Lauer expressed A.B. 213 would "ensure that the truth comes out, not rumors." He continued if there is a serious case of misconduct by a public employee, there will surely be rumors about that conduct in the workplace. He asserted the truth never emerges if the matter is kept confidential.

Mr. Lauer indicated those who oppose A.B. 213 might argue that revealing information pursuant to the bill could embarrass public employees or even ruin careers. Mr. Lauer agreed those situations are possible, but he contended they do not outweigh the need for public accountability.

Mr. Lauer continued those who oppose the bill might argue that public employees have "personal privacy rights." However, he reiterated these employees work for the taxpayers.

Mr. Lauer stated people might argue that A.B. 213 would have a "chilling effect" on victims of sexual harassment. He asked, "Should government employees who commit sexual harassment be protected by secrecy?"

Mr. Lauer concluded:

Senator Porter asked, "What would you consider a strong justification?"

Mr. Lauer replied, "In this case, I don’t [do not] think there is a strong justification."

Senator Porter clarified he was not referring to the bill specifically. Mr. Lauer responded he believes an individual’s medical records are examples of information that should be kept private, as are "government secrets." He added information should be kept private if it could "truly jeopardize our national security."

In response to another question from Senator Porter, Mr. Lauer expressed information should be made public if it involves an employee committing a "serious infraction" or "a serious case of misconduct" in the workplace.

Senator Porter asked, "What if they were found innocent?"

Mr. Lauer reiterated rumors would likely be present in the workplace if any serious misconduct were occurring. He emphasized he would want his innocence revealed after an investigation if he had been wrongfully accused of misconduct.

Senator Porter noted an accusation of misconduct could be held confidentially between the involved parties and the employer. He further commented an investigation could be performed without anyone else’s knowledge. He asked if it would be appropriate, under those circumstances, to release information that an employee "may be guilty," only to find out later the he or she is innocent.

Mr. Lauer answered he thinks it is unrealistic to assume that nobody but the involved parties and a supervisor would know about an accusation of serious misconduct. He stated, "I don’t [do not] think I’d [I would] be afraid of information revealing that I was a good, honest employee that [who] had committed no wrongdoing."

Senator Porter asked, "What if the law was crafted [so] that information was available on those areas that they were found guilty of, so they’re [they are] innocent till proven guilty?"

Mr. Lauer responded, "In other words, Senator, if they are found innocent, that would still be kept secret? Only when they’re [they are] found guilty of some infraction it would be released?"

Senator Porter explained he knows people in the public and private sectors who have been wrongfully accused of misconduct. He asserted the breakdown of the confidential nature of the employer-employee relationship has unjustly ruined their careers. He emphasized the leaking of false accusatory information "destroyed them and their family [families] forever." Senator Porter continued information should be public if an employee is found guilty of misconduct. However, he asked, "Why should they be tarred and feathered prior to the finding of guilt?"

Mr. Lauer replied he does not have a good answer for that question. He agreed information should be made public if the employee is found guilty, but he asserted that practice is not currently occurring.

Senator Porter reiterated his concerns about making potentially harmful information public during the investigation stage. He stressed, "I think they should have the benefit of privacy until … it’s [it has] been documented that they are at fault."

Mr. Lauer expressed concerns that an investigation could be "whitewashed" or not performed thoroughly. He asserted the person raising an allegation could be ignored, and a guilty person could be exonerated. He indicated the public needs to know about such investigations.

Senator Porter asked, "But you really believe that even false information should be public prior to them being found guilty?" Mr. Lauer answered A.B. 213 would make information public only after an investigation is complete. Senator Porter pointed out the completion of an investigation is different from a finding of guilt.

Senator Porter continued he understands the public’s right to know, as well as the employee’s right to be considered innocent until proven guilty. He raised concern regarding the word "investigation" in A.B. 213. He noted, "That doesn’t [does not] define innocent [innocence] or guilt; it just says ‘investigation.’"

Mr. Lauer stated, "I would have no objection if you wanted to put some language in there that would specify that upon a finding, somehow." He added employees have sometimes been reprimanded pursuant to internal investigations. However, he continued, the relevant information has been considered a personnel matter and has thus been unavailable to the public.

Senator Porter suggested, "I think we can find some common ground here."

Senator O’Donnell presented a possible scenario in which a casino employee has a personnel problem that results in a reprimand or in termination. Senator O’Donnell pointed out that information would not be made public, and he maintained, "It seems to me that the employees of casinos are no different than state employees who work and serve the state in a different capacity."

Senator O’Donnell continued:

Senator Neal commented if an individual breaks a rule, he or she cannot have an expectation of privacy.

Senator O’Donnell responded employees sometimes "break the rules," and when his employees do so, he reprimands them privately. He asserted, "I don’t [do not] tell them, ‘Now that you’ve [you have] broken this rule, this is public, and I’m [I am] going to tell every employee in the whole department that you broke a rule.’" He concluded he respects his employees’ privacy and dignity, even if they break rules.

Chairman O’Connell asked Mr. Lauer if he was present at the hearing regarding A.B. 213 in the Assembly. Mr. Lauer answered he attended that hearing.

Chairman O’Connell asked why Assemblyman Williams limited the bill to the Executive Branch of state government. Mr. Lauer replied he does not recall any testimony on that issue. Chairman O’Connell asserted she does not understand why the bill would be limited in that manner.

Senator Neal commented, "That’s [That is] a disjunctive term there. It’s [It is] not limited to that. That’s [That is] disjunctive language there. It says, ‘… the conduct of an officer or… ."

Chairman O’Connell responded, "[Yes], but it says, ‘… in the executive department.’" She again asked why the bill would be limited in that way.

Senator Neal contended the bill is not limited to state government, but Chairman O’Connell disagreed. Upon further consideration of the bill, Senator Neal agreed the bill would be limited, as Chairman O’Connell suggested.

In response to Senator O’Donnell’s previous comments, Mr. Lauer noted A.B. 213 addresses public employees, not private employees. He presented an analogy for this situation, suggesting the owner of a business would expect to know of any misconduct on the part of his or her employees. Mr. Lauer asserted the taxpayers are the employers of public employees. He maintained, "It is not right. These people are drawing a public salary, [or] a taxpayer salary. This information shouldn’t [should not] be kept secret from them."

Mr. Lauer continued:

Senator Titus commented A.B. 213 addresses only employees of the Executive Branch, not other government employees. She asked why Executive Branch employees are "singled out" in the bill, and she asserted that limitation "makes no sense at all."

Mr. Lauer recalled he previously testified the Nevada Press Association believes A.B. 213 should not be limited to state employees, but should apply to all public employees.

Senator O’Donnell stated:

Mr. Lauer answered, "Sure, but this bill doesn’t [does not] cover groceries, cars, [or] social security numbers. Of course people have a right to privacy to that kind of information." He clarified he has been talking about situations in which public employees are involved in misconduct while on the job.

Senator O’Donnell asked, "But … which do you think would be more invasive: knowing what kind of coffee you buy, or [knowing] your personnel records?"

Mr. Lauer emphasized employers have a right to know how employees are performing on the job.

Senator O’Donnell reiterated he would not "tell the entire world" about alleged incidents of misconduct by his employees. He stressed he would instead take the relevant employees aside and deal with the issue privately. Senator O’Donnell concluded, "… You in the press don’t [do not] realize the power you have."

Senator Care commented he agrees fundamentally that the public has a right to know how its tax dollars are being spent. However, he again raised concerns regarding employees who are accused of misconduct, but then exonerated of the charge. Senator Care continued he has read about situations in which the press has sought relief to obtain certain records. He asked if Mr. Lauer is aware of any pattern in Nevada court rulings on that issue, especially with regard to ongoing or completed investigations.

Mr. Lauer answered Nevada has not had many court cases pertinent to that issue.

James T. Spencer, Senior Deputy Attorney General, Government Affairs Section, Civil Division, Office of the Attorney General, testified in opposition to A.B. 213. He stated public entities have been sued for "six-figure liability" in sexual-harassment cases over the years. Mr. Spencer asserted those court cases have clarified that, in order to avoid liability, public entities must perform a quick and thorough investigation into sexual-harassment charges, followed by a prompt remedy.

Mr. Spencer maintained all treatises on sexual-harassment cases say that such cases should be kept confidential. He explained the victims and the witnesses need to be assured of confidentiality so that they will come forward with their information. He emphasized victims should be encouraged to come forward and tell their stories promptly because the situation might become "untenable" for them if they wait and the harassment continues.

Mr. Spencer expressed the liability of the state increases if victims wait to report incidents of sexual harassment. He contended, "If they wait for 15 acts because they’re [they are] afraid that their filing of this or the investigation of this will become public, they stay out of the reporting arena." On the other hand, Mr. Spencer noted, if the victim comes forward after the first incident, the state’s liability is lower because the situation can be remedied. Mr. Spencer indicated the issue is similar for witnesses of sexual harassment because they will not likely come forward if their names will be "used publicly."

Mr. Spencer continued the attorney general’s office promotes a sexual-harassment policy that encourages victims to immediately report sexual harassment. He added state employees can use a special hotline for such reporting, and he emphasized the state’s interest is to avoid liability and to protect state employees from sexual harassment.

Mr. Spencer stated a pamphlet published by Commerce Clearinghouse sets forth another reason that investigations into sexual-harassment cases need to be kept confidential. From that pamphlet, he read, "Making sure that sexual-harassment complaints and investigations are handled as confidentially as possible not only will encourage employees to come forward with their complaints, but will also reduce the risk of a defamation lawsuit." Mr. Spencer explained that statement applies especially to the issue of false claims. He elaborated if an employee files a report that he or she witnessed sexual harassment, and if that information becomes public, the employee who filed the report can be sued. Mr. Spencer concluded, "That’s [That is] another chilling effect from victims or witnesses coming forward in sexual-harassment cases."

Reading again from the aforementioned pamphlet, Mr. Spencer indicated, "When an investigation is completed, regardless of the result, all records should be kept not in the accused’s personnel file, but in a separate confidential file. Don’t [Do not] broadcast the results of investigations as an example to others or as a training tool." Mr. Spencer stressed it is important to keep sexual-harassment investigations confidential because releasing information about the investigation of a false charge "creates another victim." He contended sexual-harassment charges are "embarrassing" and "sensitive," so they can do emotional damage to people who are falsely accused.

Mr. Spencer went on to address general discipline, recalling Assemblyman Williams had raised concerns regarding workplace safety. Mr. Spencer pointed out A.B. 213 is not limited to that issue, and the bill applies to any investigation which could lead to discipline. He said the State of Nevada has a disciplinary system for classified employees, as set forth in NRS chapter 284. Mr. Spencer elaborated that system provides for a hearing before a contract hearing officer. He explained the hearing and the hearing results are public, but the investigation into the matter should not be made public. He asserted, "For the same reasons that you will not get honest witness testimony, necessarily, you will … possibly have a tainted hearing after we have read about this investigation and its results." Thus, Mr. Spencer maintained, investigations into any disciplinary matter for classified employees should be kept confidential until a determination has been made in the case.

Senator Neal asked who determines whether or not there will be a hearing, as Mr. Spencer described. Mr. Spencer answered employees can file appeals with a contract hearing officer for suspensions, terminations, demotions, or transfers for harassment purposes. He continued the hearings occur according to a time table, and they are adversarial, usually with attorneys present. He added the hearing officer is also a "very experienced attorney." Mr. Spencer indicated if an employee does not file an appeal, he or she accepts the proposed discipline.

Senator Neal asked, "Who determines whether or not there is a hearing when the investigation is initiated by the executives?"

Mr. Spencer replied, in the case of classified employees, the Executive Branch would determine whether misconduct occurred. He explained "everything goes away" and no discipline is imposed if the misconduct did not occur. However, he noted, if the department head determines that misconduct did occur, discipline is imposed according to a pre-disciplinary process, in which the employee can try to convince the executive-department head that misconduct did not occur or that the discipline is too severe. Mr. Spencer stated the employee can then accept the outcome of that process. Conversely, Mr. Spencer expressed, if discipline is to be imposed, and if the employee disagrees with the outcome of the pre-disciplinary process, he or she can file for a hearing, with the assistance of an employees association or an attorney. Mr. Spencer mentioned, "The investigation, in this case, would stop, and then the determination to impose discipline comes next." He reiterated no discipline is imposed if the investigation discloses that no misconduct occurred.

Senator Care asked why an investigation should not be made public if an employee admits to misconduct, accepts the associated discipline, and does not choose to appeal. He clarified he was referring to cases that do not involve sexual harassment.

Mr. Spencer answered the confidentiality of discipline that is imposed and not appealed is addressed in the regulations of NRS chapter 284. He indicated that information is made available to the appointing authority where the employee currently works and to any appointing authority who might be interested in hiring the employee. Mr. Spencer asserted the information is also available under court order, but it is not made public. He maintained he cannot testify regarding the intent behind keeping such information confidential, but he surmised perhaps the information would hurt the employee more than it would benefit the public.

Senator Care mentioned Florida passed a law that prevented the press from publishing the names of rape victims. He indicated a newspaper violated that law, which was subsequently declared unconstitutional. He continued he does not know if a similar law exists in Nevada, but he pointed out the news organization he worked for never published the name of a rape victim in his 10 years there, as a matter of policy. Senator Care noted the same logic applies to keeping the names of juveniles confidential, unless they are certified as adults. He concluded, "[For] a lot of this, … you just have to trust the press. But I gather, in a case like this, if the press got the investigation, and the victim of sexual harassment was named, you wouldn’t [would not] necessarily trust the press if the press had a policy [that] they would not publish that name."

Mr. Spencer stated the purpose of discipline is not to punish an employee for wrongdoing, but to put that individual "back in the groove" as a successful employee. Mr. Spencer indicated in most cases, the employee just "needs a nudge," and the disciplinary information should be confidential because it does not serve the public’s interest to embarrass that employee or hinder his or her career.

Gary H. Wolff, Lobbyist, testified he usually represents the Nevada Highway Patrol Association, but he would be speaking on behalf of "every police officer and most of the police agencies in the state" regarding A.B. 213. Mr. Wolff said he served 31 years as a police officer, and during that time, he conducted several internal-affairs investigations. He maintained employees of the highway patrol are held accountable for their actions, and the patrol is "very military-like."

Mr. Wolff contended A.B. 213 would "burn off" any informant who could be used in investigations of issues that are "less than criminal" in nature. He added if a highway-patrol matter is criminal, the internal investigation stops immediately, and the case is turned over to the appropriate agency. Mr. Wolff pointed out criminal matters are public, but A.B. 213 addresses internal issues which are not at a criminal level.

Mr. Wolff continued the highway patrol uses informants to provide information on internal investigations, so the patrol keeps the information confidential. He stated A.B. 213 would allow newspapers to print the names of such informants, who would thus be fearful of coming forward. He asserted the highway patrol has terminated people subsequent to internal-affairs investigations, though those investigations were not on criminal matters.

Mr. Wolff contended A.B. 213 is "selective" and "too broad." He commented, "I was proud to serve the people of the state for 31 years, but I never thought [for] one day they owned me." He expressed he earned a salary and carried out the duties of his occupation, and he elaborated state employees have an obligation to serve the state by doing their jobs. Mr. Wolff maintained:

Senator Care commented "personalities" are often involved in ongoing investigations, and somebody usually calls a reporter. Senator Care indicated that person then becomes a confidential source. He continued, "We have a shield law in this state, and … we should have a shield law." He pointed out, "Oftentimes, the investigation that you thought was secret is on the front page of the paper." He contended other involved parties might believe the news story is erroneous and might thus call a reporter to attempt to "straighten the facts out."

Senator Care noted A.B. 213 would provide that information regarding an ongoing investigation would be confidential. He asked, "[Do] you think this would preclude a public employee from discussing anonymously, with a reporter, the contents of an ongoing investigation?"

Mr. Wolff answered, "You’re [You are] never going to stop this." He elaborated disgruntled employees will always go to the press, and he clarified he is not attacking the press, which is protected under the First Amendment to the United States Constitution.

Mr. Wolff raised concern that A.B. 213 would "open a huge door." He expressed people have the right to dignity, and employers have the right to conduct an investigation and to ask informants to come forward with information, which will be kept confidential. Mr. Wolff concluded A.B. 213 would allow "every bit of information" in an internal investigation to be made public. He stressed a person who is determined to be guilty of misconduct in the workplace is not convicted of a crime. He indicated no one has a problem with releasing information on criminal matters, but internal matters should not be made public. For example, Mr. Wolff asserted, an employee who complains of sexual harassment would likely be "humiliated" if his or her name were released.

Kathy Naumann, Lobbyist, Nevada Conference of Police and Sheriffs, testified in opposition to A.B. 213. Ms. Naumann maintained, "Internal-affairs investigations, surrounding peace officers have a little more control over them. They have a little more stringent parameters when they respect the rights of peace officers under federal laws, as well."

Ms. Naumann asserted, "I can speak to the fact that, under civilian employees, as I look at this bill, I think the state is taking on a tremendous financial liability, potentially, with litigation." She raised concerns regarding the scope of A.B. 213.

Ms. Naumann continued, "At the very end of this bill is only the beginning of where truth or guilt is determined." She elaborated the disciplinary process begins only after an investigation is complete, at which point people are "just beginning to exercise their due-process rights" to file grievances or to question findings. She emphasized, "This is not a court of law when your boss says you’re [you are] guilty of something." Ms. Naumann stressed A.B. 213 would "abrogate the right of an individual public employer not to due process."

Senator Neal asked if Mr. Wolff supported A.B. 304.

Mr. Wolff responded he supported that bill.

Senator Neal asked, "Isn’t this [Is this not] just the converse of that?"

Mr. Wolff answered, "No, I think they work hand in hand, Senator. … My position has always been to tell the truth. And all A.B. 304 did was required people to come on in and file the complaints. I’ve [I have] taken a lot of complaints. Just tell the truth; that’s [that is] all we’re [we are] asking." Mr. Wolff indicated A.B. 213 would stop people from coming forward because the highway patrol would be obligated to tell them that the information they provided would become public after the investigation.

In response to a comment from Senator Neal, Mr. Wolff stated the press has often come to the aid of oppressed people. However, he asserted, the press should not be "sitting at the doorstep" and examining people’s personal lives at the workplace. He reiterated managers must be trusted to do their jobs.

Ms. Naumann added A.B. 213 could create some "innocent victims" who could be exposed to the public without notice. She explained:

James Richardson, Lobbyist, Nevada Faculty Alliance, stated A.B. 213 raises some difficult policy issues. He stressed the alliance is not trying to protect wrongdoing.

Mr. Richardson pointed out a provision similar to the one in A.B. 213 was taken out of the omnibus bill by the Assembly in 1997. He indicated the provision was eliminated from that bill due to the concerns that have been expressed regarding A.B. 213. Mr. Richardson recalled he asked employees on college campuses for their opinions on the issue. He relayed those employees unanimously believed a provision like the one in A.B. 213 would have a "chilling effect" on their willingness to bring charges such as sexual harassment. He elaborated employees were afraid their names would be made public. Mr. Richardson emphasized the Nevada Faculty Alliance opposes A.B. 213 because the bill would "lead to more problems than it solves."

Thomas J. Ray, General Counsel, University and Community College System of Nevada, testified the system believes personnel files and matters relating to the conduct of employees should be confidential. He stated the system opposes A.B. 213 for that reason.

Mr. Ray indicated the term "internal investigation" is ambiguous, and he expressed some situations that might be considered investigations would not be appropriate for public scrutiny. For example, he stated, a supervisor might examine the records of an employee due to a concern regarding abuse of sick leave. Mr. Ray continued the employee might produce a letter from his or her doctor explaining that the employee suffers from a medical condition, and the file would then be closed. Mr. Ray asked if that situation would be considered an internal investigation which would be subject to public scrutiny under A.B. 213.

Mr. Ray asserted for every substantial investigative case, hundreds or thousands of cases exist regarding everyday matters which should not be subject to public scrutiny. He contended state employees should not be "stripped bare of all rights of any citizen," even though they serve the public.

Mr. Ray explained the University and Community College System of Nevada has two employee categories: classified employees and professional staff. He pointed out professional staff is mostly faculty members. He indicated the system’s classified staff would be subject to the process previously outlined by Mr. Spencer for other classified employees. Mr. Ray commented the system’s professional staff has a "very detailed code" for discipline, and that code is included in the employees’ written contract for employment. He asserted professional employees of the system thus have a contract right to maintain the confidentiality of certain records. He stated A.B. 213 would raise a constitutional issue regarding the impairment of those contract rights.

Mr. Ray emphasized the Nevada Administrative Code, the Federal Privacy Act, and the Nevada open-meeting law have always recognized that personnel matters are entitled to some confidentiality. He contended the state has "struck a fair balance" in existing law and practice between the public’s right to know and the individual’s right to confidentiality. Mr. Ray expressed regulations provide for a hearing process for any severe matter of discipline. He elaborated the findings and the decision that come out of that hearing are public documents, as are any appeals.

Mr. Ray concluded, "Lastly, as to the notion that if there’s [there is] a whitewash and if there’s [there has] been a victim, well, … we’re [we are] only talking about the treatment of the employee. The victim has other rights." For instance, he asserted the victim can file a civil lawsuit or file a complaint with the Equal Employment Opportunity Commission.

Senator O’Donnell asked Mr. Lauer if he releases names of his sources or if they are kept confidential. Mr. Lauer replied he is not a working reporter, but news reporters do not violate the confidentiality of their sources, as a general rule. He added a shield law protects reporters from divulging that information.

Chairman O’Connell closed the hearing on A.B. 213 and opened the hearing on Assembly Joint Resolution (A.J.R.) 7.

Assemblywoman Christina R. Giunchigliani, Clark County Assembly District No. 9, indicated A.J.R. 7 is similar to Senate Joint Resolution (S.J.R.) 8 and A.J.R. 9 of the Sixty-ninth Session.

Assemblywoman Giunchigliani asserted A.J.R. 9 of the Sixty-ninth Session came to the Senate late in the Sixty-ninth Legislative Session and went directly to the Senate Committee on Finance, which decided not to take action.

Assemblywoman Giunchigliani explained A.J.R. 7 would allow school districts to bond against the state bond indebtedness for the purposes of school construction. She maintained this ability would be especially important to rural counties.

Assemblywoman Giunchigliani proposed an amendment to A.J.R. 7 to clarify that the resolution would apply to "K-12 schools" (Exhibit R). She indicated Legislative Counsel recommended the proposed amendment be made to either A.J.R. 7 or S.J.R. 8, whichever bill is processed. Assemblywoman Giunchigliani commented she does not care which of those resolutions is processed, but she requested that her proposed amendment be considered for the relevant bill.

Senator O’Donnell stated each school district must currently produce its own funds for building schools. He contended A.J.R. 7 would "place the responsibility upon the entire state for … paying off the bonds to use to build schools."

Assemblywoman Giunchigliani responded:

Chairman O’Connell commented Michael R. Alastuey, Lobbyist, Clark County Government, prepared "the majority of the language" for legislation like A.J.R. 7. Chairman O’Connell indicated she met with Ms. Vilardo and Mr. Alastuey to consider how the state could assist with funding for school construction without becoming involved with the construction itself. Chairman O’Connell stated the proposal outlined in A.J.R. 7 reflects Ms. Vilardo’s and Mr. Alastuey’s suggestion. Chairman O’Connell continued both she and Assemblywoman Giunchigliani introduced similar bills during the Sixty-ninth Legislative Session. However, Chairman O’Connell pointed out she withdrew her bill since Assemblywoman Giunchigliani’s was introduced first. Chairman O’Connell further reiterated Assemblywoman Giunchigliani’s bill "didn’t [did not] go anywhere" during the Sixty-ninth Legislative Session, so both Chairman O’Connell and Assemblywoman Giunchigliani introduced similar legislation during the Seventieth Legislative Session. Chairman O’Connell concluded, "Actually the language of this came from the school district."

Senator O’Donnell raised concern that A.J.R. 7 would place disproportionate responsibilities on certain counties to pay for schools in other counties. For example, he offered a possible scenario in which Storey County had already built its schools, and its growth rate was "basically zero." He asked if "the debt payment [would] go statewide" if Clark County then needed a lot of schools and bonded a substantial amount of money. Chairman O’Connell answered no. Assemblywoman Giunchigliani added, "My understanding is it would be the individual district. It would not be a statewide application on the payback."

Senator O’Donnell commented he believes the bond would be a statewide responsibility, so if the school district does not pay, the rest of the state would have to pay. Chairman O’Connell responded, "Well, if they don’t [do not] pay, but they have the responsibility of raising their … [property] taxes [to pay for the bond]."

Ms. Vilardo testified a further amendment had been incorporated into the original versions of A.J.R. 7 and S.J.R. 8. She asserted:

Senator O’Donnell asked for clarification on the issue regarding White Pine County. Ms. Vilardo expressed, "The White Pine [County] issue is a totally different issue." She pointed out when voters approve general-obligation debt, they do not approve a tax rate, but an amount of debt. She elaborated voters in White Pine County approved $14 million of debt, and the county levied the tax rate that was necessary to pay that debt. However, Ms. Vilardo indicated the county believed a mine would open in 1995 and would produce net proceeds. She noted the mine did not open as expected, and the error made in the calculations of assessed valuation and of revenues that would be generated by the levied tax rate were "totally wrong."

Chairman O’Connell added that bond was initially put on the ballot and passed in 1992. She reiterated White Pine County, at that time, believed the mine would open soon, but Environmental Protection Agency (EPA) regulations caused the opening to be delayed for 2 years. Ms. Vilardo explained the EPA began using environmental-impact statements instead of assessments that had previously been filed.

Senator O’Donnell read from page 2 of A.J.R. 7, "The Legislature may from time to time make such appropriations as may be necessary to carry out the obligations of the state under such contracts, and shall levy such tax as may be necessary to pay the same or carry them into effect." He asserted the proposed legislation would work in a similar manner to the natural-resources bond bank.

Ms. Vilardo commented, "The state bond bank, for which the locals [local governments] come and use the state as a conduit for sale, is not governed by what you are reading there. It is governed by statute, which sets up the conditions." She added the statute allows up to $1.8 million in bonds to be issued by the state for local governments. She pointed out the local governments receive the state’s AA credit rating for those bonds. Ms. Vilardo expressed, "That’s [That is] very important on natural resources because most of those bonds tend to be revenue-type bonds from a facility-type charge rather than the GO-type [general-obligation-type] bonds."

Chairman O’Connell suggested Senator O’Donnell could look at A.B. 201 of the Sixty-ninth Session for further information.

Senator Neal commented:

Chairman O’Connell answered affirmatively.

Senator Neal asked, "Who would issue the bonds, the Legislature?" Chairman O’Connell replied the state would issue the bonds. Ms. Vilardo added the state treasurer’s office generally issues the bonds for natural resources, and she assumes the bonds for schools would be issued in the same manner.

In response to a comment from Senator Neal, Chairman O’Connell clarified, "This sets up a new division of the bond bank."

Ms. Vilardo suggested the enabling legislation necessary to carry out A.J.R. 7 should be processed during the next legislative session, contingent upon passage of the appropriate ballot question. She explained putting through the enabling legislation next session would reduce confusion and "make for a better ballot question."

Senator Neal asked, "Did we amend the bond bank to include the natural resources?" Ms. Vilardo answered affirmatively. Senator Neal said, "… When we first started out with this, it was just for a collection of all of the bonds from throughout the state, and that was the original intent of the legislation."

Ms. Vilardo emphasized the Nevada Taxpayers Association supports A.J.R. 7.

Assemblywoman Giunchigliani noted, "… The treasurer’s office was here. She was curious why there were two bills. And I said that only one would go on the ballot, and she said, ‘Okay. Fine.’ So that’s [that is] why she left."

Mr. Etchemendy testified the Nevada Association of School Boards supports A.J.R. 7 and S.J.R. 8.

In response to a comment from Mr. Etchemendy, Chairman O’Connell indicated A.J.R. 7 and S.J.R. 8 are "exactly the same."

Chairman O’Connell closed the hearing on A.J.R. 7 and asked the committee to consider Amendment No. 739 to S.B. 14.

Chairman O’Connell indicated the Assembly amended S.B. 14 to allow Carson City to utilize the bill’s provisions.

*****

Chairman O’Connell adjourned the meeting at 7:25 p.m.

RESPECTFULLY SUBMITTED:

Amelie Welden,

Committee Secretary

APPROVED BY:

Senator Ann O'Connell, Chairman

DATE: