Assembly Bill No. 66–Assemblywoman Angle (by request)

Prefiled January 28, 1999

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Referred to Committee on Government Affairs

 

SUMMARY—Prohibits retaliatory action against independent contractor who discloses improper governmental action. (BDR 23-1057)

FISCAL NOTE: Effect on Local Government: No.

Effect on the State or on Industrial Insurance: No.

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EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted. Green numbers along left margin indicate location on the printed bill (e.g., 5-15 indicates page 5, line 15).

 

AN ACT relating to state government; prohibiting retaliatory action against an independent contractor who discloses an improper governmental action; prohibiting a state agency from taking certain adverse action against independent contractors who testify or seek to testify before a house or committee of the legislature on their own behalf; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

1-1 Section 1. NRS 281.611 is hereby amended to read as follows:

1-2 281.611 As used in NRS 281.611 to 281.671, inclusive, unless the

1-3 context otherwise requires:

1-4 1. "Improper governmental action" means any action taken by a state

1-5 officer or employee in the performance of his official duties, whether or

1-6 not the action is within the scope of his employment, which is:

1-7 (a) In violation of any state law or regulation;

1-8 (b) An abuse of authority;

1-9 (c) Of substantial and specific danger to the public health or safety; or

1-10 (d) A gross waste of public money.

1-11 2. "State employee" means any person who performs public duties

1-12 under the direction and control of a state officer for compensation paid by

1-13 or through the state. The term includes an independent contractor who

1-14 has entered into a contract with an elective officer or the head of a

1-15 department, board, commission or institution pursuant to NRS 284.173.

2-1 3. "State officer" means a person elected or appointed to a position

2-2 with the state which involves the exercise of a state power, trust or duty,

2-3 including:

2-4 (a) Actions taken in an official capacity which involve a substantial and

2-5 material exercise of administrative discretion in the formulation of state

2-6 policy;

2-7 (b) The expenditure of state money; and

2-8 (c) The enforcement of laws and regulations of the state.

2-9 Sec. 2. NRS 281.641 is hereby amended to read as follows:

2-10 281.641 1. If any reprisal or retaliatory action is taken against a state

2-11 officer or employee who discloses information concerning improper

2-12 governmental action within 2 years after the information is disclosed, the

2-13 state officer or employee may file a written appeal with a hearing officer of

2-14 the department of personnel for a determination of whether the action

2-15 taken was a reprisal or retaliatory action. The written appeal must be

2-16 accompanied by a statement that sets forth with particularity:

2-17 (a) The facts and circumstances under which the disclosure of improper

2-18 governmental action was made; and

2-19 (b) The reprisal or retaliatory action that is alleged to have been taken

2-20 against the state officer or employee.

2-21 The hearing must be conducted in accordance with the procedures set forth

2-22 in NRS 284.390 to 284.405, inclusive, and the procedures adopted by the

2-23 personnel commission pursuant to subsection 4.

2-24 2. If the hearing officer determines that the action taken was a reprisal

2-25 or retaliatory action, he may issue an order directing the proper person to

2-26 desist and refrain from engaging in such action. The hearing officer shall

2-27 file a copy of his decision with the governor or any other elected state

2-28 officer who is responsible for the actions of that person.

2-29 3. The hearing officer may not rule against the state officer or

2-30 employee based on the person or persons to whom the improper

2-31 governmental action was disclosed.

2-32 4. The personnel commission may adopt rules of procedure for

2-33 conducting a hearing pursuant to this section that are not inconsistent with

2-34 the procedures set forth in NRS 284.390 to 284.405, inclusive.

2-35 5. For the purposes of this section, "reprisal or retaliatory action"

2-36 includes:

2-37 (a) The denial of adequate personnel to perform duties;

2-38 (b) Frequent replacement of members of the staff;

2-39 (c) Frequent and undesirable changes in the location of an office;

2-40 (d) The refusal to assign meaningful work;

2-41 (e) The issuance of letters of reprimand or evaluations of poor

2-42 performance;

3-1 (f) A demotion;

3-2 (g) A reduction in pay;

3-3 (h) The denial of a promotion;

3-4 (i) A suspension;

3-5 (j) A dismissal;

3-6 (k) A transfer;

3-7 (l) Frequent changes in working hours or workdays; [or]

3-8 (m) If the employee is an independent contractor, the revocation or

3-9 rescission of a contract entered into pursuant to NRS 284.173; or

3-10 (n) If the employee is licensed or certified by an occupational licensing

3-11 board, the filing with that board, by or on behalf of the employer, of a

3-12 complaint concerning the employee,

3-13 if such action is taken, in whole or in part, because the state officer or

3-14 employee disclosed information concerning improper governmental action.

3-15 Sec. 3. NRS 284.173 is hereby amended to read as follows:

3-16 284.173 1. Elective officers and heads of departments, boards,

3-17 commissions or institutions may contract for the services of persons as

3-18 independent contractors.

3-19 2. An independent contractor is a natural person, firm or corporation

3-20 who agrees to perform services for a fixed price according to his or its own

3-21 methods and without subjection to the supervision or control of the other

3-22 contracting party, except as to the results of the work, and not as to the

3-23 means by which the services are accomplished.

3-24 3. For the purposes of this section:

3-25 (a) Travel, subsistence and other personal expenses may be paid to an

3-26 independent contractor, if provided for in the contract, in such amounts as

3-27 provided for in the contract. Those expenses must not be paid pursuant to

3-28 the provisions of NRS 281.160.

3-29 (b) There must be no:

3-30 (1) Withholding of income taxes by the state;

3-31 (2) Coverage for industrial insurance provided by the state;

3-32 (3) Participation in group insurance plans which may be available to

3-33 employees of the state;

3-34 (4) Participation or contributions by either the independent contractor

3-35 or the state to the public employees’ retirement system;

3-36 (5) Accumulation of vacation leave or sick leave; or

3-37 (6) Coverage for unemployment compensation provided by the state

3-38 if the requirements of NRS 612.085 for independent contractors are met.

3-39 4. [An] Except as otherwise provided in NRS 218.5343 and 281.611

3-40 to 281.671, inclusive, an independent contractor is not in the classified or

3-41 unclassified service of the state, and has none of the rights or privileges

3-42 available to officers or employees of the State of Nevada.

4-1 5. Except as otherwise provided in this subsection, each contract for

4-2 the services of an independent contractor must be in writing. The form of

4-3 the contract must be first approved by the attorney general, and, except as

4-4 otherwise provided in subsection 7, an executed copy of each contract

4-5 must be filed with the fiscal analysis division of the legislative counsel

4-6 bureau and the clerk of the state board of examiners. The state board of

4-7 examiners may waive the requirements of this subsection in the case of

4-8 contracts which are for amounts less than $750.

4-9 6. Except as otherwise provided in subsection 7, and except contracts

4-10 entered into by the University and Community College System of Nevada,

4-11 each proposed contract with an independent contractor must be submitted

4-12 to the state board of examiners. The contracts do not become effective

4-13 without the prior approval of the state board of examiners, but the state

4-14 board of examiners may authorize its clerk to approve contracts which are:

4-15 (a) For amounts less than $5,000 or, in contracts necessary to preserve

4-16 life and property, for amounts less than $25,000.

4-17 (b) Entered into by the state gaming control board for the purposes of

4-18 investigating an applicant for or holder of a gaming license.

4-19 The state board of examiners shall adopt regulations to carry out the

4-20 provisions of this section.

4-21 7. Copies of the following types of contracts need not be filed or

4-22 approved as provided in subsections 5 and 6:

4-23 (a) Contracts executed by the department of transportation for any work

4-24 of construction or reconstruction of highways.

4-25 (b) Contracts executed by the state public works board or any other

4-26 state department or agency for any work of construction or major repairs of

4-27 state buildings if the contracting process was controlled by the rules of

4-28 open competitive bidding.

4-29 (c) Contracts executed by the housing division of the department of

4-30 business and industry.

4-31 (d) Contracts executed by the state industrial insurance system.

4-32 (e) Contracts executed with business entities for any work of

4-33 maintenance or repair of office machines and equipment.

4-34 8. The state board of examiners shall review each contract submitted

4-35 for approval pursuant to subsection 6 to consider:

4-36 (a) Whether sufficient authority exists to expend the money required by

4-37 the contract; and

4-38 (b) Whether the service which is the subject of the contract could be

4-39 provided by a state agency in a more cost-effective manner.

4-40 If the contract submitted for approval continues an existing contractual

4-41 relationship, the board shall ask each agency to ensure that the state is

4-42 receiving the services that the contract purports to provide.

5-1 9. If the services of an independent contractor are contracted for to

5-2 represent an agency of the state in any proceeding in any court, the

5-3 contract must require the independent contractor to identify in all pleadings

5-4 the specific state agency which he is representing.

5-5 Sec. 4. NRS 218.5343 is hereby amended to read as follows:

5-6 218.5343 1. An employee of a state agency who testifies before a

5-7 house or committee of the legislature on his own behalf and not on behalf

5-8 of his employer shall, before commencing his testimony, state that fact

5-9 clearly on the record.

5-10 2. It is unlawful for a state agency which is the employer of an

5-11 employee who complies with subsection 1 and testifies or seeks to testify

5-12 before a house or committee of the legislature on his own behalf to:

5-13 (a) Deprive the employee of his employment or to take any reprisal or

5-14 retaliatory action against the employee as a consequence of his testimony

5-15 or potential testimony;

5-16 (b) Threaten the employee that his testimony or potential testimony will

5-17 result in the termination of his employment or in any reprisal or retaliatory

5-18 action against him; or

5-19 (c) Directly or indirectly intimidate, threaten, coerce, command or

5-20 influence or attempt to intimidate, threaten, coerce, command or influence

5-21 the employee in an effort to interfere with or prevent the testimony of the

5-22 employee.

5-23 3. It is unlawful for a state agency to:

5-24 (a) Deprive or threaten to deprive an employee of his employment;

5-25 (b) Take or threaten to take any reprisal or retaliatory action against the

5-26 employee; or

5-27 (c) Directly or indirectly intimidate, threaten, coerce, command or

5-28 influence or attempt to intimidate, threaten, coerce, command or influence

5-29 the employee,

5-30 in an attempt to affect the behavior of another employee who is testifying

5-31 or seeks to testify before a house or committee of the legislature on his

5-32 own behalf.

5-33 4. The provisions of this section do not apply to an employee in the

5-34 classified service who has not completed his probationary period.

5-35 5. [For the purposes of] As used in this section:

5-36 (a) "Employee" includes an independent contractor who has entered

5-37 into a contract with an elective officer or the head of a department,

5-38 board, commission or institution pursuant to NRS 284.173.

5-39 (b) "Reprisal or retaliatory action" has the meaning ascribed to it in

5-40 subsection 5 of NRS 281.641.

6-1 [(b)] (c) "State agency" means an agency, bureau, board, commission,

6-2 department, division, officer, employee or agent or any other unit of the

6-3 executive department of the state government. The term includes an

6-4 elective officer or the head of a department, board, commission or

6-5 institution who has entered into a contract with an independent

6-6 contractor pursuant to NRS 284.173.

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