The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 12:15 p.m., on Friday, April 9, 1999, in Room 2149 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

COMMITTEE MEMBERS PRESENT:

Senator Mark A. James, Chairman

Senator Jon C. Porter, Vice Chairman

Senator Mike McGinness

Senator Maurice Washington

Senator Dina Titus

Senator Valerie Wiener

Senator Terry Care

STAFF MEMBERS PRESENT:

Jo Greenslate, Committee Secretary

OTHERS PRESENT:

Chairman James announced this was a work session, but he would take limited testimony. He addressed Senate Bill (S.B.) 485.

Senator Porter stated in regard to the preferred interexchange carrier (PIC) freeze mentioned on page 3 of the work session document (Exhibit C.), he has received language that will address his concern that customers are aware the PIC freeze is available to them. Further, he mentioned he would like the effective date to be "on passage." The language proposed by Senator Porter is, in essence, "Customers shall be offered, in a competitively neutral manner, the opportunity to freeze their preferred interexchange carrier."

Chairman James requested Allison Combs, Committee Policy Analyst, Research Division, Legislative Counsel Bureau, go over the remainder of the proposed amendments to S.B. 485.

Ms. Combs advised the amendments from the attorney general’s office were under tab A of Exhibit C. The remaining amendments begin at the bottom of page 2 of Exhibit C. The first one is to move the "slamming" and "cramming" provisions to chapter 598, Deceptive Trade Practices, of the Nevada Revised Statutes (NRS). Ms. Combs remarked that change would allow all of the current penalties and civil procedures to also apply to "slamming" and "cramming." Regarding legislative participation on the advisory board, Ms. Combs indicated legislators would be added to the board in place of one of three of the members that would currently be representing an economy of the state that is impacted by high technology crime, and also in place of one of the representatives from a state agency. The other state agency representative will be the director of the Department of Information Technology.

Continuing, Ms. Combs stated another change is the definition of "provider," which is in section 13, under tab A of Exhibit C. It would change the definition of provider to include a person who authorizes a change for telecommunication service and directly or indirectly bills the customer for the change. She advised the next proposed revision, the penalty for interference with the computer, needs to be discussed. Ms. Combs stated currently the proposed penalties for interference with the computer are based on a monetary sum, and that may not be appropriate for all types of crime. She commented staff was instructed to meet with legal staff regarding that change. Brad Wilkinson, Committee Counsel, Legal Division, Legislative Counsel Bureau, remarked the penalties in section 27 are to be removed; they are already covered by another provision in NRS. Chairman James clarified the amendment is to remove the penalties in section 27.

The next proposed amendment discussed by Ms. Combs deals with the identity-theft language, which was deleted from the proposed language, because identity theft was addressed in another bill the committee has already acted on. Regarding administrative subpoenas, Exhibit C revises the procedures for the subpoenas. However, it took out section 55, which authorizes court review in a committee proposed to reinstate the court review. Mr. Wilkinson advised the attorney general’s office decided to remove the sections regarding administrative subpoenas entirely, rather than amend them.

Senator Porter suggested perhaps the advisory board, through its educational outreach, could address the PIC freeze being an option to the public as one of its agenda items. Chairman James commented that was a good idea, but it is not part of the bill.

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Chairman James referred to S.B. 327.

Helen A. Foley, Lobbyist, World Gaming Network, testified she had met with Dennis DeBacco, Supervisor, Central Repository for Nevada Records of Criminal History, Nevada Highway Patrol Division, Department of Motor Vehicles and Public Safety, and they incorporated the committee’s concerns. She stated they defined those who would be authorized agents, and included that they would have to comply with the Fair Credit Reporting Act, which in Ms. Foley’s opinion, strengthens the issue. She continued they specified when disseminating the records, as authorized by an employer, the agent may only disseminate information to the employer that requested the information. The other issue raised by Ms. Foley is maintenance of logs. She said Mr. DeBacco mentioned that each law enforcement agency must have an entry showing which agency requested information, how it was provided, the date, and the person who the subject of information concerned. Ms. Foley advised that after discussion, Mr. DeBacco and she decided that if information is passed from an authorized agent to an employer, the same logging should take place.

Senator Wiener made the observation that Mr. DeBacco still did not appear to fully support S.B. 327. She asked Mr. DeBacco to explain his reservations regarding the bill. Mr. DeBacco asserted, in his opinion, the concerns he expressed at the original hearing on S.B. 327 have been addressed in the amendments discussed by Ms. Foley. It is now his opinion the bill will work, and there are enough safeguards in place to ensure the procedures are properly followed. Senator Wiener referred to an earlier concern of Mr. DeBacco regarding the ability to detect an original document to ensure it was the only copy being disseminated. Mr. DeBacco stated that is still a concern; however, he has decided to trust in the integrity of the person receiving information to pass on the original documentation without making any marks or changes to what has been provided. Senator Wiener reiterated her earlier suggestion of attaching original documentation to the employer’s report with a notation to the effect the backup materials are "original documents." She asked whether that would be helpful or burdensome. Mr. DeBacco answered that would be burdensome in his opinion. He explained what his department releases from the repository is a copy of record from its system. The copy has a notation that it is an original from the repository, and it is an exact replica of the repository’s documentation.

Ms. Foley noted the original document would have to be part of any adverse action taken against an employee, and under the Fair Credit Reporting Act, that employee must be given a copy of the full report against him or her. The certified copy would be a part of the report. She continued, one of the problems with high technology is the wait for a certified copy would be an extreme time delay on individuals’ employment possibilities, but there is nothing to prevent the certified copy from coming after the fact.

Senator Wiener inquired what procedure is currently in place between the repository and employers receiving information. Mr. DeBacco replied currently the employer receives an original document from the system that is marked as such. The employer then makes an employment decision. Senator Wiener asked whether the logging procedure would ensure the integrity of the process for Mr. DeBacco. Mr. DeBacco answered affirmatively, and noted that was an integral part of what he requested during the hearing. He advised the repository requires a user agreement be established with anyone who requests information from the repository that authorizes repository personnel to perform periodic compliance audits. Those audits provide an additional safeguard to ensure proper document handling. Senator Wiener requested that if S.B. 327 passes, Mr. DeBacco report the results of the program established by this bill to the committee next session.

Senator Care inquired what would happen in the event the authorized agent disseminated information unlawfully, and the person whose records were disseminated filed a civil suit for invasion of privacy. He asked if there would be any circumstances under which the employer of the agent would be liable. Ms. Foley replied, in speaking to legal counsel for World Gaming Network regarding broader issues, such as other employment screening and past employment history at other gaming operations, it has been shown the employer has less liability with that type of information. That is due to the fact it is then on the shoulders of the employment-screening group who provided the information. She added employment-screening groups are liable for that and have been challenged, but unsuccessfully.

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The next bill addressed by Chairman James was S.B. 481.

Chairman James noted there is a list of "controlled substances" in Exhibit C. He stated if any of those substances were found in a person’s system when operating a motor vehicle or vessel, it would be a "per se" violation, meaning if the substances were in a person’s system, it is per se.

Senator Porter stated he agrees with the amendment, and mentioned adding "street" language next to the nomenclatures. He asked if it would help law enforcement to have more generic terms next to the scientific terms or if that is unnecessary. Chairman James replied, in his opinion, law enforcement already knows the various names for controlled substances.

L. Keith Carter, Lobbyist, Sergeant, Las Vegas Metropolitan Police Department, and Nevada Sheriffs and Chiefs Association, confirmed that law enforcement is already familiar with the street names for controlled substances.

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Chairman James turned over the next portion of the hearing to Senator Porter. The next agenda item addressed by Vice Chairman Porter was S.B. 192.

Harvey Whittemore, Lobbyist, Lionel Sawyer & Collins, representing Glenbrook Property Owners for Fairness, introduced Michael D. Jabara, who is a member of same association. Mr. Whittemore said based upon the concerns raised by the committee during the hearing on S.B. 192, members of his association added a new section to the bill that would allow an association to charge a reasonable and nondiscriminatory fee to nonmembers for gate control. Additionally, they removed the proposed amendments to NRS 116.31036. The proposed amendments may be found in his handout titled "Proposed Amendment (Revised) to Senate Bill 192" (Exhibit D). Further, Mr. Whittemore advised, regarding the definitions associated with chapter 116 of NRS, there is no express residency requirement to be a board member. He stated there is language that requires a member of the executive board be a resident of the state. However, there is no definition of the length of that term or how the individual should certify he or she has been a resident for the requisite period of time. Mr. Whittemore suggested the committee adopt a standard of a specific number of days and have the individual certify that he or she has lived in the state for the required length of time.

Continuing, Mr. Whittemore explained what the Senate Committee on Commerce and Labor proposed in S.B. 451, a bill similar to S.B. 192.

According to Mr. Whittemore, the Senate Committee on Commerce and Labor has indicated that the term of office of a member of the executive board shall not exceed 2 years, and they do not have any expressed prohibition on the number of terms that may be served consecutively. He stated, to correct the record, he favored leaving in the required use of Roberts Rules of Order.

Senator James questioned removal of the open-meeting requirements. He indicated this is a policy issue that has nothing to do with any of his clients, and in his opinion, all homeowners’ association meetings should be conducted according to the open-meeting law. Mr. Whittemore remarked he is in favor of that. With respect to proxies, Mr. Whittemore pointed out that proxies are handled extensively in S.B. 451, and the Senate Committee on Judiciary may wish to make the amendment consistent with the language in S.B. 451, on this particular section. He continued, it does not address a significant policy issue associated with the use of proxies for election purposes only. Mr. Whittemore strongly recommended that for election purposes only, association members be required to fill out an absentee ballot or vote.

Continuing, Mr. Whittemore remarked regarding assessments and the ratification process associated with the budgets, that is also addressed in S.B. 451. In fact, in S.B. 451, Mr. Whittemore explained there has to be a vote to approve or ratify the commencement of a civil action. A description of the reasonable estimate of the cost of the civil action, including reasonable attorneys fees, an explanation of the probability, and so forth, are discussed in S.B. 451. Allocation of proxies is also addressed in S.B. 451, according to Mr. Whittemore. Senator James stated, again, as a policy matter that has nothing to do with any of his clients, he was proposing to replace voting by proxy with voting by absentee ballot for election purposes and major association decisions. Responding to a question by Senator Care, Mr. Whittemore stated the issues discussed in S.B. 451 and in this bill have mostly been decided. An issue that was not decided was the use of ballots for elections versus proxies on day-to-day matters. Mr. Whittemore reiterated that Senator James was proposing using ballots for election purposes, and not impacting a member’s right to use proxies on day-to-day matters. Senator Care conceded the ballot issue, but said he favors striking the language regarding term limits. In Senator Care’s opinion, homeowners’ associations are comfortable having the same board members term after term. Mr. Whittemore advised the Senate Committee on Commerce and Labor agreed with Senator Care’s remarks regarding term limits. He said that committee did not put in term limits, but simply indicated that the term of office of a member of the executive board shall not exceed 2 years, and a member of the executive board may be elected to succeed himself.

Senator Care asserted the people who run homeowners’ associations are not familiar with Roberts Rules of Order, and do not know how to use them. Secondly, he questioned the change in section 6, subsection 1 of S.B. 192 from "25 percent" to "75 percent" of the votes. Mr. Whittemore pointed out that merely changes the negative of going from "25" to "75," because it is also proposes to replace "unless disapproved" with "if approved." Senator Care requested Mr. Whittemore’s comments on Roberts Rules of Order. Mr. Whittemore stated Roberts Rules of Order provides a mechanism for some individuals who are concerned about things to have their say. Senator James mentioned attending a meeting at which a person wishing to speak was told to "sit down and shut up." His interpretation of the bill is that it is suggesting if a person takes on the responsibility of presiding over a homeowners’ association meeting, he or she should have a book on Roberts Rules of Order to become knowledgeable in the proper procedures for conducting meetings.

Vice Chairman Porter referred to Exhibit D, and called for a motion regarding the amendments included in it. He stated that would include deletion of No. 2 on page 2 of Exhibit D.

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Vice Chairman Porter stated, regarding term limits, he is in agreement with Senator Care’s opinion that homeowners’ associations prefer to not limit their officers’ terms of office. Senator Titus and Senator Washington also agreed with that opinion.

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Vice Chairman Porter mentioned the third separate item to be addressed regarding S.B. 192 was the length of residency and use of ballots for election purposes only. Mr. Whittemore reiterated he had suggested the term of residency be 270 days with a certification procedure. Vice Chairman Porter asked if that is consistent with other lengths of residency. Senator Titus suggested the length of residency be 180 days. Vice Chairman Porter requested a motion.

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The final section of S.B. 192 addressed by Vice Chairman Porter was in regard to using absentee ballots in lieu of proxies for election purposes only. Proxies would still be allowed for day-to-day business of the association.

Senator Titus inquired about the required two-thirds vote for assessment purposes mentioned in section 11, subsection 8 of S.B. 192. Mr. Whittemore explained those activities were covered in S.B. 451, and the only thing the committee will need to be aware of is that their decision on S.B. 192 may be in conflict with S.B. 451.

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Vice Chairman Porter called for a motion to amend and do pass S.B. 192 in its entirety.

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There being no further business to come before the committee, Chairman James adjourned the meeting at 1:10 p.m.

RESPECTFULLY SUBMITTED:

Jo Greenslate,

Committee Secretary

APPROVED BY:

Senator Mark A. James, Chairman

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