Assembly Amendment to Senate Bill No. 478 First Reprint (BDR 23-1671)
Proposed by: Committee on Elections, Procedures, and Ethics
Amendment Box: Conflicts with Amendment No. 939. Resolves conflict in section 19.5 with A.B. No. 611. Makes substantive change.
Resolves Conflicts with: AB611
Amends: Summary: Title: Preamble: Joint Sponsorship:
ASSEMBLY ACTION
Initial and Date | SENATE ACTION Initial and DateAdopted Lost | Adopted Lost
Concurred In Not | Concurred In Not
Receded Not | Receded Not
Amend the bill as a whole by adding a new section designated sec. 3.5, following sec. 3, to read as follows:
"Sec. 3.5.
"Vexatious" means lacking justification and intended to harass.".Amend sec. 5, page 2, line 2, by deleting:
"
and commission counsel".Amend sec. 5, page 2, by deleting lines 7 through 9 and inserting:
"
3. The executive director is in the".Amend sec. 5, page 2, by deleting lines 11 and 12 and inserting:
"
4. The executive director shall devote his entire time and".Amend sec. 5, page 2, line 15, by deleting "
their" and inserting "his".Amend sec. 5, page 2, by deleting line 16 and inserting:
"
5. The executive director may not:".Amend sec. 6, page 2, lines 26 and 27, by deleting:
"
281.511, 294A.345 or 294A.346." and inserting "281.511.".Amend sec. 9, page 4, lines 24 and 25, by deleting:
"
2, 3 and 4" and inserting:"
2 to 4, inclusive,".Amend sec. 11, page 5, lines 18 and 19, by deleting:
"294A.345 or 294A.346," and inserting:
"
Amend sec. 12, page 5, lines 36 and 37, by deleting:
"of:
(a) This" and inserting:
"of
Amend sec. 12, page 5, line 39, by deleting "(1)" and inserting "
Amend sec. 12, pages 5 and 6, by deleting lines 40 through 43 on page 5 and lines 1 and 2 on page 6, and inserting:
"
(b) The commission’s own motion .
(b) NRS 294A.345 or 294A.346 in any proceeding commenced by the filing of a request for an opinion pursuant thereto.]".
Amend sec. 12, page 6, line 3, by deleting:
"of paragraph (a)" and inserting:
"[of paragraph (a)]".
Amend sec. 13, page 6, by deleting lines 13 and 14 and inserting:
"1. Adopt procedural regulations [to] :
(a) To facilitate the receipt of inquiries by the commission;
(b) For the filing of a request for an opinion with the commission;
(c) For the withdrawal of a request for an opinion by the person who filed the request; and
(d) To facilitate the prompt rendition of
Amend sec. 13, page 6, line 17, by deleting:
"
and public employees".Amend sec. 14, page 7, by deleting line 40 and inserting:
"
6. Upon such a".
Amend sec. 14, page 8, by deleting lines 2 through 6 and inserting:
"papers before the commission.
Amend the bill as a whole by adding a new section designated sec. 14.5, following sec. 14, to read as follows:
"Sec. 14.5. NRS 281.481 is hereby amended to read as follows:
1. A public officer or employee shall not seek or accept any gift, service, favor, employment, engagement, emolument or economic opportunity which would tend improperly to influence a reasonable person in his position to depart from the faithful and impartial discharge of his public duties.
2. A public officer or employee shall not use his position in government to secure or grant unwarranted privileges, preferences, exemptions or advantages for himself, any member of his household, any business entity in which he has a significant pecuniary interest, or any other person.
As used in this subsection, "unwarranted" means without justification or adequate reason.3. A public officer or employee shall not participate as an agent of government in the negotiation or execution of a contract between the government and any private business in which he has a significant pecuniary interest.
4. A public officer or employee shall not accept any salary, retainer, augmentation, expense allowance or other compensation from any private source for the performance of his duties as a public officer or employee.
5. If a public officer or employee acquires, through his public duties or relationships, any information which by law or practice is not at the time available to people generally, he shall not use the information to further the pecuniary interests of himself or any other person or business entity.
6. A public officer or employee shall not suppress any governmental report or other document because it might tend to affect unfavorably his pecuniary interests.
7. A public officer or employee, other than a member of the legislature, shall not use governmental time, property, equipment or other facility to benefit his personal or financial interest. This subsection does not prohibit:
(a) A limited use of governmental property, equipment or other facility for personal purposes if:
(1) The public officer who is responsible for and has authority to authorize the use of such property, equipment or other facility has established a policy allowing the use or the use is necessary as a result of emergency circumstances;
(2) The use does not interfere with the performance of his public duties;
(3) The cost or value related to the use is nominal; and
(4) The use does not create the appearance of impropriety;
(b) The use of mailing lists, computer data or other information lawfully obtained from a governmental agency which is available to members of the general public for nongovernmental purposes; or
(c) The use of telephones or other means of communication if there is not a special charge for that use.
If a governmental agency incurs a cost as a result of a use that is authorized pursuant to this subsection or would ordinarily charge a member of the general public for the use, the public officer or employee shall promptly reimburse the cost or pay the charge to the governmental agency.
8. A member of the legislature shall not:
(a) Use governmental time, property, equipment or other facility for a nongovernmental purpose or for the private benefit of himself or any other person. This paragraph does not prohibit:
(1) A limited use of state property and resources for personal purposes if:
(I) The use does not interfere with the performance of his public duties;
(II) The cost or value related to the use is nominal; and
(III) The use does not create the appearance of impropriety;
(2) The use of mailing lists, computer data or other information lawfully obtained from a governmental agency which is available to members of the general public for nongovernmental purposes; or
(3) The use of telephones or other means of communication if there is not a special charge for that use.
(b) Require or authorize a legislative employee, while on duty, to perform personal services or assist in a private activity, except:
(1) In unusual and infrequent situations where the employee’s service is reasonably necessary to permit the legislator or legislative employee to perform his official duties; or
(2) Where such service has otherwise been established as legislative policy.
9. A public officer or employee shall not attempt to benefit his personal or financial interest through the influence of a subordinate.
10. A public officer or employee shall not seek other employment or contracts through the use of his official position.".
Amend sec. 15, page 9, by deleting lines 25 and 26 and inserting:
"committee.".
Amend sec. 15, pages 9 and 10, by deleting lines 40 through 42 on page 9 and lines 1 through 12 on page 10.
Amend sec. 16, page 11, by deleting lines 2 and 3 and inserting:
"a vexatious purpose
.Amend the bill as a whole by adding a new section designated sec. 16.5, following sec. 16, to read as follows:
"Sec. 16.5. NRS 281.521 is hereby amended to read as follows:
(a) A conflict exists between his personal interest and his official duty.
(b) His official duties involve the use of discretionary judgment whose exercise in the particular matter would have a significant effect upon the disposition of the matter.
(c) The conflict would materially affect the independence of the judgment of a reasonable person in his situation.
(d) He possesses special knowledge which is an indispensable asset of his public agency and is needed by it to reach a sound decision.
(e) It would be appropriate for him to withdraw or abstain from participation, disclose the nature of his conflicting personal interest or pursue some other designated course of action in the matter.
2.
Amend sec. 17, page 14, line 25, by deleting:
"
"attorney general
shall assign an attorney employed by the office of the attorney general to serve as commission counsel. The commission counsel".Amend sec. 17, page 14, line 26, by deleting:
"For each opinion
"
The commission counsel shall devote his entire time and attention to the business of the commission and shall not pursue any other business or occupation or hold any other office of profit that detracts from the full and timely performance of his duties. Any opinion rendered by the office of the attorney general regarding the Nevada Ethics in Government Law, NRS 281.411 to 281.581, inclusive, must be rendered by the commission counsel subject to the review of the commission. For each opinionAmend sec. 18, page 15, by deleting lines 23 through 31 and inserting:
"4.
Amend sec. 18, page 15, line 37, before "
(b)" by inserting "Amend sec. 18, page 16, line 1, by deleting "6." and inserting "
5.".Amend sec. 18, page 16, by deleting lines 12 and 13 and inserting:
"by the commission
.
Amend sec. 18, page 16, line 18, by deleting "8." and inserting "
Amend sec. 18, page 16, by deleting line 21 and inserting:
"employees.
Amend sec. 18, page 16, by deleting lines 27 and 28 and inserting:
"
8. The imposition of a civil penalty pursuant toAmend sec. 18, page 16, line 29, by deleting "10." and inserting "
Amend sec. 18, page 17, line 5, by deleting "
11." and inserting "10.".Amend sec. 19, page 18, by deleting lines 2 through 5 and inserting:
"this section is guilty of a
gross misdemeanor and, upon conviction, forfeits the amount of the honorarium.".Amend sec. 19.5, page 18, by deleting lines 7 and 8 and inserting:
"281.581 1. A candidate or public".
Amend sec. 19.5, page 18, line 13, by deleting "
Amend sec. 19.5, page 18, line 15, by deleting "
Amend sec. 19.5, page 18, line 18, by deleting "
Amend sec. 19.5, page 18, line 19, by deleting "
Amend sec. 19.5, page 18, by deleting line 20 and inserting:
"2. The commission may, for good cause shown, waive or reduce the civil penalty.
3. The civil penalty must be recovered".
Amend sec. 19.5, page 18, by deleting lines 24 and 25 and inserting:
"
4. If the".Amend sec. 19.5, page 18, line 26, by deleting "
this subsection," and inserting "subsection 2,".Amend the bill as a whole by deleting sections 22 and 23 and adding new sections designated sections 22 and 23, following sec. 21, to read as follows:
"Sec. 22. NRS 218.926 is hereby amended to read as follows:
218.926 1. Each registrant shall file with the director within 30 days after the close of the legislative session a final report signed under penalty of perjury concerning his lobbying activities. In addition, each registrant shall file with the director between the 1st and 10th day of the month after each month that the legislature is in session a report concerning his lobbying activities during the previous month, whether or not any expenditures were made. Each report must be on a form prescribed by the director and must include the total of all expenditures, if any, made by the registrant on behalf of
the governor, a legislator or an organization whose primary purpose is to provide support for legislators of a particular political party and house, including expenditures made by others on behalf of the registrant if the expenditures were made with the registrant’s express or implied consent or were ratified by the registrant. Except as otherwise provided in subsection 4, the report must identify each legislator and each organization whose primary purpose is to provide support for legislators of a particular political party and house on whose behalf expenditures were made , must identify the governor if expenditures were made on behalf of the governor, and must be itemized with respect to each such legislator and organization2. If expenditures made by or on behalf of a registrant during the previous month exceed $50, the report must include a compilation of expenditures, itemized in the manner required by the regulations of the legislative commission, in the following categories:
(a) Entertainment;
(b) Expenditures made in connection with a party or similar event hosted by the organization represented by the registrant;
(c) Gifts and loans, including money, services and anything of value provided
to the governor, to a legislator, to an organization whose primary purpose is to provide support for legislators of a particular political party and house, or to any other person for the benefit of the governor, a legislator or such an organization; and(d) Other expenditures directly associated with legislative action, not including personal expenditures for food, lodging and travel expenses or membership dues.
3. The legislative commission may authorize an audit or investigation by the legislative auditor that is proper and necessary to verify compliance with the provisions of this section. A lobbyist shall make available to the legislative auditor all books, accounts, claims, reports, vouchers and other records requested by the legislative auditor in connection with any such audit or investigation. The legislative auditor shall confine his requests for such records to those which specifically relate to the lobbyist’s compliance with the reporting requirements of this section.
4. A report filed pursuant to this section must not itemize with respect to
the governor and each legislator an expenditure if the expenditure is the cost of a function to which every legislator was invited. For the purposes of this subsection, "function" means a party, meal or other social event.Sec. 23. NRS 294A.410 is hereby amended to read as follows:
(a) Conduct an investigation concerning the alleged violation and cause the appropriate proceedings to be instituted and prosecuted in the first judicial district court; or
(b) Refer the alleged violation to the attorney general. The attorney general shall investigate the alleged violation and institute and prosecute the appropriate proceedings in the first judicial district court without delay.
2. A person who believes that any provision of this chapter has been violated may notify the secretary of state, in writing, of the alleged violation. The notice must be signed by the person alleging the violation and include any information in support of the alleged violation.".
Amend the bill as a whole by renumbering sec. 25 as sec. 26 and adding a new section designated sec. 25, following sec. 24, to read as follows:
"Sec. 25. NRS 281.477, 294A.345 and 294A.346 are hereby repealed.".
Amend sec. 25, page 22, line 11, by deleting "1999." and inserting:
"1999, or to the jurisdiction, duties, powers or proceedings of the commission on ethics relating to such conduct.".
Amend the bill as a whole by adding a new section designated sec. 27, and the text of the repealed sections, following sec. 25, to read as follows:
"Sec. 27. Section 19.5 of this act becomes effective at 12:01 a.m. on October 1, 1999.
TEXT OF REPEALED SECTIONS
281.477 Public hearing on request for opinion as to whether person committed act to impede success of political campaign: Request; notice; response; continuance; actions of commission; judicial review of final opinion.
1. If a request for an opinion is filed with the commission pursuant to NRS 294A.345 or 294A.346, the commission shall conduct a public hearing on the request. Except as otherwise provided in subsection 6, the hearing must be held as expeditiously as possible, but not later than 15 days after the receipt of the request for the opinion.
2. Such a request must be accompanied by all evidence and arguments to be offered by the requester concerning the issues related to the request. Except as otherwise provided in this subsection, if such evidence and arguments are not submitted with the request, the commission may:
(a) Draw any conclusions it deems appropriate from the failure of the person or group of persons requesting the opinion to submit the evidence and arguments, other than a conclusion that a person alleged to have violated NRS 294A.345 acted with actual malice; and
(b) Decline to render an opinion.
The provisions of this subsection do not prohibit the commission from considering evidence or arguments presented by the requester after submission of the request for an opinion if the commission determines that consideration of such evidence or arguments is in the interest of justice.
3. The commission shall immediately notify any person alleged to have violated NRS 294A.345 or 294A.346 that such an opinion has been requested by the most expedient means possible. If notice is given orally by telephone or in any other manner, a second notice must be given in writing no later than the next calendar day by facsimile machine or overnight mail. The notice must include the time and place of the commission’s hearing on the matter.
4. A person notified pursuant to subsection 3 shall submit a response to the commission no later than at the close of business on the second business day following the receipt of the notice. The response must be accompanied by any evidence concerning the issues related to the request that the person has in his possession or may obtain without undue financial hardship. Except as otherwise provided in this subsection, if such evidence is not submitted within that time, the commission may:
(a) Draw any conclusions it deems appropriate from the failure of that person to submit the evidence and argument; and
(b) Prohibit that person from responding and presenting evidence at the hearing.
The provisions of this subsection do not prohibit the commission from allowing that person to respond and present evidence or arguments, or both, after the close of business on the second business day if the commission determines that consideration of such evidence or arguments is in the interest of justice.
5. Except as otherwise provided in subsection 4, the commission shall allow any person alleged to have violated NRS 294A.345 or 294A.346 to:
(a) Be represented by counsel; and
(b) Hear the evidence presented to the commission and respond and present evidence on his own behalf.
6. At the request of:
(a) The person or group of persons that filed the request for the opinion pursuant to NRS 294A.345 or 294A.346; or
(b) The person alleged to have violated the provisions of NRS 294A.345 or 294A.346,
the commission may grant a continuance of a hearing held pursuant to the provisions of this section upon a showing of the existence of extraordinary circumstances that would prohibit the commission from rendering a fair and impartial opinion. A continuance may be granted for not more than 15 days. Not more than one continuance may be granted by the commission pursuant to this subsection.
7. The person or group of persons that filed the request for the opinion pursuant to NRS 294A.345 or 294A.346 has the burden of proving the elements of the offense, including that a person alleged to have violated NRS 294A.345 acted with actual malice. The existence of actual malice may not be presumed. A final opinion of the commission rendered pursuant to this section must be supported by clear and convincing evidence.
8. The commission shall render its opinion, or decline to render an opinion, as expeditiously as possible, but not later than 3 days after the date of the hearing. If additional time is required to determine the state of mind or the intent of the person alleged to have violated the provisions of NRS 294A.345 or 294A.346 or to determine the amount of any civil penalty that may be imposed pursuant to NRS 281.551, the commission may continue its jurisdiction to investigate those issues but shall render its opinion as to the truth or falsity of the statement made concerning the candidate or the ballot question or its opinion as to whether the person impeded the success of the campaign or induced another person to impede the success of the campaign. If the commission continues its jurisdiction pursuant to this subsection, it may render a final opinion after the time set forth in this subsection.
9. A final opinion of the commission rendered pursuant to this section is subject to judicial review pursuant to NRS 233B.130. The district court shall give a petition for judicial review of a final opinion of the commission priority over other civil matters that are not expressly given priority by law. Notwithstanding the provisions of NRS 233B.130, the court may provide for such expedited review of the final opinion, including shortened periods for filing documents, as it deems appropriate for the circumstances.
10. Each request for an opinion filed pursuant to NRS 294A.345 or 294A.346, each opinion rendered by the commission pursuant thereto and any motion, evidence or record of a hearing relating to the request are public and must be open to inspection pursuant to NRS 239.010.
11. For the purposes of NRS 41.032, the members of the commission and its employees shall be deemed to be exercising or performing a discretionary function or duty when taking any action related to the rendering of an opinion pursuant to this section.
12. Except as otherwise provided in this section, a meeting or hearing held by the commission to carry out the provisions of this section and the commission’s deliberations on the information or evidence are not subject to any provision of chapter 241 of NRS.
294A.345 Causing publication of certain false statements of fact concerning candidate or ballot question during campaign prohibited; civil penalty imposed by commission on ethics.
1. A person shall not, with actual malice and the intent to impede the success of the campaign of a candidate, cause to be published a false statement of fact concerning the candidate, including, without limitation, statements concerning:
(a) The education or training of the candidate.
(b) The profession or occupation of the candidate.
(c) Whether the candidate committed, was indicted for committing or was convicted of committing a felony or other crime involving moral turpitude, dishonesty or corruption.
(d) Whether the candidate has received treatment for a mental illness.
(e) Whether the candidate was disciplined while serving in the military or was dishonorably discharged from service in the military.
(f) Whether another person endorses or opposes the candidate.
(g) The record of voting of a candidate if he formerly served or currently serves as a public officer.
2. A person shall not, with actual malice and the intent to impede the success of a campaign for the passage or defeat of a question on the ballot at any election, including any recall or special election, cause to be published a false statement of fact concerning the question on the ballot.
3. Any candidate who alleges that a false statement of fact concerning the candidate has been published in violation of subsection 1, and any person or group of persons that advocates the passage or defeat of a question on the ballot at any election, is required to file a report pursuant to NRS 294A.150, and alleges that a false statement of fact has been published in violation of subsection 2, may file a request for an opinion with the commission on ethics pursuant to NRS 281.411 to 281.581, inclusive, and NRS 281.477. The commission shall give priority to such a request over all other matters pending with the commission.
4. A person who violates the provisions of this section is subject to a civil penalty that may be imposed by the commission on ethics pursuant to NRS 281.551.
5. As used in this section:
(a) "Actual malice" means knowledge of the falsity of a statement or reckless disregard for whether a statement is true or false.
(b) "Publish" means the act of printing, posting, broadcasting, mailing, speaking or otherwise disseminating.
294A.346 Impeding success or inducing another to impede success of campaign of candidate or for ballot question prohibited; civil penalty imposed by commission on ethics.
1. An employee, agent or volunteer of the campaign of a candidate shall not willfully perform any act in the course of his employment, agency or volunteering that impedes the success of that campaign.
2. A person shall not willfully, to impede the success of the campaign of a candidate, offer or give an item of value to:
(a) A person to induce him to obtain a position as an employee, agent or volunteer for that campaign and perform any act in the course of his employment, agency or volunteering to impede the success of that campaign; or
(b) An employee, agent or volunteer for that campaign to induce him to perform any act in the course of his employment, agency or volunteering to impede the success of that campaign.
3. An employee, agent or volunteer of a campaign for the passage or defeat of a question on the ballot at any election, including any recall or special election, shall not willfully perform any act in the course of his employment, agency or volunteering that impedes the success of that campaign.
4. A person shall not willfully, to impede the success of a campaign for the passage or defeat of a question on the ballot at any election, including any recall or special election, offer or give an item of value to:
(a) A person to induce him to obtain a position as an employee, agent or volunteer for that campaign and perform any act in the course of his employment, agency or volunteering to impede the success of that campaign; or
(b) An employee, agent or volunteer for that campaign to induce him to perform any act in the course of his employment, agency or volunteering to impede the success of that campaign.
5. Any candidate who alleges that a person has violated the provisions of subsection 1 or 2, and any person or group of persons that advocates the passage or defeat of a question on the ballot at any election, is required to file a report pursuant to NRS 294A.150, and alleges that a person has violated the provisions of subsection 3 or 4, may file a request for an opinion with the commission on ethics pursuant to NRS 281.411 to 281.581, inclusive, and 281.477. The commission shall give priority to such a request over all matters pending with the commission.
6. A person who violates the provisions of this section is subject to a civil penalty that may be imposed by the commission on ethics pursuant to NRS 281.551.".
Amend the title of the bill by deleting the second line and inserting:
"director and providing his duties; requiring the attorney general to assign a commission counsel to the commission and providing his duties; requiring lobbyists to report expenditures on behalf of the governor; repealing the provision prohibiting a person from making a false statement of fact concerning a candidate or a question on a ballot under certain circumstances; repealing the provision prohibiting certain persons from willfully impeding the success of the campaign of a candidate or the campaign for the passage or defeat of a question on a ballot; clarifying the intent".