MINUTES OF THE meeting
of the
ASSEMBLY Committee on Government Affairs
Seventy-First Session
May 16, 2001
The Committee on Government Affairswas called to order at 8:17 a.m. on Wednesday, May 16, 2001. Chairman Douglas Bache presided in Room 3143 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Mr. Douglas Bache, Chairman
Mr. John J. Lee, Vice Chairman
Ms. Merle Berman
Mr. David Brown
Mr. David Humke
Mr. Harry Mortenson
Mr. Roy Neighbors
Ms. Bonnie Parnell
Mr. Bob Price
Mrs. Debbie Smith
Ms. Kathy Von Tobel
Mr. Wendell Williams
COMMITTEE MEMBERS EXCUSED:
Mrs. Vivian Freeman
Mrs. Dawn Gibbons
GUEST LEGISLATORS PRESENT:
Senator Dina Titus, Senate District 7
STAFF MEMBERS PRESENT:
Eileen O’Grady, Committee Counsel
Dave Ziegler, Committee Policy Analyst
Virginia Letts, Committee Secretary
OTHERS PRESENT:
Jeannine Coward, Assistant Controller, Office of State Controller
Dan Musgrove, Southern Nevada Regional Planning Coalition, City of Las Vegas
Stephanie Garcia, City of Henderson
Kimberly McDonald, City of North Las Vegas
Madelyn Shipman, Washoe County
Tom Grady Nevada League of Cities
Tom Fronapfel, concerned citizen
Senate Bill 228: Authorizes state controller to appoint persons to certain positions in unclassified service of state. (BDR 18-663)
Jeannine Coward, Assistant State Controller, testified S.B. 228 would move two positions in the Controller’s office to the unclassified service. It was felt the positions fell under the scope of unclassified as they were considered professional positions. The chart she had submitted (Exhibit C and Exhibit D) addressed proposed changes. The title changes would reflect the responsibilities, scope of duties, and status of the positions. The Management Analyst II position would be changed to Manager of Southern Region Operations and the Administrative Assistant III to Executive Assistant. The Management Analyst II managed the Las Vegas Office and was responsible for coordinating the Controller functions and activities in southern Nevada. The position was currently, and would increasingly be, involved in training of the Integrated Financial System, debt collection and management of that office. The Administrative Assistant to the Controller was under her direct supervision and unclassifying her position would make the position consistent with positions in the Lt. Governor, Attorney General and Treasurer’s Offices. The goal was to bring consistency in classification with parity in salaries. The Executive Assistant in the offices of the Treasurer and the Secretary of State made $41,611 and $31,698 respectively, while the Controller’s assistant made $27,415 annually. Both of the salary increases had been included in the Controller’s proposed budget. The bill would also change the current Deputy title to Chief Deputy and would place the Assistant Controller title into statute.
Ms. Von Tobel stated she was curious about the position of Assistant Controller. Ms. Coward replied the office was not really clear on how that position came into being. Ms. Von Tobel wondered why it would not be classified as Assistant Deputy Controller. Ms. Coward felt as there was a Chief Deputy it would be logical to have a Deputy, and there were very few elected Controllers in other states that had an Assistant Controller.
Ms. Von Tobel asked how most of them were designated. Ms. Coward responded most of them were referred to as Deputy Controller or Chief Deputy Controller. That change was not included in S.B. 228 although she thought it would be a good change to be consistent with the other constitutional offices.
Bob Gagnier, Executive Director, State of Nevada Employees Association, stated he had met with the Controller and Ms. Coward on several occasions, and they were able to work out any differences they all had. They were in full support of the bill in its present form.
Mr. Bache closed the hearing on S.B. 228 and opened the hearing on S.B. 530.
Senate Bill 530: Makes various changes concerning regional planning in certain counties. (BDR 22-1115)
Dan Musgrove, representing Southern Nevada Regional Planning Coalition and the city of Las Vegas, stated S.B. 530 was a clean-up bill for the coalition. The Legislature created the coalition in 1999 and since that time all of the entities have worked in harmony. During the past two years it was found that some of the language had to be clarified in the statutes, giving the coalition more flexibility. There had been no opposition to the added section on the Senate side, with a unanimous vote on the bill. There was a proposed change in the time frame for reviewing master plans from two years to every five years to make it consistent with most other states and alleviate the onerous task of checking every two years. To conform to legislative intent, changes were proposed on page 2, lines 34 through 43, bringing the regional planning coalition in line with Nevada Revised Statutes (NRS) 278.02549. It would allow both state and regional agencies to be consistent with the Nevada Regional Policy Plan and preserve the integrity of the regional policy planning process.
Page 3, lines 25 through 34, contained enabling language allowing for the provision of grants to entities whose plans were certified to be in conformance. Grants provided to a city or county must be expended by the city or county only to pay the costs of establishing, maintaining and carrying out programs related to land-use planning. There might be grants that the federal government provided and local planning organizations or urban land institutes could apply for if they were certified. Another change on page 3, line 37 through 49, allowed the regional planning coalition “to submit not more than three legislative measures for a regular legislative session.” That provision would have expired during the present legislative session and with the language it would be extended. Air quality control legislation affecting southern Nevada was requested, as well as regional flood control. The last change on page 5 required the board to adopt rules or bylaws pertaining to the attendance of members of the board at meetings of the board. The reasoning was there had been meetings where someone was unable to attend, through no fault of their own, and they were unable to appoint substitutes or excuse absences.
Mr. Humke recalled it was Bob Saylor and Senator Raggio who suggested the original legislation, as local entities in the Truckee Meadows could not reach a consensus on many points when drafting a master plan. He wondered if it had been based on that legislation, because planning had been “downhill” since 1991. Mr. Musgrove said two years ago the Legislature felt it was important that governmental entities work out regional issues together, rather than separately.
Mr. Humke pointed out he had a problem with the change in section 4. It was his philosophy that the Legislature was becoming clogged with Bill Draft Requests (BDRs) and there needed to be fewer requests, not the same amount or more. He was not sure how it could be corrected but he was adamantly opposed to the proliferation of public agencies being granted BDRs.
Mr. Mortenson stated he did not understand how board members had difficulty with the attendance requirements. He understood the problems of conflicting meeting times, but felt they should be changed rather than have substitutes attend the meetings.
Mr. Musgrove responded they thought rather than be penalized by statute, it would be better to have the allowance for substitutes through establishment of bylaws. One problem was with the school board, because they had strict attendance requirements a person could be dismissed due to illness or scheduling conflicts. There would still be attendance requirements but they would have the flexibility of having substitutes because of their by-laws.
Mr. Mortenson asked if the legislation allowed each entity to have multiple designees or if it only allowed one. Mr. Musgrove replied it specified the membership of the Southern Nevada Regional Planning Coalition as two members from the Board of County Commissioners, two members from the City of Las Vegas, with no allowance for substitutes. All they were asking for was to have the ability to appoint someone to serve in a member’s place if that member had to be absent.
Mr. Mortenson said when board members could not attend the meeting, they needed to appoint someone else to attend the meeting. Mr. Musgrove answered they believed removing the section allowed for better attendance and better representation from local entities. Circumstances sometimes had members with a serious illness missing numerous meetings and no one could replace that member so there was a vacant chair at the table.
Mr. Mortenson did not understand if a member was appointed, why someone else could not be appointed if there was a vacancy. Mr. Musgrove indicated the appointment was year long, starting in January. If something were to happen to a member in July, that seat would sit empty until there was another appointment the next January. If the bylaws allowed a substitute or designee that person could sit in that chair until reappointment.
Mr. Mortenson asked if present laws precluded having alternates. Mr. Musgrove replied the law specified that if an appointed member failed to attend a meeting, his appointment would be automatically revoked.
Mr. Bache said, as one of the architects of Southern Nevada Regional Planning Coalition, along with Senators Porter, Titus and Assemblywoman Giunchigliani, he was pleased at the progress made over the last two years. He understood the need to make various changes in streamlining the program.
Stephanie Garcia, representing the city of Henderson and also the Regional Planning Coalition, testified she was in attendance to support the legislation and Mr. Musgrove.
Kimberly McDonald, representing city of North Las Vegas, stated they supported passage of S.B. 530, as they felt it would enhance the productivity operation of the coalition.
Chairman Bache closed the hearing on S.B. 530 and opened the hearing on S.B. 556.
Senate Bill 556: Prohibits reprisal or retaliatory action against officer or employee of local government who discloses improper governmental action. (BDR 23-793)
Senator Jon Porter, Senate District 1, said he had appreciated the cooperation between the houses and he was appearing in support of the bill and to introduce Senator Titus.
Senator Dina Titus, Senate District 7, testified during the last interim one major issue was air quality in southern Nevada. The testimony in the interim was mostly from disgruntled employees of the water and health districts about retaliatory actions. They also heard from observers and citizens who had been following the politics of the health district. As a result a recommendation came out of that interim committee establishing a whistle blower statute for local government. The proposed legislation resulted from that recommendation and had been amended slightly in the Senate. The bill basically prohibited reprisal or retaliatory action against any officer or employee of local government who disclosed improper governmental actions. S.B. 556 also required local governments to establish an appeals process for whistle blowers who had been subjected to retaliatory action. The Senate amendment stated that, under provisions of the bill, “whistle blowers were protected by the appeals process, up to two years after initial disclosure.” If retaliatory action occurred, the whistle blower must file an appeal within 60 days of that action. The measure also specified local governments must prescribe the related contents of an appeal, designate or appoint a hearings officer, and, if applicable, allow the hearings officer to issue an order to cease and desist retaliatory action. The consensus of opinion was the bill protected local government employees. There would be an amendment offered by an employee involved in a whistle blower case at the state level. The amendment added a new definition, bringing the language in compliance with federal statutes. She supported that change.
Ms. Parnell questioned the “end-funded” mandate, as it appeared the only new fiscal impact would be the appointment of the hearing officers and procedures. Senator Titus believed that was the only change and all the local governments indicated they were in support.
Tom Fronapfel read testimony (Exhibit E), which also included some proposed amended language. He stated he was testifying on his own behalf although he was employed by the Nevada Department of Transportation as the Assistant Director of Planning. In March 1996, he contacted the Office of the Attorney General over concerns that certain actions taken by the Deputy Director of the Department of Transportation violated the provisions of NRS 408.233. He became the subject of many subsequent adverse employment actions and below-standard annual performance evaluations when the previous year he was rated above standard. On January 8, 1997, he was told he was being demoted and that he had the choice of accepting the demotion either voluntarily or involuntarily. On January 29, 1997, he received another performance evaluation rating his performance as unacceptable. In response to those actions he filed a formal grievance and the first of two whistle-blower complaints against the department and supervisors. Due to that action he was notified his performance had improved and would no longer be demoted. He was removed as chairman of national highway committees, as a member of regional transportation commission advisory committees, denied various training and travel, and given substandard performance evaluations.
His proposed amendment was adding definitions of “disclose” and “disclosure” to NRS 281.611, as “disclose” or “disclosure” meant “without limitation the reporting to any person, either verbally or in writing, not expressly prohibited by law, by a state or local governmental officer or employee which is made in good faith and which is based on a reasonable belief that an improper governmental action occurred.”
Ms. Parnell indicated page 7 of the court records (page 14 of Exhibit E) stated Nevada’s whistle blower law did not provide for a “reasonable belief” standard. She wondered if the language covering “disclose” and “disclosure” took care of that weakness in current statute. Mr. Fronapfel felt the change would take care of that problem.
Mr. Mortenson asked if his career status was the same as before the whistle blowing started. Mr. Fronapfel replied when his employment with the department started he had 112 employees in his division, there were now 56. His original title was Assistant Director of Planning and Program Development and was presently Assistant Director of Planning, which was consistent with any official title in the Department of Personnel.
Ms. Parnell questioned if he was an unclassified state employee. Mr. Fronapfel stated he was a classified employee under statute.
Ms. Parnell wondered if he could have approached the State of Nevada Employees Association (SNEA) in filing a grievance.
Mr. Fronapfel responded he had appeared before the employee management committee on three separate occasions, prevailing in two out of three. He had gone before the State Hearings Officer on two occasions with the third hearing pending in June of this year.
Ms. Parnell said her concern was with state unclassified employees, because they did not have the availability of SNEA assistance. She hoped those unclassified positions would at least be afforded the same option under the whistle blower law. Mr. Fronapfel believed those concerns were covered in present statutory language, as appointed or elected officials were included.
Ms. Berman understood he had paid $75,000 of his own money for the lawsuit and wondered why there was no suggestion in the bill for compensation. Mr. Fronapfel stated he had worked with Senator Townsend on legislation, which had not been passed out of Senate Government Affairs, and one request was inclusion for recovery of reasonable attorney’s fees. He still had that language and could make it available. He thought it was more important to ensure the “reasonable belief and good faith” provisions were in statute.
Ms. Berman stated when the committee entertained passage she would suggest including compensation in the bill.
Mr. Bache requested clarification as to the Senate Government Affairs consideration of attorney’s fees. Mr. Fronapfel did not recall that the actual language was discussed formally at the committee hearing, but information was provided to the Senate Government Affairs staff, as well as Senator Townsend.
Mr. Brown thought it was a good bill and would not want to see it jeopardized. There were other statutory means by which a person could obtain attorney’s fees in litigation, which was primarily through an “offer of judgment” mechanism and would be applicable to a “whistle blower” case.
Ms. Berman asked if he had known about an “offer of judgment” provision. Mr. Fronapfel responded there were no provisions for recovery of attorney’s fees in the state’s whistle blower law. There were provisions for recovery of reasonable fees in other state statutes, but they were not applicable in his case.
Mr. Humke added he was not familiar with statutes providing attorney’s fees in Nevada civil law, except the general nature, and understood they were rare in Nevada. There had been an opinion issued by Judge Griffin on April 24 and wondered if that was before the date of the Senate hearing on the bill. Mr. Fronapfel replied he did not recall the sequence, but believed the decision was issued after the original hearing on S. B. 556.
Mr. Humke thought it was obviously a very recent order and understood why no amendment could formally be proposed to the Senate. The attorney fee amendment was another matter, which might not assist Mr. Fronapfel. He would like to see the bill pass with the proposed amendment as employees were expected to employ “reasonable belief” in performing their duties.
Mr. Bache indicated April 24 was after committee action had occurred on the bill in the Senate, as their time line was the same as the Assembly. April 18 was the last date for committee action and April 27 was the last day for action on the floor, unless the bill had waivers.
Mr. Humke said Mr. Fronapfel was a citizen trying to perform a job and was awaiting a court order, which unfortunately occurred in an untimely manner. He did not feel the Senate would find it offensive to amend the bill.
Mr. Price queried if an attorney had initiated the language in the amendment, as he felt it was very concise and in a style similar to that used by the legislative legal staff. Mr. Fronapfel responded he had drafted the language and then had his attorney review it, and then provided it to the legislative staff.
Ms. Berman thought language should be added which could possibly read, “If an employee is successful in litigation, the agency will provide for attorney’s fees and costs as of January 1, 2001.”
Mr. Bache felt it was something that could be considered. He was concerned that the proposed amendment regarding disclosure would be lost, if language was included that would be objectionable to the Senate. He felt perhaps Senate Government Affairs Committee could be contacted to see if it was acceptable to them.
Mrs. Smith wondered if the amendment was approved, if the judgment was not in his favor how would the attorney fees be awarded. Mr. Fronapfel stated that the decision by Judge Griffin was final, unless it was appealed to the Nevada Supreme Court and no final determination was made. He had a pending civil action in Federal Court, which included provisions for recovering attorney’s fees, punitive damages, and so forth.
Mr. Brown stated he had no problem with an amendment including attorney’s fees, if it was the opinion of the committee. NRS 18.010, titled “award of attorneys fees,” dealt with costs and disbursements. It was the offer of judgment statute and was a mechanism by which any party prevailing in litigation can, through an offer to settle, obtain an award of attorney’s fees. NRS 18.150 discussed payment of costs and attorneys fees when the state or county was a party. When speaking with Madelyn Shipman, she indicated she saw nothing that would preclude the inclusion of state or local governments from the effect of that statute.
Madelyn Shipman, representing Washoe County, stated she had testified in the Senate Government Affairs and was pleased with amendments to the bill. She was in full support of the amended bill and thought it provided some guidance to the local governments. The county often received letters citing the law as it related to the state employees and attorneys have to be reminded it does not necessarily apply directly to other entities. With S.B. 556 in place, it would force the smaller entities to enact ordinances so the procedures would be the same for all state and local government employees. She believed amendments that were presented regarding the definitions of disclosure and good faith and Mr. Brown’s proposal enhanced the bill.
ASSEMBLYWOMAN PARNELL MADE A MOTION TO AMEND AND DO PASS S.B. 556.
ASSEMBLYMAN HUMKE SECONDED THE MOTION.
MOTION CARRIED, ASSEMBLYWOMEN FREEMAN AND GIBBONS WERE ABSENT FOR THE VOTE.
Chairman Bache stated he would also entertain a motion on S.B. 530.
ASSEMBLYMAN BROWN MADE A MOTION TO DO PASS S.B. 530.
ASSEMBLYMAN LEE SECONDED THE MOTION.
ASSEMBLYMAN HUMKE MADE A MOTION TO AMEND AND DO PASS S.B. 530 WITH DELETION OF THE BILL DRAFT PROVISIONS.
Mr. Humke said the Legislature had evolved to the point where there was an unlimited number of Bill Draft Requests (BDRs), which clogged the process. Elections, Procedures and Ethics Committee made an attempt to reduce the number of BDRs by all parties, state governments and the state executive branch. There were also allocations to the judicial branch, constitutional officers, local governments and certain nonprofit groups, such as employee unions. He felt if any agency with the most populated county was afforded bill drafts the proliferation would start all over again. It was a philosophical argument as to “where do you draw the line?”
Mr. Lee believed the agency would need at least one measure each session, because the issue of the region’s air quality was important. Rather than lose all of them, he wanted the entities to have a chance to at least have something in place they could work with.
Mr. Price stated when he started in the Legislature there was no limit on how many bills a legislator could request, so any branch of government could go to any legislator and request a bill draft. Limitation of introductions came about when a freshman legislator requested one hundred bills during one session and when the story hit the newspapers, the following session they became limited. As a side note, Mr. Price said no one except the bill drafter knew what bills were being drafted. Since that time BDR lists had been initiated so everyone was aware of what the issues would be during a legislative session.
Tom Grady, representing the Nevada League of Cities, interjected cities and counties with populations under 50,000 had one BDR and larger entities had four. The Nevada League of Cities and Nevada Association of Counties were allowed twenty BDRs. During the present session there was collective thinking by the cities and they had reduced their BDRs to one. The reason for only one request was cities with special charters needed the opportunity to use their request to change their charters.
Mr. Bache interjected he was opposed to precluding the Regional Planning Coalition any BDRs, because they were a new governmental entity and under the scenario indicated by Mr. Humke, they would not be considered when drafting bills.
Mr. Neighbors indicated he had four counties in his district and he was allowed two-and-one-half bills per county. He had a problem giving one local entity three requests.
Mr. Humke responded he felt strongly about the amendment. He felt the allocation of BDRs was out of balance to the extent that state governments—specifically, the executive branch—received too many. The real losers were legislators and local governments. He was adamant about not withdrawing his amendment, but he would offer two of his own BDRs to local governments and try to split them between the city and county. He urged other members to do the same because, under reapportionment, who knew what area a legislator would represent. There were seventeen counties and many, many cities and he stated they “are all equal in my eyes.”
Mr. Bache believed there was usually a “billing session” after a session, allocating BDRs for the following session. He wondered if it would be appropriate to hold any action on S.B. 520 and check with Ms. Giunchigliani to see if Southern Nevada Regional Planning Coalition was going to be dealt with during the “billing session.” That way the bill could be processed without Mr. Humke’s proposed amendment. Mr. Brown felt that would be acceptable and would certainly prevent double allocations.
Mr. Musgrove stated he felt there were other avenues available and there were significant issues unique to the Regional Planning Coalition. They were trying to protect their BDRs from jeopardy, but to keep the bill from failing he would yield to Mr. Humke’s request. Mr. Bache indicated that it was his intention to hold action for one day. He would contact Ms. Giunchigliani and the committee could take action on the bill the next day. As there was still a motion on the floor, it would be tabled until the next meeting of the committee, at which time there was a work session scheduled.
The meeting was adjourned at 9:35 a.m.
RESPECTFULLY SUBMITTED:
Virginia Letts
Committee Secretary
APPROVED BY:
Assemblyman Douglas Bache, Chairman
DATE: