MINUTES OF THE meeting
of the
ASSEMBLY Committee on Government Affairs
Seventy-First Session
March 16, 2001
The Committee on Government Affairswas called to order at 8:10 a.m., on Friday, March 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
Mrs. Vivian Freeman
Ms. Dawn Gibbons
Mr. Harry Mortenson
Mr. Roy Neighbors
Ms. Bonnie Parnell
Mr. Bob Price
Ms. Debbie Smith
Ms. Kathy Von Tobel
Mr. Wendell Williams
COMMITTEE MEMBERS EXCUSED:
Mr. David Humke
STAFF MEMBERS PRESENT:
Eileen O’Grady, Committee Counsel
Dave Ziegler, Committee Policy Analyst
Linda Utt, Committee Secretary
OTHERS PRESENT:
John P. Sande, III, Airport Representative, Attorney at Law, Jones Vargas
Jeanne Greene, Director, Department of Personnel, State of Nevada
Ken Corzine, Correctional Officer, Northern Nevada Correctional Center
Bob Gagnier, Executive Director, State of Nevada Employees Association
Chairman Bache opened the hearing and called upon Assemblywoman Gibbons to make a statement for the record.
Assembly Bill No. 312: Revises provisions governing concession agreements entered into by Airport Authority of Washoe County. (BDR S-869)
Assemblywoman Gibbons requested Chairman Bache remove A.B. 312 from the hearing. She took the important portion of A.B. 312 and asked the sponsor of S.B. 38, Senator Randolph Townsend, District 4, and the Airport Authority Representative Mr. Sande, to amend and add her portion to their bill. Ms. Gibbons asked the committee not to consider A.B. 312.
Chairman Bache verified with Ms. Gibbons that she wanted A.B. 312 withdrawn from further consideration.
ASSEMBLYWOMAN PARNELL MOVED TO ACCEPT WITHDRAWAL OF A.B. 312.
ASSEMBLYWOMAN SMITH SECONDED THE MOTION.
THE MOTION CARRIED WITH ASSEMBLYMAN MORTENSON VOTING NAY.
Senate Bill No. 38: Revises provisions governing Airport Authority of Washoe County. (BDR S-775)
Mr. John Sande, with the law firm Jones Vargas, representing the Airport Authority of Washoe County, explained he would discuss the proposed amendment to S.B. 38 that came from A.B. 312 at the end of his testimony.
Mr. Sande stated Section 1 of S.B. 38 dealt with the appointment of board members on the Board of Trustees. Under the law, the board members must serve as of July 1 of each year. This allowed the authority, which was Sparks, Reno or Washoe County, to make their appointment on or before June 15 to begin service by July 1. He also explained this was a cleanup amendment.
The primary portion of the bill was located in Section 2, page 2, and dealt with the local government purchasing act, which also applied to the Airport Authority. The Airport Authority was subject to the same act as the local government and they wanted to exclude having to comply with the provisions of subsection 3 of NRS 332.105. He gave an explanation of what the subsection did. If local government accepted bids and required bonds such as “performance bonds” they could not ask for financial statements from the bidder. If they did not require the bond they were able to ask for the financial statement of the bidder. Mr. Sande said they believed if any business including the local government required a bond, they had the opportunity to request the bidder provide a financial statement for evaluation, to determine the capability and the financial resources of their performance. They did not understand why the provision was in the law and the Senate Government Affairs Committee felt they should look at all local governments and remove that section. Mr. Sande proposed to amend Chapter 477 of the statutes that governed the airport authority. The Airport Authority was created by a special statute that was not in the NRS and was a special act at the end of the NRS. For that reason, every time they wished to make any changes to the Airport Authority they had to amend the act. He stated they must comply with the bidding requirements of the local government purchasing act except the provision of subsection 3 of NRS 332.105, which was the subsection that said, “if you do require a bond of a bidder you cannot ask for a financial statement.”
Assemblywoman Freeman stated she lived in Reno and had concerns about the Airport Authority. She knew many people in local government and found the purchasing act had always been a problem. She was concerned when they were required to go with the lowest bid, and often ended up with the lowest quality of work. She confirmed a special act took place in the 1970s and wondered what would happen if they completely deleted Section 2, paragraph 3, and the effects it would have on the remaining statute. Mr. Sande said lines 32-36, if deleted, allowed the executive director to not require bids on less than $25,000 jobs. He said if deleted the executive director would be required to come to the board for every purchase, including a box of pencils. He explained this statute said the Airport Authority must comply with the local government purchasing act, which was a separate statute and not in the NRS, and they must go through certain bidding requirements when doing a job. The Airport Authority needed to do a Request for Proposal (RFP), solicit bids and returned them to the board for approval. This bill deleted the requirement that said they could not ask for financial statements. If a performance bond was required, then why not view their financial statements?
Assemblywoman Gibbons had a question that concerned the board and pointed out the language of $25,000 or less. She noticed the board previously approved an amount over $50,000 and did not need approval for the expenditure. She asked how they got around that. Mr. Sande said he did not think the Airport Authority would have done that and it may have been for certain services that were not subject to the local government purchasing act. He gave an example of accountants, public relations or legal matters that might not be subject to the local government purchasing act or was exempt under the act and assumed that was what happened.
Assemblywoman Berman was not familiar with Washoe County and asked if there was a problem that arose which caused the bill to be rewritten. She also asked if McCarran Airport used the same language and wondered if it came from Las Vegas or Mr. Sande’s own language. Mr. Sande replied there was nothing in particular that caused this bill to be written. The Executive Director, Chris Bart, hired two years ago, felt it did not make sense not to ask for a financial statement. Ms. Berman said they tried to change that portion because any good business should require a financial statement to see if the proposed bidder had the capability of performing. Mr. Sande also stated he was not sure about the McCarran airport and assumed they were owned and operated by the county and would not be subjected to the local government purchasing act.
Chairman Bache stated the airport in Reno was a unique exception to how airports were handled throughout the state. He stated the act was similar to a city charter since before they could change anything they needed to vote, similar to the Legislature. McCarran Airport was controlled by the county and had much more flexibility because they operated under county statutes.
Assemblywoman Freeman suggested the Airport Authority jurisdictions had never been clarified in many people’s minds and was not sure how the situation could be improved. Mr. Sande said there would be a bill that was introduced on the Senate side that would talk about increasing the membership of the board by one person so there would no longer be tie votes. There was a tie vote last year over the chairmanship. He stated the Airport Authority was created because it was owned and operated by the city of Reno. A decision was made to form a municipal organization created by statute where members would be appointed by three municipal entities — Reno, Sparks and Washoe County. Mr. Sande offered to have Mrs. Freeman look at the entire statute on the Airport Authority when the bill was brought over from the Senate side.
Mr. Sande wanted to explain about A.B. 312, which was withdrawn earlier in the meeting by Assemblywoman Gibbons. He asked the committee to look at lines 27 through 29, on page 2. It said a former member of the board might not enter into or submit a bid for a concession agreement pursuant to the section for one year after the termination of their service. The Airport Authority was agreeable and willing to amend that portion into S.B. 38. He felt it made good sense to have a one-year cooling off period for board members and stated they preferred it be applied to every board in the state. Since they needed to amend Chapter 474, Statutes in Nevada, 1977, they were willing to add that amendment into Section 2 of S.B. 38, on page 2.
Assemblywoman Parnell said the best business practice was to always ask for a financial statement. She was concerned regarding the wording “may” ask. She wondered if there had been any discussion regarding the requiring of financial statements. Mr. Sande stated if they depended on the concession alone they would always ask for it, but raised a bigger question on the local government purchasing act itself. Local governments had concession agreements as well and maybe their practices should also be looked at. Currently if they required a bond they could not ask for a financial statement.
Assemblyman Mortenson pointed out page 2, lines 6 through 21, and felt that portion of the bill was a beneficial provision and asked if they would consider adding that part. Mr. Sande stated that portion required if there only was one bid they would have to re-bid the job and that could lead to complications. If there was a large bid from a vendor for over a million dollars for a food concession and there were only two potential bidders he would advise his bidder to wait to see what the other bidder did before placing his bid. Everyone agreed it did not make much sense and could cause mischief.
Concession fees that were collected drew a lot of interest at the airport. Reno‑Tahoe International Airport only had one terminal compared to McCarran International Airport and had only one kitchen. In Las Vegas the bidders could be split and have more than one kitchen so they could have more than one concession agreement. Until Reno-Tahoe expanded they were caught with having one bidder for the concession agreement. Mr. Mortenson felt the mischief might be the other way around and wondered if there was a required procedure in requesting bids or can mischief occur because only one person gets the bid. Mr. Sande stated an RFP was written based upon expert advice and if the bid was unacceptable or if they had only one bidder it would need to go back to the board anyway. He had only seen them go out and solicit when they did not receive sufficient bids. Mr. Mortenson said there had been commotion in the south about mischief and the provision seemed to him to be a good one.
Assemblyman Brown asked if the financial disclosure requirement was in the public bidding statute. Mr. Sande confirmed that it was, and the local government purchasing act in NRS 332.105, subsection 1, stated you might require from a bidder either a performance or other type of bond. In subsection 3 it said if you did require a bond then you could not ask for financial statements. One problem with the performance bond was that if the concessionaire defaulted and went bankrupt the bonding company would have some defense when they were sued. There would be costly litigation and therefore it would be better up front to see a financial statement to advise them of the contractor’s capability to perform per the contract. He also stated he advised his clients that if they ever sold a piece of property and the buyer financed they should still know the capability of the buyer. Even though they might have the deed of trust and be able to foreclose they would end up in bankruptcy and might not be able to collect the value of their property. Mr. Brown stated he was aware of the slow response of the bond company and was able to concur with Mr. Sande. Also, if they required a financial statement from one group like the Airport Authority then the local government should require the same. Mr. Brown said some contractors alleged harassment if you demanded a statement for one and not the other.
Assemblyman Lee wondered about getting a concession for himself in Reno and said he could not imagine not asking for financial statements which should be the very first thing asked for in the bidding process. Mr. Sande stated he did not know why the existing law was the way it was and had heard, “When you have a bond, why worry?” Possibly in the RFP they could ask for not only the financial statement, but also a performance bond. Again, he did not understand why the local government purchasing act was exempt.
Chairman Bache closed the hearing on S.B. 38 and opened the hearing on A.B. 285.
Assembly Bill No. 285: Provides for appeal of decision of appointing authority regarding use of catastrophic leave by state employee. (BDR 23-438)
Assemblywoman Parnell, District 40, Carson City, explained A.B. 285 created a five-member committee to hear appeals on catastrophic leave from appointed authorities. The committee appointed by the Governor, would include three members from the state agencies and two who would represent labor. The intent of the bill was to ensure consistency in granting of catastrophic leave.
Ms. Parnell pointed out Section 2 dealt with the appointment of the committee. Section 3 covered the membership on the committee and length of time they would serve. Section 4 went thought the appeal process and the number of days to respond. Section 5 gave the definitions of the terms used within the bill.
Ms. Parnell explained she represented the State of Nevada Employees Association (SNEA) and turned the meeting over to Mr. Gagnier.
Robert Gagnier, Executive Director, State of Nevada Employees Association, explained the main purpose of the bill was consistency. He gave a quick history of the catastrophic leave program. The program was not in state government that long and when it came into place the first time, it took four years for it to be implemented because of the new concept. The Legislature originally approved it for only a four year period of time, and it was necessary for it to come back before the Legislature to get it re-passed. He felt they were into a maturing process on the bill. When the process was originally introduced there was only one other state in the nation that had the program, North Carolina, and had used them as an example.
Mr. Gagnier stated that denial of catastrophic leave was not appealable under their grievance procedures. He explained the first hurdle was to get the head of the agency to approve the request for catastrophic leave. The head of an agency would be the final judge and jury as to whether an employee was eligible for catastrophic leave. When eligible, coworkers could then donate their leave time to that person. Also, if there was leave time available in a catastrophic leave bank for that agency the employee could draw from that bank.
There were definitions of eligibility adopted by the Department of Personnel and the Personnel Commission to be eligible for catastrophic leave. To be qualified one either had to have a life threatening disease or injury as stated by a physician, or be involved in a lengthy recuperation that would exceed ten weeks.
Mr. Gagnier disclosed they had found over the years a growing inconsistency among the agencies as to how they approved or did not approve the request for catastrophic leave. To take care of inconsistencies, they removed the language that stated the decision of the appointing authority was final and not subject to the grievance procedure. That went along with some of the problems already related to the committee in an earlier meeting on A.B. 9 about grievance procedures. The grievance procedure was very lengthy and it was not unusual for the process to take up to seven months and, in many instances, the employee had passed away. The procedure would not be of much value if it was not handled quickly.
Mr. Gagnier asserted they were looking for a very simple process. The process included in A.B. 285 was more complex than what they wanted. They were willing to have management personnel dominate the committee because they were not seeking a change but only wanted to make the procedure more consistent. An employee of one agency with a catastrophic situation would be treated the same as the employee of other agencies. A.B. 285 had a primary goal that was purely mechanical. The language removed on page 3 was being reinserted only if it would reference the “committee” instead of the “appointing authority.” The decisions of the committee would not be subject to the grievance procedure or to judicial review. The committee would have the final, binding decision.
Assemblywoman Berman questioned the decision of the committee being “final and not subject to judicial review,” and asked why that was put in the bill. She said sometimes people needed judicial help after a decision. Why would the review stop at that point? Mr. Gagnier advised Ms. Berman that the language existed in the law today and was located on page 3, lines 22 through 25. Currently there was no judicial review of decisions regarding catastrophic leave. They had to make that concession when the law was first passed. He said it was really not new language and just changed the words from the “appointing authority” to the “committee.” The committee’s decision would be final and binding and would also have an odd number of members in order to avoid tie votes.
Ms. Berman understood catastrophic leave came from North Carolina law, but if it was indeed catastrophic she questioned why there was no medical person included on the committee. How could someone who was not a medical expert decide whether a catastrophic illness existed? Mr. Gagnier replied he felt that was a good idea and they would not object to a suggestion of a medical person being included on the committee. Mr. Gagnier said they had a number of members who were doctors and suggested she insert “one of the union members must be a person with a medical background.” She felt that would be a good idea and would be very helpful.
Assemblywoman Freeman suggested they also have someone who understood health care and a good nurse or nurse practitioner could be a lot cheaper than a doctor and could make proper evaluations of an illness.
Assemblyman Neighbors commented the criteria for the evaluation required the person’s doctor to give an evaluation anyway. Why then would it be necessary to have a doctor on the committee since they would probably not challenge the employee’s doctor’s evaluation? Mr. Gagnier said there was a regulation in the bill that indicated if the employee was absent for three consecutive days of sick leave or in cases of suspected abuse the appointing authority must require some evidence including a physician’s statement. Mr. Neighbors felt a doctor on the committee was somewhat of a duplication and not necessary.
Assemblywoman Berman hypothesized if someone were sick for three days and the doctor said they were not sick, the employee might disagree. The employee deserved a second opinion and this was the reason she recommended a medical person be a member of the committee.
Chairman Bache explained the issue of using three days sick leave was not part of what the bill and the discussion was on catastrophic leave. Mr. Gagnier requested they be aware that one was not eligible to even apply for catastrophic leave unless they had used up their regular sick leave.
Assemblyman Brown needed an explanation of the two conditions that would qualify someone for catastrophic leave. Mr. Gagnier again stated the requirements are that it be “life-threatening” as stated by the doctor, or an extensive period of recovery was required, which was defined as being a minimum of ten weeks. Mr. Brown noticed the definition of “catastrophe” and asked if that included a death in an employee’s immediate family. Mr. Gagnier stated very rarely was it used for death in the family but that catastrophic leave could be used for that reason. He also said the Department of Personnel would be giving statistics and would be able to answer further questions.
Mr. Gagnier stated the Department of Personnel had prepared a fiscal note and they did so based on statistics. In general, they would not see the necessity for the committee to always meet in person. Once they had met and adopted some regulations and ruled on some cases they might thereafter conduct their business through conference calls. They were not talking about technical rules but rather looking for quick consistent determinations.
Assemblyman Price questioned the description of “immediate family.” Would it be your father-in-law, or stepchildren or children from a prior marriage of your spouse? Were they included in the term “immediate family?” Mr. Gagnier stated there was a description in the personnel regulations, which described what constituted an immediate family. He thought there were two definitions of which one was a definition for sick leave and the other was a definition for death in the family.
Assemblyman Brown said they mentioned a “time bank” and wondered if people donated sick leave to an account or bank. Mr. Gagnier apologized and stated he should have explained the “bank” at the beginning. Under the catastrophic leave program the employees donated sick leave to other employees. A retiring employee could give their earned time but the time must be donated to other employees rather than receiving compensation. That donation could be within the same agency or across agency lines. There was a limitation to the amount of time employees donated and they were not allowed to donate time if it dropped them below 240 hours of accrued sick leave. They found many state employees who were retiring donated time because they would not get paid for the time after they retired. Other employees donated time to people who might have specific needs.
Mr. Brown asked if they had considered using the grievance committee but just create an alternate procedure for this committee. Mr. Gagnier responded, “No.” Assemblywoman Parnell responded to Mr. Brown. She referred to the testimony on A.B. 9 where the concern was the time taken to process grievance cases and to look at the immediate need for catastrophic leave time could take several months for a decision. The delay via the grievance procedure currently in place or going before the current management committee would not be appropriate when they might be facing death. She explained that was why they were looking at an abbreviated, simplistic way to come to a quick decision. Mr. Brown understood, but only wanted to suggest avoiding the creation of another committee and maybe a separate procedure could be created whereby those types of matters were handled.
Chairman Bache referred to the prior testimony by Mr. Gagnier where he pointed out inconsistencies in the system and would he be able to describe one without identifying the employee involved. He assumed one department such as Prisons did something one way and Human Resources did something else. Mr. Gagnier said that was one example but many times it was based on economics. A person in a large agency with a lot of coworkers would be approved while smaller agencies would deny due to lack of personnel. Those smaller agencies could not absorb the loss of the employee and needed “a body” in the job. Therefore they did not approve requests for those types of leave. That caused a discriminatory practice based upon agencies’ needs.
Assemblyman Neighbors asked Mr. Gagnier a question pertaining to leave. Everyone newly hired within the state acquires one and one quarter days of sick leave per month or up to 15 days per year. Would the new hire have to be working a certain period of time before they could use their sick leave? Mr. Gagnier answered, “No.” Sick leave became available to the employee as soon as it was earned. Annual leave was not available as earned and new employees earned annual leave at the same rate as sick leave but could not use the leave until they had been employed a minimum of six months. There was a short time in 1981 where sick leave was changed to the same as annual leave and the employee needed to be working six months before they could use their time. At the end of the two years the agencies within the state wanted to repeal the law to make sick leave available immediately. There was a maximum amount of annual leave that could be carried over from one year to the next. Sick leave continued to accumulate until 90 days was reached and then the sick leave rate decreased to one half the regular rate. It still was unlimited but would be earned at half the rate. Also, the Department of Personnel currently had a bill they supported in the Senate, S.B. 95, and it repealed the reduction of the one half rate and continued to earn the one and one quarter days sick leave per month without the 90-day limitation.
Chairman Bache stated Assemblyman Price would have been able to answer the question on annual leave since the employees hired during every legislative session might not be employed the full six months prior to the 120-day period. Because they would have accrued possibly only five months, Mr. Price presented a bill each session to provide those employees with annual leave after the session ended.
Jeanne Greene, Director, Department of Personnel, stated they were neither supporting nor opposing A.B. 285. She presented statistical information mentioned earlier in testimony. She felt the legislation on catastrophic leave was excellent and there were many employees who benefited from the leave. She said in the last calendar year there were 217 requests for catastrophic leave. Of those requests, 195 were approved by the agencies and 22 were denied. The 22 requests that were denied included 2 employees who left state service before their request was acted on. Also, in two cases no one donated leave time. She clarified the coworkers had to donate leave in order for the employee to be able to take advantage of the process. One employee submitted their request after they had been back on the job for a period of time. One employee’s doctor indicated they would not be able to return to work and 16 requests were denied because the employee had not met a qualifying condition or was unable to provide the medical documentation which was required for the agency to make a determination. Of those who did not meet the qualifying condition the majority did not meet the lengthy convalescence required which was a minimum of ten weeks. There were cases of broken bones that did not need the minimum ten weeks of convalescence. She said that gave them an overview of the situations from last year. Ms. Greene added the 195 recipients who took advantage of the catastrophic leave used 49,386 hours of leave time, which amounted to $771,000 during the last year. There were many employees that took advantage of this leave and she felt it was a worthy cause.
Assemblywoman Von Tobel was confused about the ten week clause and did not understand if the leave would apply when the doctor stated they would or would not come back after the ten weeks. She stated her understanding from the prior testimony was the catastrophic leave would not be able to be used if they had a terminal illness. Ms. Greene said, “Not necessarily,” but there was one case where an agency did not grant the leave because the doctor said the employee was not coming back. If it was a serious illness and they could possibly die the agency could grant the leave. Ms. Von Tobel felt that would be the time when that leave would be requested and employees would donate their sick leave to someone who was gravely ill. Ms. Greene did not know the specifics regarding the case she had mentioned. If an employee was willing to donate their time but if the request was not granted they would be unable to use that time.
Assemblyman Brown asked if she had any knowledge of the two cases and why no one donated their time. He wondered if that had anything to do with their personality. Ms. Greene stated she did not have specific information on those employees but in some cases agencies sent out an e-mail to all their employees and indicated a fellow employee had requested catastrophic leave and would ask for the coworkers to donate their leave time. In two cases there was no donation. Mr. Brown asked what was the size of the smallest agency in terms of number of employees. Ms. Greene stated her department was probably the smallest in the state and they had 85 employees. She also reiterated accumulated leave time could be donated across agency lines. They could donate to the legislative branch and were not limited to their own department.
Assemblyman Mortenson said someone made reference to a leave bank and asked if the bank went across agency lines. Ms. Greene stated the bank did not and each agency had its own leave bank. An employee could donate to the leave bank of their agency or they could donate to a specific individual. If she wanted to donate to someone in the Forestry Division she could donate to a specific individual. Only general donations went to their own department bank. Mr. Mortenson asked what the average condition of those banks was and wondered if there was time in most banks or if they were bankrupt. Ms. Greene said most agencies did have a sufficient number of hours in their bank.
Assemblyman Brown asked if she saw any problems with the current administration of the catastrophic leave program. Ms. Greene said when she looked at the statistics she did not see any problems. There was a ten percent denial rate and some of those were legitimate and some employees left state service. She had not been made aware of any inconsistencies with the program. Mr. Brown asked what the procedure was when the employees were rejected from the program. Would you advise them they had a problem and would there be help in walking them through the problem? Ms. Greene said her department did not get involved and everything was handled at the agency level. There were instances where the agency stated they had repeatedly asked the employee to provide medical documentation and the employee did not follow through. Mr. Brown asked if there was an ombudsman in their department who could assist the employee. Ms. Greene replied that there was not, but when they contacted their department, assistance was given.
Chairman Bache asked if she thought this would be the preferred procedure or would she prefer a judicial review. Ms. Greene replied she would need to give that some thought; she was not against the procedure and only tried to present the facts. Mr. Bache said she had presented extremely neutral testimony and wondered if she had any preference one way or the other. She stated she had no preference.
Ken Corzine, Correctional Officer, Northern Nevada Correctional Center, representing the Brotherhood of Corrections, one of the labor associations that represented the Department of Prisons, stated he supported the bill because of his past experiences at the Northern Nevada Correction Center. As a representative of labor he was designated to seek donations for catastrophic leave. He had no specific statistics through personnel but after what he had experienced with his fellow employees, he felt the committee was necessary. Judicial review was not desirable and took a long time. Currently they had officers who needed catastrophic leave quitting and using their retirement and deferred compensation to pay off their bills. There was a population of over 1,200 inmates at their facility and when a veteran officer quit in order to pay off bills, it created a lack of needed officers to take responsibility for the housing units, for patrol, to help new officers and to maintain a learning facility.
Mr. Corzine mentioned Ms. Berman’s statement that judicial review takes time, and time was a commodity an officer might not have if they were already in debt due to medical bills. Instead of looking at just the medical classification and the documentation, the appointing agencies should also look at the fact the officer may have been absent repeatedly for taking his or her spouse to seek doctor’s care. Those were issues that needed to be considered. The bill was a step in the right direction and for people who could qualify without having to look at issues of “security of the institution” taking priority over a dying relative. The appeal process needed to be enhanced so they could answer issues that are not currently represented.
Chairman Bache closed the hearing on A.B. 285.
Assembly Bill No. 60: Requires public body to post notice of its meetings on its Internet website, if any. (BDR 18-674)
Assemblyman Lee, Chairman of the subcommittee on A.B. 60, explained the purpose of A.B. 60 was to post meetings through the Internet and they would recommend to amend and do pass. He stated they had productive meetings and handed out (Exhibit C) to summarize their findings.
Mr. Lee went through the amendments to A.B. 60; the first was to make the law applicable to all elected members. Counties with over 100,000 populations would have their Internet posting in place by January 1, 2002. Most of those counties already posted to the Internet but counties with under 100,000 populations would be exempt. The committee heard from Goldfield, Nevada, who currently had only two phone lines and would have to unplug one to put in their Internet connection and that would greatly hamper the county. Mr. Lee said in the next session they would hear from all the people in the small counties and they created a resolution to cover the smaller entities (Exhibit D. Later introduced as Assembly Concurrent Resolution 16). They had planning boards, community colleges, the state, and therefore proposed those amendments and the resolution.
Chairman Bache confirmed with Mr. Lee the proposal to amend the bill with the various items and then separately he proposed they have a resolution to direct all local governments, not just the ones they required, to report back on their progress. Mr. Lee confirmed that was correct.
Assemblyman Price asked why the language stated, “only to boards with all elected members.” He stated there are several boards. Mr. Lee replied that testimony stated within Clark County there were 78 different boards. They looked at employee labor and times for different committees and the variety of ways their agendas were posted. After the testimony from all parties that area was the greatest concern. If you were interested in whether the Animal Shelter was having an advisory meeting you could call and get the information by phone. They wanted to make sure the people followed the planned board meetings and the larger city issues had the information available. The committee determined at this time not to ask the smaller boards to provide the posted information to the Internet.
Assemblywoman Von Tobel stated she just pulled up the Clark County page and wanted to make everyone aware that they already did post the Board of County Commissioners and the Planning Commission and they were appointed and not elected. She found the Zoning Commission was appointed and not elected also. All those agenda’s were already posted. She was aware they did not want to post the Town Advisory Boards of which approximately 12 were in her district. She was aware the committee was trying to avoid having them immediately post those to the Internet but to use language that said it would only be applicable to boards with all elected members was in error. She questioned if the language told them they no longer had to post the agendas of the Planning Commission and Zoning Commission. They were already posted on the Clark County website.
Assemblyman Lee referred to the counties with over 100,000 in population. He stated that included many counties that were not involved and who had “static” websites. They tried to encompass the testimony from all areas but targeted the larger areas as middle ground to begin working on.
Ms. Von Tobel recognized why they were doing that but she stated the language went backwards rather than forwards. They already posted more today than the language asked them to do. She emphasized they were, by the language written, requiring them to do less and if they were moving in to technology why not make a bill that would require more rather than less. Mr. Lee said Ms. Von Tobel seemed to be centered on Clark County and they referred more to Nye County and a lot of other agencies. The smaller counties wanted to be similar to Clark County, but many were not there yet.
Mr. Lee stated they wanted this to be in the law but had requested everyone to come back next session to advise of their progress. If they needed to do any cleanup they would. Ms. Von Tobel questioned the language of “shall post only boards with elected members.” Again she stated there was no sense in putting something into statute if it was less than what was being done currently. They wanted to move forward with technology. If the word was different and said “may post” or we are “encouraging you to post” there would not be as much of a problem but she questioned why they would put into law less than what they were currently posting. Mr. Lee stated they were not all doing that and she was looking at the larger county with facilities that took care of their posting. Some of the counties with over 100,000 populations would also need to help.
Assemblywoman Gibbons wondered if the Concurrent Resolution “a legislative term which shared jurisdiction of a measure in more than one committee” was taken from one of the committee’s bill drafts and was curious about how many bill drafts they had left for introduction by their committee. Chairman Bache advised them that all their committee bill drafts were used up and they had already passed the cutoff date on those but resolutions could be excluded from the limits on bill drafts. They were two separate issues. One, they would amend the bill in a certain way, and the other would be a resolution to mandate local governments to report back to them on their progress.
Assemblyman Mortenson felt the legislation would not mandate how everyone would use the Internet. He stated it was a minimum standard and anyone could exceed the standard. Mr. Lee said he had pinpointed the problem and stated they currently had different levels of accountability and the bill would hopefully bring more people who had procrastinated on board with the rest of the communities. Mr. Lee said he agreed there were counties who were ahead of others in their technological knowledge. Mr. Mortenson wondered if there would be changes in the open meeting law requirements of mandatory posting in three locations. Mr. Lee said there would not, and they would add a fourth one which would be the supplemental posting on the website.
Assemblyman Brown asked Mr. Lee what nonexempt counties were currently not in compliance. Mr. Lee said the only two counties that did comply were Clark and Washoe County. Many other counties had indicated no desire to complete these items. They would be required to move forward. Mr. Brown asked if he knew how many counties were more than 100,000 in population.
Chairman Bache answered the only two counties in excess of 100,000 in population were Clark and Washoe County. Carson City was over 50,000.
Assemblywoman Berman pointed to page 2, line 6, and read, “if the public body maintained a website on the Internet “ and asked if it did not maintain a website, would they need to. Chairman Bache stated the language in the bill indicated if they had no website it would not be required. Chairman Bache asked Mr. Lee if that discussion was brought up in the subcommittee. Mr. Lee replied the verbiage Ms. Berman read would no longer be in the bill and would be stricken. Mr. Lee directed another comment to Ms. Von Tobel and said if at the third grade level your child needed to read at a minimum level would you encourage them to only read the minimum.
Mr. Lee stated all of the boards subject to NRS 241 included all the state boards and many people who did not testify. The college and university systems would also be included. He felt they captured more people than were able to testify on A.B. 60.
Assemblywoman Berman needed a clarification and still questioned if the counties did not have a website would they need to make one or would they be exempt. Mr. Lee pointed out number 2 on the list: counties over 100,000 to be in place by January 1, 2002. They had eight months but if the population fell under 100,000 they were encouraged to work toward a website because in the next session they would be expected and possibly mandated to adhere. Ms. Berman said her answer then was yes; however, number 4 allowed two more years for a website.
Chairman Bache questioned Mr. Lee on his statement of being done in two years because there was nothing in the bill that mandated it would become effective two years from now. Also, one Legislature cannot bind another Legislature as far as their actions. Mr. Lee said he hoped this committee would continue to nurture the bill and hoped they would report back to this committee in the next session.
Assemblywoman Von Tobel felt they took a simple concept and turned it into a full page of requirements. Simply keeping the current language of A.B. 60 after posting the notice and referring to major meeting agendas on the website not later than 9 a.m. of the third working day before the meeting would have been easy. The knowledge would have been general enough so counties could recognize and determine their major meeting agendas. If they maintained websites on the Internet they could post meeting agendas but if they had no website they would not have to worry about the legislation. She felt every county attempted to move forward with technology but by listing numbers one through five with different stipulations she might propose the amendment. They were not supposed to micro-manage and the list put specifics in statute. When they said “major meeting agendas” they could have the county interpret their major agendas and make their own decisions. She restated earlier testimony the town advisory board agendas would be difficult to post.
Mr. Lee highly disagreed with Ms. Von Tobel and stated they were able to craft the five on the list based on testimony heard prior in their subcommittee meeting. Rather than the bill being postponed, they intended on preserving the intent and moving something forward to the future.
Assemblywoman Berman agreed for the record with Ms. Von Tobel in trying to simplify the bill and also saw another problem that needed to be addressed. How would they address technical problems when they could not post and then the open meeting law would not be met? Mr. Lee replied the answer would be addressed in number 3 which stated, “not a primary resource to avoid unnecessary lawsuits” in case there was a problem with posting. If posting was not available due to technological problems the city council meeting would not be nullified.
Assemblywoman Von Tobel addressed the legal counsel and stated because they had language in the statute that talked about the different ways of posting meetings it automatically showed it should be supplemental and would not replace the other notifications located in public areas or libraries. She thought the language would be supplemental since it did not replace but would be one more method of posting. Ms. O’Grady replied and said Ms. Von Tobel was correct because it stated minimum public notice was posting a paper copy and if they maintained a website it would be posted to the site. In addition they would mail a copy to people on a mailing list.
Ms. Von Tobel asked Chairman Bache if he would accept a motion. Mr. Bache stated because of the debate at this time over a number of issues and because representatives were not available from cities or counties to answer some of the questions there should be no action on the bill at this time. If they wanted to request the resolution portion be drawn up and referred to committee they could act on that portion. There were many concerns over the bill itself so no action would be taken.
Assemblywoman Parnell mentioned they had a meeting in their committee two weeks ago with the county representatives who spoke about the “Dillon Rule” and being allowed to exercise their good sense to determine what was best for their individual counties. She did not want the committee or Legislature to sit in judgment over the counties who were not currently equipped with the manpower and technology to electronically post agendas. She wanted to give the counties more credit as far as determining their directions. There could be repercussions if posting on the Internet was addressed in state statute and did not take place. There would be an open meeting issue and she cautioned more thought should be put into A.B. 60 before a decision was made.
Chairman Bache said from the discussion it was obvious number 1 of Exhibit C would be applicable only to boards over 100,000 and was of concern to the members. Mr. Bache requested a clarification on what questions needed to be answered.
Assemblyman Brown asked Mr. Bache if he could have clarification regarding a period at the end of the first sentence and wondered if an “and” was to be inserted so it would read “all elected boards and other state boards subject to NRS 241” or are the NRS 241 “other” state boards exempt. Mr. Bache said he assumed the first part referred to local governments and state government would be subject to NRS 241. Mr. Brown said that was how he interpreted the sentence. Mr. Lee also said he had the same interpretation.
Chairman Bache asked if there was any problem with number 2 of Exhibit C on the list. Ms. Von Tobel felt it unnecessary to have the language “counties over 100,000 in population must have their agendas posted to the Internet by January of 2002.” She said counties with that population already had that procedure in place. Why put it in statute when they were already doing more than required? Mr. Lee stated Washoe County needed more time to comply with the law.
Chairman Bache reviewed number 3 of Exhibit C, which stated the posting on the website was a supplemental posting. Ms. Von Tobel said since she asked for legal opinion and since it would be a supplement and not required there were numerous ways to post agendas. Any other type of posting would be considered supplemental agendas. Mr. Lee said that information arose because there were other locations where people viewed the agendas and if the supplemental information was due and a technical problem arose on posting to the website, other avenues of posting would be covered. Also, the local governments had a concern for the section.
Chairman Bache then asked for any concerns on counties under 100,000, which was number 4 of Exhibit C. Mr. Neighbors said he was a member of the subcommittee and heard testimony from the smaller rural counties and they were trying to get online.
Chairman Bache reviewed number 5 of Exhibit C, the proposed resolution. He felt that item was a separate issue from the bill itself. He asked Mr. Lee if he would like to make a motion from the subcommittee that they request the resolution as a bill draft. Mr. Lee replied in the affirmative. He felt the counties needed something from the Legislature that stated their direction and needed to make future plans and set goals for their actions.
ASSEMBLYMAN LEE MADE A MOTION TO ACCEPT THE LANGUAGE IN EXHIBIT C AS A PROPOSED BILL DRAFT.
ASSEMBLYMAN NEIGHBORS SECONDED THE MOTION.
Chairman Bache interjected to advise the committee that after it was introduced as a bill draft they would hear the resolution in committee.
Assemblyman Price was in favor of the bill draft but read the sentence that said “everyone needed to report back to the Senate and Assembly Committees on Government Affairs by December 1, 2002,” and felt there might have been a typing error. Assemblyman Lee stated there was a typing error, which would be corrected. Chairman Bache interjected and questioned if the subcommittee wanted the bill to go to just the Government Affairs Committees or to the Legislative Commission and the Government Affairs Committee. Mr. Lee said their committee felt that since they heard the original testimony and they were making sure A.B. 60 moved forward they would like them to come back to the same committee at the beginning of the next session. Assemblyman Williams agreed with the subcommittee and felt they should also review their progress in the next session. Chairman Bache asked what date other than December 1 they were going to use. After discussion, the committee decided upon the initial day of session in the year 2003. Ms. O’Grady, the legal counsel, said that language could be used.
MOTION CARRIED. MS. VON TOBLE, MRS. GIBBONS, MS. PARNELL
AND MRS. SMITH VOTED NAY.
Assemblywoman Smith wanted to advise them she did not see the need for this and if they made counties exempt under 100,000 and they knew the other counties were headed in the right direction then she had concern for the process being just for the sake of “moving forward.” Mr. Mortenson stated he agreed with Mrs. Smith’s comments.
Chairman Bache closed his discussion on A.B. 60 and adjourned the meeting at 9:56 a.m.
Linda Utt
Committee Secretary
APPROVED BY:
Assemblyman Douglas Bache, Chairman
DATE: