MINUTES OF THE meeting
of the
ASSEMBLY Committee on Government Affairs
Seventy-First Session
March 22, 2001
The Committee on Government Affairswas called to order at 8:09 a.m., on Thursday, March 22, 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
Mrs. Vivian Freeman
Ms. Dawn Gibbons
Mr. David Humke
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 Brown
GUEST LEGISLATORS PRESENT:
Assemblywoman Sandra Tiffany
Assemblyman John Oceguera
Assemblyman John Carpenter
STAFF MEMBERS PRESENT:
Eileen O’Grady, Committee Counsel
Dave Ziegler, Committee Policy Analyst
Linda Utt, Committee Secretary
OTHERS PRESENT:
Terry Savage, Director, Department of Information Technology
Richard Ziser, Coalition for the Protection of Marriage
Dana Bilyeu, Operations Officer, Public Employees Retirement System
George Pyne, Executive Officer, Public Employees Retirement System
Bob Shaw, Private Citizen
Raymond McAllister, Professional Firefighters of Nevada
Robert Gagnier, Lobbyist, State of Nevada Employees Association
Lucille Lusk, Lobbyist, Nevada Concerned Citizens
Raymond McAllister, Lobbyist, Professional Firefighters of Nevada
Ronald Dreher, Lobbyist, Peace Officers Research Association of Nevada
Lorne J. Malkiewich, Director, Legislative Counsel Bureau
Bobbie Gang, Private Citizen
Madelyn Shipman, Assistant District Attorney, Washoe County
Vice Chairman Lee called the meeting to order and introduced Assemblywoman Tiffany.
Assembly Bill 367: Creates information technology commission. (BDR 19-48)
Assemblywoman Tiffany, Assembly District 21, introduced A.B. 367, a technology commission bill. She explained they once had an Information Technology Advisory Board and she doubted they had met in the last two years. It was ineffective and after being there for five terms she was aware they had some large failures and difficulties with their systems. She felt it important to have a technology commission.
Ms. Tiffany noted, aside from being members of the commission, their duties included study, keeping informed, review and comment, monitoring the agency and checking the effectiveness and efficiency. They also could look at internal audits, long-term planning, standards and practices and look at whether the agencies could share information. Most importantly, Section 5, number 2, stated the commission could even recommend termination of a project. She stated there was no prior statute that allowed termination of projects.
Ms. Tiffany called attention to the Governor’s request to be Chairman of the Information Technology Advisory Board. Originally they had not included him as a member of the commission but he felt technology was crucial to the direction of our state. She stated she had never heard of a governor being the chairman of a commission but a similar situation existed in Utah where there were two information technology committees. The two vice chairmen would be from the Senate and the Assembly and their legislative balance was modeled after Utah.
Assemblywoman Freeman said she liked the bill but did not see a fiscal note and wondered if one was attached. Ms. Tiffany replied she referred A.B. 367 to Ways and Means and originally the salaries came from the Legislative Fund. The fiscal note was located in the bill for the four member legislators and their salaries.
Vice Chairman Lee did not see private citizens receiving a per diem in the bill allowance in the bill. Ms. Tiffany said there was per diem for private sector members and they would also receive travel compensation. Legislators received salary plus travel per diem. He also stated in past committee meetings they had ensured the members were residents of the state of Nevada. He wondered with A.B. 367 if there were any requirements for residency in Nevada in order to be members of the committee. Ms. Tiffany stated the Governor appointed the private-sector members and said if he felt it necessary to have the state resident clause added they could do so. An interim committee was formed under the name of the Silver State Technology Committee and all the members were state residents and she assumed those people would be transferred over to the new commission for continuity.
Terry Savage, Director, Department of Information Technology (DoIT), stated they were in complete support of the commission. He noted they needed coordination among the various state agencies and the commission and this bill provided a good mechanism for accomplishing their goal. There would be cooperation between the executive and the legislative branches within the context of the constitutional restrictions.
Vice Chairman Lee closed the hearing on A.B. 367.
Assembly Bill 356: Makes various changes regarding public employees’ retirement system. (BDR 23-1249)
Assemblyman John Oceguera, Clark County Assembly District 16, asked the Chair to not take any action because they were waiting for actuary numbers from the Public Employees Retirement System (PERS) board. He wanted to review the bill and take action at a later date.
Mr. Oceguera stated A.B. 356 did three things. It had a three-year vesting as opposed to a five-year. It had an indexing of cost, which meant if employees were able to retire and unable to collect on their retirement until age 60 the cost could be frozen. A.B. 356 would index those costs by 1 percent until they were able to be collected. Thirdly, it allowed an employee to designate benefits to someone other than a spouse. Currently the spouse was the only one that could collect the benefit. He explained his bill was very similar to another bill that related to PERS.
Richard Ziser, Chairman of the Coalition for the Protection of Marriage, stated that their greatest concern was the creation of a new status of survivor benefits. He referred to page 5, Section 5, of the bill which gave definitions of the various people who were directly involved as survivors. It defined child, dependent parent, and a spouse as having legal ties to the member. The survivor beneficiary was simply a “designated person” with no legal ties, although the whole section revolved around “dependents.” He explained he had to look into the purpose of why this was added and found the payments would be provided pursuant to NRS 286.674, 286.676 and 286.6765, as all fell under benefits for survivors in Exhibit C. If it was vested plan that put money into a savings plan then the employee should be able to leave money they invested to anyone they designated. He stated that did not appear to be the case in this bill.
Mr. Ziser stated NRS 286.590 listed options and included those unmarried individuals. These individuals did have options and they could designate their beneficiary. In the definitions, dependents and legal ties had certain qualifications; this bill would make it possible to assign any designated individual as beneficiary. There was a specific reason why the “benefit for survivor” section was created in the first place. Nevada public policy was to recognize marriage and the family unit as a beneficial entity and necessary for a civil society. To his knowledge that had not changed and on the November 2000 ballot the protection of marriage initiative overwhelmingly passed with 70 percent of the vote. Currently, even the parent of the member had to be 50 percent dependent in order to receive the benefit and the new designation made no such requirement. As a representative of the Coalition for the Protection of Marriage they requested the provisions that created the new status of survivor beneficiary be removed from the bill. The public did not uphold the concept and the November election confirmed the issue.
Assemblyman Price stated he heard several descriptions in the prior testimony that needed to be clarified. He asked what a “civil society” was in Mr. Ziser’s interpretation. Mr. Ziser replied “civil society” was just our society and civil meant public like civilian and the society we live in. Mr. Price said he mentioned “public policy as it exists” and asked about his definition. Mr. Ziser stated public policy was created in many ways and legislators who represented the people needed to determine their public policies. To create policy would be to create a law but public policy was what the people within the state wanted it to be by vote. Mr. Price said he had 27 years in the Legislature and knew they attempted to set in statute what they felt was the best for the citizens of the state. When you earned benefits for retirement would you consider those benefits to be like “money in the pocket?” Mr. Ziser replied “yes” and the distinction was made where options in the law allowed you to get out what you put in. Mr. Price interjected and he was having a problem understanding Mr. Ziser’s concern about himself or any other public employee who had earned a benefit over a period of time being able to assign it to whomever they wanted, even their pet. If he wanted to have his horse or dog taken care of for the rest of its life what problem would there be? Mr. Ziser said as he read the law, the ability to assign the benefit was there and was located in Section 286.590 where options and the beneficiary would be chosen. It appeared the survivor benefits were completely separate and different from the paid-in earned benefits. When one died, the spouse would continue to receive benefits up until their death and there was no claim to the money paid. In this plan you did have a claim to what was paid in and it was very specifically outlined in that section of the bill. One could take those options and either have them paid out over the lifetime to the beneficiary of choice or take a lump sum of the difference paid into the plan or what the employer paid in. Currently the definitions of the people who received benefits were well defined and the new addition allowed someone to choose anyone.
Mr. Ziser declared the current law allowed for three different entities, which were child, spouse, or dependent parent to specify as a beneficiary and all had specified legal requirements. The new bill allowed someone to choose anyone with no legal attachment to the employee. His concern was this addition opposed the other portion of the bill. There was a purpose why that section was put into law and the purpose was based on the public policy of the state. The people of the state of Nevada believed the family unit was something to be protected and that is why that section was included in the law.
Assemblyman Oceguera informed the committee he would like a member of the Public Employee Retirement System (PERS) to provide more information to Mr. Ziser and the committee and they should be able to clear up any misunderstandings. He explained the provision was to provide equity between single and married people. Thirty percent of the members of the PERS system were single and did not have an opportunity to assign benefits to anyone.
Dana Bilyeu, Operations Officer, Public Employee Retirement System, explained the survivor benefit program was in place and had been established in the early 1970s. She noted the system was funded through employee and employer contributions, which continued throughout their careers. A.B. 356 would expand the applicability of a distribution. If an individual was to die while actively employed, it allowed them to have the same control they would have if they were to retire. Option two and three benefits were the highest amount of coverage that could be given to someone when they retired. Those choices were made at retirement and this bill would allow that same choice for single members of the plan. If married, the provision would not allow them to make a choice other than a spouse for the survivor benefit. A.B. 356 was an attempt to maintain equity between the married and single members of the plan.
George Pyne, Executive Officer, Public Employee Retirement System, stated they had a board meeting March 21, 2001, to consider PERS legislation. The board took no position on A.B. 356 pending further actuarial analysis. They hoped to have the actuarial figures in the near future.
Assemblyman Mortenson asked Mr. Pyne what actuary figures PERS was looking for. Mr. Pyne said in Section 2 along with Section 3, the higher multipliers would apply to members of the system for future service. The percentage changed for regular members versus fire members and in addition allowed for people accruing service with the higher multipliers to retire once they achieved 75 percent of average compensation. The cost had not been figured and therefore he needed to wait on the figures for this bill.
Assemblyman Humke asked Mr. Pyne if they had a request from the Legislative Council Bureau (LCB) to prepare a fiscal note. There had not been enough time to prepare all of the calculations to make a determination on the fiscal impact and Mr. Pyne confirmed he was correct. Mr. Humke asked if Mr. Pyne had any round numbers on what the fiscal impact would be and Mr. Pyne stated, “No.” Mr. Humke stated there seemed to be two parts to the bill: the creation of a new status of “survivor” and the substantive retirement benefit increases that were in the bill. With that in mind, Mr. Humke asked the Chairman to request that the PERS board provide minutes of their meeting to the committee and provide their position on A.B. 356. Vice Chairman Lee asked Mr. Pyne to take the request as a directive. Mr. Pyne agreed to provide their minutes.
Assemblywoman Von Tobel stated if a single member had previously been married part of her PERS was going to that spouse even though they were now divorced and if the member died the spouse no longer received those benefits. Would A.B. 356 change that situation? Ms. Bilyeu identified the situation she spoke about, and said if a divorce had assigned the former spouse to be the beneficiary and death of the employee occurred prior to retirement, the former spouse would not receive the benefit. If A.B. 356 became a law and the former spouse was the beneficiary the retirement benefit in this bill would apply. Currently the statute prevented PERS from paying a benefit to the former spouse even if they had a long marriage that ended in divorce if the employee died before retirement. Ms. Von Tobel questioned if the employee had retired and the former spouse was receiving part of the retirement because of a divorce decree, did the benefit stop for the spouse once the individual died. Ms. Bilyeu said that depended on how the selection was made for the optional benefit. If the individual named the former spouse as the optional beneficiary, benefits would continue for their lifetime as well. Ms. Von Tobel asked to clarify if employees could name a child rather than the former spouse with the new language in the bill. Ms. Bilyeu stated that was correct and often the courts assigned how benefits would be distributed. The court could compel the individual to name the former spouse as well. Ms. Von Tobel summarized there was no option and once the employee died the benefit ceased to be paid to anyone. Ms. Bilyeu stated she was correct.
Assemblyman Neighbors asked if the employer paid newly hired employees or did employees contribute. He recalled a few years back the option was given in the county and wondered if everyone contributed the same way. Mr. Pyne stated there were two different contribution plans that went into PERS. One was the employee-employer contribution plan and the other was the employer paid contribution plan. The employee-employer contribution plan, where both made matching contributions into the system, and the employee’s contribution paid into the system after tax contributions. If they were regular members of the system, the plan would pay 9.75 percent after tax into the program and the employer matched the amount. The police and fire rate was higher at 14.75 percent. The employee-employer option did not apply to all employees in the state. Employees of public employers that were under the employee paid plan prior to 1985 included employees such as the city of Las Vegas and all schoolteachers in the state. Mr. Pyne stated some employees had a choice between the two programs and others did not. The employer they worked for and the date they started work determined the program.
Assemblyman Mortenson asked for the court’s logic in allowing differentiation between benefits from one type of employer to another. Mr. Pyne replied the pension benefits from the system were the same for everyone. In 1983 the Legislature passed a law stating all employees not enrolled in the employer paid contribution plan would be enrolled in the plan by July 1, 1985. New employees would be enrolled after ten years of service. PERS was sued and the courts ruled those employees would continue to have the option of participating in one program or the other. Mr. Neighbors said he thought the action was in lieu of a pay raise for that year. Mr. Pyne verified that was correct, the ruling was in lieu of a pay raise or a cut in pay.
Bob Shaw, private citizen from Carson City, stated he was active in the retirement and survivor benefits portion of the plan. He indicated he was familiar with social security benefits and the state retirement system. His first concern, mentioned in prior testimony, was the possible soundness of the actuary in the system. Additionally he was concerned about the survivor beneficiary that had been redefined. If the bill passed he worried it would create more questions as to categories of individuals. He questioned what would happen if an employee designated someone in a foreign country as a beneficiary. He believed the state taxpayers’ funds should not be sent out of the country to foreign people or organizations that could be undesirable or even criminals. He stated there should be more definition of survivor beneficiaries. Mr. Shaw said money paid by the taxpayers into the employer paid portion of the state retirement, and money was contributed from taxpayers, should be made to beneficiaries with traditional families and not to people that were not legally married.
Chairman Bache stated to Mr. Shaw that in 1973 when PERS was revised it went from a split-funded system to an employer-paid system. At that time employees gave up 7.5 percent of their salary in an exchange for the new system and half of the contribution would be from the employee. The PERS was a replacement for social security so if the employee had social security there would still be a cost to the state. He interjected even if a person had a child that was a terrorist, that child received benefits. Mr. Bache stated if someone was single with no dependents and died today the state would not be able to determine a beneficiary. Mr. Shaw stated he was compassionate about children, but employers should clearly define the beneficiaries. Mr. Shaw again mentioned a foreign beneficiary and how the person could be a member of the Mafia. He felt the benefits should go to American people of generally good repute.
Chairman Bache stated his last name was “Bache” and he was of French ancestry. He asked Mr. Shaw if he had distant cousins in France would it be inappropriate to designate them as a beneficiary if he were single. Mr. Shaw stated Mr. Bache had a point. He felt that should be considered but stated the state also needed to define what type of people would receive the proceeds. His opinions were not clear but he wanted his questions considered. Mr. Bache stated he thought Mr. Shaw wanted the state to determine who the beneficiaries would be, and also to determine if they were worthy. Mr. Bache did not think he wanted the state to determine who was worthy of being a beneficiary. Mr. Shaw stated where taxpayer funds were involved the state needed to determine the quality of the beneficiaries and rule out those with criminal backgrounds. Mr. Bache stated the employees giving up a 7.5 percent salary increase funded half of the benefit. He felt half was the employee’s money and the matching part was much like social security. Mr. Shaw withdrew his objection.
Assemblyman Price stated to Mr. Shaw it would be hard for the state to determine if a law had been broken. An action could be illegal in Nevada and might be legal in other states. For example, using and growing marijuana was legal in the state of Oregon, a felony in Nevada and a misdemeanor in California. It would be hard to determine a “bad person” with such differences in laws.
Lucille Lusk, representing Nevada Concerned Citizens (NCC), stated her organization did not question the intent of the sponsor or his integrity in bringing the legislation to the committee. Their concern was the underlying public policy that designated survivor beneficiaries outside the legal boundaries of family ties. NCC was asking for the definition of the family to be people related by marriage or adoption, and the recognition there was a special honored place in society for the spouse in such a marriage, which could not be displaced by the “stroke of a pen.” The family when it functionally operated was shown by research and common sense to be the best place for the care and nurturing of children and the foundation of a civil society. The father in the home was now recognized as a significant and important influence in the development of the children. The roles of both father and mother should not be taken lightly or dismissed.
Ms. Lusk explained why NCC saw the action to change beneficiary law as a step to weaken and not strengthen the family. The legislation replaced the marriage and family ties that bind with something that was simply “designated.” She drew the committee’s attention to the fact the action could be extremely costly to the state if individuals designated young beneficiaries. As a lifetime benefit, an individual could receive benefits for 40 to 50 years beyond what would be expected of a surviving spouse. She noted this fact should be considered in the actuary and fiscal note. The action she indicated also created a new inequity. A married couple could not decide together they would prefer their lifetime benefit went to a grandchild extended over a 40-year additional payment time. The Legislature should balance considerations on all sides to achieve the end that the sponsor was seeking.
Raymond McAllister, representing Professional Firefighters of Nevada, stated he signed in as “neutral” on the bill. They supported parts of the bill but needed to clarify “survivor benefits.” If a member was married and had 10 years in the system and died the spouse received Option 3. If they had 15 years in the system the spouse received Option 2, which had the most sought-after benefits. He explained to the committee he had been a state employee for 17 years and was divorced with a small two-year-old son. If he died today his son would receive $400 a month. The stipend was not even the amount of child support he paid his former wife. If the beneficiary benefit were passed, his son would be entitled to Option 2 and would be able to receive substantially more than $400 monthly. A.B. 356 was a method to correct the inequity that had been in place for many years. Not everyone stayed married; however, they should be able to name a beneficiary. Mr. McAllister stated it should not matter whether he wanted to name his parents, a sister, or brother since he had contributed to the system for 17 years. His contribution was the same amount as everyone else and he should be entitled to name a beneficiary that could receive his benefit if he should die prior to retirement.
Assemblywoman Von Tobel said Mr. McAllister brought up another inequity. Once someone retired their former spouse received part of their retirement because that was the law. Single employees received more choices under the bill. PERS needed to clarify the benefits the former spouse received before they made changes to single employee’s benefits. Mr. McAllister acknowledged her concern and was sure the PERS staff would give that consideration.
Assemblywoman Parnell wanted to thank Mr. McAllister and acknowledged his concerns. She indicated prior speakers had mentioned a “civil society” and felt his son’s welfare fell under that definition.
Ronald Dreher, President, Peace Officers Research Association of Nevada, testified he had a “neutral” position on A.B. 356. There were provisions not mentioned in previous testimony in the bill that he supported. The association had tried for many years to gain equity in the system. Peace officers were allowed to exit the system at an age where they could enjoy their benefits. A.B. 356 benefited both the regular personnel and the police and fire employees. Mr. Dreher questioned the beneficiary in the event a child was given $400 monthly to age 18 or possibly age 23 if the child was a fulltime college student. Under this bill the child received benefits for the rest of his life; however, if prorated, the amount dropped from the $400 monthly benefit to a lifetime of $300 monthly. Prorating reduced the monetary benefits.
Assembly Bill 225: Makes various changes to provisions regarding meetings of public bodies. (BDR 19-82)
Assemblywoman Freeman, District 24, Reno, introduced A.B. 225. Since Assemblywoman Jan Evans passed away last session Mrs. Freeman searched for a bill that would honor her memory. Mrs. Freeman said Ms. Evans had such respect for the elective process and for open government and would have supported her efforts on the bill.
Mrs. Freeman identified two similar cases regarding open meeting law violations. The district court judges on opposite ends of the state came to different and opposing conclusions and she referred to a newspaper article (Exhibit D). The court systems had to make decisions about what was right and wrong. The current open meeting laws created distrust in the community and voters felt decisions were kept private. Mrs. Freeman stated public officials and elected people needed to conduct all their business in the public eye and were responsible for making sure they behaved properly.
Mrs. Freeman asked for a three-week period after introductions so everyone could review and decide how they perceived the bill. Open meeting laws needed more clarification and she wanted to make the law better. She thanked the committee’s legal counsel, Eileen O’Grady, for helping with the bill draft and asked for suggestions on clarity to help A.B. 225 succeed.
Mrs. Freeman presented (Exhibit E) and reviewed Section 1, lines 10 through 13, which she said reflected on the definition of the word “deliberate.” On page 2, lines 2 through 14, gatherings were described and also the terms of a quorum. She decided to amend and remove lines 26 through 35 because of opposition. The most important part of the bill would be to address the issue of the open meeting law. She indicated possibly in a future session the committee could address the portion of the bill that dealt with tax dollars. If an agency received a certain portion of taxes they would need to comply with certain provisions of the open meeting law.
Mrs. Freeman said page 3, lines 13 through 16, called for a sanction. If there was an intentional misuse of compliance with the open meeting law, there would be a $5,000 fine. She explained in order to get attention to the seriousness of not complying there needed to be a monetary fine. Mrs. Freeman suggested without going into the court system the money could be used to educate and train future candidates.
Assemblyman John Carpenter, District 33, had an amendment to A.B. 225 (Exhibit F) and gave some background to the committee that created the amendment. He was on a county commission for four terms before the open meeting law was ever something they considered important. Through the years he felt as a public official they needed to “let the light shine in.” He and another commissioner literally took the door off their office as a first step to “openness.” He stated in one instance the city council in Elko took a piece of his property by eminent domain without proper notice. Later the city of Elko reversed their actions and was required to pay him $2500 to cover some of his legal fees. He felt the amendment helped those kinds of situations where agendas indicated a certain discussion would take place. Finances, property, or even mental or physical capabilities should be given extra notification. Recently the Elko school board conducted interviews to replace someone who had resigned. Mr. Carpenter said although they had a hard decision to make between very qualified candidates, they interviewed those people in front of an audience of approximately 100 and made their decision during the open meeting. They all needed to follow examples of conducting meetings in the open. According to Mr. Carpenter our government worked best when decisions were out in the open.
Assemblyman Price agreed with Mr. Carpenter’s proposed amendment. He advised the committee he also had a similar situation because his first home was also taken by eminent domain. He was forced to get an attorney and the problem was corrected.
Assemblyman Lee took note of page 2, line 11, “The series of gatherings were held with the intent to avoid the requirements of this chapter.” He felt it was a very powerful point in the bill and wanted Mrs. Freeman to explain the words she had written. Mr. Lee said the section reflected upon reasons for or against members of a public body avoiding the open meeting laws. If two people from a public body walked from a meeting would they be in violation of the open- meeting law if they discussed an issue? Mrs. Freeman stated they must not loose sight of common sense. Why would an elected official write something into law that would keep two people in elected offices from talking to each other when they walk out of a meeting? Mr. Lee stated he had a great concern for that portion and on the second part which was on page 3, line 14, “impose a civil penalty not to exceed $5,000 on a member of a public body,” and asked who would pay for the legal representation in the public body.
Assemblyman Price stated that, without naming any organizations, there were members of public boards in the Reno area who held meetings of two or three people to discuss decision-making processes. Those meetings were termed “serial meetings” and assumingly tried to avoid the open meeting law. He knew they were trying to correct this from happening with A.B. 225. Mrs. Freeman confirmed that was true in the Reno area but felt they should clear up all open meeting laws and help restore confidence in our government.
Assemblyman Mortenson stated Mrs. Freeman had some “bombshell” implications in her bill. One was “acquisition and exchange of facts” that was excluded from the open meeting law in the past and was an important addition because of personal experiences. Would the “series” language keep a legislator from going to each office in the building talking to fellow elected officials? Mr. Mortenson said there could be a perception they would be violating the open meeting law by doing such a thing. Mrs. Freeman reiterated a lot of what they did was perception rather than reality. She indicated she was willing to receive any suggestions to provide the kind of clarity they needed to restore faith in the government.
Assemblyman Humke said he had trouble with the new subsection 2 of Section 1, where the word “deliberate” was defined. He asked if “deliberate” could be defined and referred to as one member of a body or was it intended to mean where more than one member got together for discussion of an issue. Mrs. Freeman assumed it meant two but she asked the counsel, Eileen O’Grady, to respond to the question. Ms. O’Grady stated the word deliberate used in the definition of meeting meant the “gathering of members of a public body, in which a quorum was present.” The gathering would “deliberate” toward a decision or to take action and applied towards the group. Mr. Humke thought it meant a government relations specialist that received a document, looked at it, thought about it, and then was perceived as “deliberating.” Mrs. Freeman replied she would work on this with Ms. O’Grady. Mr. Humke stated the definition was modified by subsection 3 but still was unclear as evidenced by the 18 court cases and 28 Attorney General opinions on the open meeting law.
Mr. Humke referred to section 2 of the new subsection and the $5,000 civil penalty. If that section passed there would be more judgment-proof candidates running for office and the longer they were in the Assembly the less judgment-proof they became. He questioned the number of cases where action had been declared void and where there was an injunction issued on the public body. Mrs. Freeman stated she did not have that information but would get back to him with what he requested. Mr. Humke questioned the intent in subsections 4 and 2 and asked to have an explanation. Ms. O’Grady replied the court could take an action against the public body and the subsection referred to a member of the public body. Mr. Humke said his party recruited upstanding citizens as candidates and were often told, “Why in the heck would I want to run?” The intent in those sections indicated to him if they were to support the wrong majority, commissioners or members of a committee could receive a $5,000 penalty.
Assemblyman Price came back to the question raised regarding the Legislature. He gave a background on the open meeting law for the audience. The Legislature was exempt because they were strictly a “temporary body.” Also, in many cases open meeting laws required posted agendas five days prior a public meeting. There were times in past years where committees tried to have closed meetings and there was so much uproar that those rules were changed.
Lorne Malkiewich, Director, Legislative Counsel Bureau, apologized to Ms. O’Grady and the rest of the Legal Division for acting as legal counsel without authority. He confirmed Mr. Prices’ statement was correct and the Legislature was exempt from the open meeting law. If they put a statute of limitation on the Legislature it would be unconstitutional because each house was the judge of their proceedings and the qualifications of its members. There was a constitutional requirement that the Legislature’s committees hold open meetings and that was done by initiative petition a few years ago. There were 25 interim committees and each one needed to comply with the open meeting law so the issue of them being exempt would never come up. Their practice and intent was to show that when they did have time to schedule meetings in advance they did comply with the open meeting law.
Bobbie Gang, private citizen, appeared on behalf of herself. She stated she was very pleased Assemblywoman Freeman brought A.B. 225 before the committee. She also felt the amendment Mr. Carpenter added to the bill would be a good addition. She explained she was a past elected board member of the Incline Village General Improvement District (IVGID) and was on their board of trustees and also a past member of the State Public Works Board. Since she served on both of those boards she was very familiar with the open meeting law and while serving wanted to comply completely. Ms. Gang always wanted to avoid perception of impropriety at any of the meetings or actions that were taken. She felt the definitions in A.B. 225 addressed some very critical hazy areas that she was concerned with. The IVGID board was a five-member board and if three members were at a public event or private social event in their small community there was criticism that they might be deliberating toward some decision. She declared the definition of “deliberate” was a very important addition because it clearly explained what could and could not be discussed when they gathered together. The “series of gatherings” was also very important. She was part of a gathering of three that reached a decision and expressed their opinion and the staff was present at that time. Although they were not in violation of the open meeting law there would be more clarification in this area and where it stated “with the intent to avoid the requirements of this chapter.” It would clarify and protect any of the elected officials that attended the meeting.
Chairman Bache said the committee had a quorum and therefore would introduce one bill draft.
ASSEMBLYMAN NEIGHBORS MOVED TO INTRODUCE BDR 27-528.
ASSEMBLYMAN PRICE SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT.
Madelyn Shipman, Assistant District Attorney, Washoe County, wanted to go through the bill and speak first about process and training. Washoe County held caucuses and very rarely needed to meet individually with any of their elected officials. Ms. Shipman stated the Washoe County Commission consisted of five people, but there were also 50 different advisory groups and other committees and boards that were also subject to the open meeting law. She personally did the training with all groups and provided them with an orientation session with extensive coverage on the open meeting law. They believed the intent of the law was open decision making and did not feel there was a lack of understanding on the local level. Ms. Shipman thought this bill addressed “open decision-making.” There was perception during the Mapes situation with the redevelopment agency in Reno that there were decisions, commitments and promises made at “serial meetings” during that time. The court found no one guilty but an action was taken in the southern part of the state for the same reason and was ruled on differently. Both cases were currently being heard at the Supreme Court level. Basically, she was not clear on the intent of A.B. 225 but offered suggested amendments (Exhibit G). Mrs. Freeman indicated she did not want decisions made behind closed doors and she was told her bill would clarify this process.
Ms. Shipman said she now had questions on A.B. 225. If a “gathering” was an actual meeting, they could provide the same information one-on-one to all their members on committees and boards. The same information could be provided on the phone, through correspondence or e-mail and she was not sure that was the real issue. She periodically needed to speak one-on-one or to possibly two members of the five-member board at a time for convenience on subjects that were to be reviewed in future meetings. The members received the benefits of another person’s perspective. She said she could change how she communicated with members, but it would take more time and also staffers’ time to do one-on-one briefing. The concept that a “serial meeting” or a meeting with less than a quorum could not be utilized to obtain a commitment, promise or action under the definition of the statute, would be of great concern.
Ms. Shipman said Section 2, paragraph 4, was not appropriate. It applied not only to citizens but any other person who was approached to meet with an elected official to provide information, gather facts or to lobby. They met with elected officials all of the time and sometimes in groups of more than one. Washoe County handled daily complaints and although Mrs. Freeman referred to “common sense,” people came before their commission with complaints and she was required to respond on a regular basis. If they were alleged to have had discussions they would be guilty. They could not operate without having discussions with their members. She gave an example of how she perceived this section of the bill. Someone approached two of her commissioners after a meeting and pulled them aside to talk about an issue under their jurisdiction, and although the two members were unaware, the person then approached another member of the board. This would then become a violation of the open meeting law under the present language of A.B. 225. Which member was charged the $5,000 penalty? She asked if it was the one who did not know that two other members already were covered or was it all three members. The intent might be in the bill, but the language left everything wide open and all of those boards and commissions were subjected to the potential $5,000 penalty. As a public body they were not allowed to pay fines for a violation made by a member. She needed to be clear on the intent of this bill so those individuals would not inadvertently be in violation without knowledge of being the “third person.”
Ms. Shipman had no problem with Mr. Carpenter’s proposed amendment to the bill. As a representative of Washoe County they practiced open government and that was part of their mission statement. They had caucuses before all of their meetings so that the Monday afternoon before their Tuesday meetings they could clear up any questions that might arise over items to be discussed. Their “serial meetings” were kept to a minimum but sometimes they were essential.
Assemblywoman Berman asked Ms. Shipman if she made a conference call to three of her commissioners and provided them with information and a decision was made was that discussion considered a violation. Ms. Shipman replied it would be a violation and in fact they specifically trained staff members and those who came into contact with commissioners not to seek any kind of response that would be a potential decision. She understood someone’s body language, or the way they looked, or how their eyes might move, or the types of questions they asked usually divulged the position they were taking. Ms. Shipman felt if there were an actual request for a commitment or promise for a future vote and the member who was covered by the open meeting law gave information, it would be considered a violation and would be even under today’s law.
Assemblywoman Berman further asked if she were on her computer and put three of her members on the top line and all talked at the same time as they do currently in committee, would it be similar to communication on a telephone and also be a violation. They could all read the responses on the laptop so it would be similar to communication on a telephone and also a violation. Ms. Shipman stated she considered it the same as on the phone and the same rules applied. There should not be any commitments or decisions made on that type of exchange. If it were for the purpose of providing information then it would be appropriate. Ms. Shipman read the intent of the bill to really stop that kind of informational exchange between members. The issue was there were to be no commitments or promises made in an arena outside of a public hearing and therefore all communications would be implicated. Ms. Berman said it was going to be very hard to enforce. Ms. Shipman said that was the current law today.
Assemblywoman Gibbons asked Ms. Shipman if as a staff member and legal counsel to the commission she provided them with information only and not decisions. Ms. Shipman replied yes, but she also provided them with a thought process or an opinion and reason as to why she did something a certain way. She did not ask them to vote or provide any opinion a certain way if it was an item that came before them. Many issues were things that happened ten years ago and were history a new councilman needed to be made aware of. She felt under A.B. 225 those issues needed to be brought to their attention.
Ms. Gibbons asked Ms. Shipman how she thought the bill could be improved because there were problems with those issues on boards she herself had served on. She asked if it would be more helpful if they gave a definition for “information.” Ms. Shipman said first the body needed to decide on their direction and what they wanted to accomplish. If the purpose was to avoid “serial meetings” with at least two members together then one could say there should be no gatherings or meetings with less than a quorum. Ms. Shipman thought the original intent was not to have decisions made outside of the open public forum, and therefore the bill should not address “meetings.” She stressed they could get around the open meeting rules with phone calls by talking to each other and the wording in A.B. 225 did not identify or define when a meeting violation would occur.
Assemblywoman Freeman was not sure why Ms. Shipman was confused as to her intent on A.B. 225. She found it difficult to respond to her. Ms. Shipman said her confusion was about the remedy needed to address what the problem was and the problem was the perception that was created by having “serial meetings” of less than a quorum. Ms. Freeman stressed it was a bigger issue and the perception went beyond “serial meetings.” There was a possibility some members were pressured and persuaded before decisions occurred at those meetings. Mrs. Freeman said they all lived in the state of Nevada and any law passed affected the entire state. She had not targeted Washoe County or the city of Reno or anyone else but felt they should work together towards a plan. She referred to Ms. Berman’s questions and confirmed the new technology was not easy to enforce but was worthy of discussion.
Assemblywoman Von Tobel referred to Ms. Shipman’s testimony and agreed she brought up some valid points. She recognized their committee operated as a legislative body in the same way she described her county commissioners. They discussed bills before hearings, gathered information and often met in groups because of time constraints. She asked Ms. Shipman if she could conduct business under the language in the bill as it appeared without amendments. Ms. Shipman replied it would be more difficult to conduct business and the penalty clause would make them extremely conservative about how they applied or tried to apply the bill. Ms. Shipman also would need to publish a notice that their commissioner would be in a certain place at a certain time. Currently they tried to do that but it eliminated all meetings of less than a quorum.
Ms. Shipman stated information could not be received without being subject to the potential of someone alleging they were purposely circumventing the law. There were a lot of people willing to make allegations and every opinion from a constituent was fielded to the Attorney General’s Office. Usually she only needed to send explanations of what occurred and that ended the issue but members reacted more conservatively, to the point of isolating themselves because of the way they were judged. Ms. Von Tobel was concerned because they gathered information about particular items in groups and if that were restricted they would have difficulty functioning.
Assemblyman Mortenson addressed Ms. Shipman and said when he first looked at the “acquisition and exchange of facts” in the definition of “deliberate” he thought back on complaints from his constituents. When they held routine informational meetings where staff addressed a quorum or the whole body of groups it went beyond the dispensing of information. Those actions were clearly against the open meeting law. He felt the bill would cure that problem but now he felt it might create other problems. Mr. Mortenson hoped to accomplish some good things that were intended in the bill. Could they poll all of a governmental body under the current open meeting law? Ms. Shipman replied the answer was no and currently they were not allowed phone calls, polling or walking quorums. The public attorney who supported and was responsible for the board and the staff would be entirely responsible. She was well known to hold up her hand and say, “that’s far enough and they can’t go any further” and advised them to leave their discussion until the next day’s meeting. Her commissioners were sensitive because she was very aggressive and interrupted them to keep them from getting into trouble. Ms. Shipman said members needed to understand how far they could go and that would be considered a training issue. Mr. Mortenson felt the bill was good but needed to be crafted so it would not impede the acquisition of information.
Assemblyman Price verified if Ms. Shipman gave information intended to influence them would it not be considered illegal under current statutes or the proposed bill. Ms. Shipman was concerned with the bill so she provided recommendations to her council members and never told them what to do but only provided guidance. Mr. Price said all of the hundreds of boards and councils were really one of the more major players in the development of policy. When a board sent a recommendation to their city council or their county commission approximately 75 percent of the time the recommendation was used.
Assemblywoman Smith said she was a major proponent of openness and had been a former advocate of various public meetings for many years. She was always concerned about making a decision in the public forum. She had a question relating to staff providing input but this bill referred to “anyone.” She mentioned her long history with the Parent Teachers Association (PTA) and how they trained their members on how to advocate on an issue. As a PTA representative she was limited to speeches of three minutes at school board meetings. It occurred to her she had a long history with the PTA and their major objective was advocacy. Because of the time constraints, the PTA always talked to their members prior to meetings because of the abundance of information they needed to present in a short period of time. Mrs. Smith questioned if it was illegal to consult with a neighbor on a zoning issue and then meet with a school board member at the District Office one at a time on the same issue. They were not looking for a commitment but provided zoning facts. Ms. Shipman referred to Ms. O’Grady, Legal Counsel, who stated it would not apply to meetings held one-on-one. If she did one-on-one and if the third one was the quorum of the board that member would be in violation and not the one that was consulting. The member would not know if they were number three or two or one. In her opinion they could not do that kind of lobbying effort without placing a member in potential jeopardy of being in violation of the law.
Assemblyman Neighbors asked Ms. Shipman if her county manager was responsible for the preparation of the agenda. Ms. Shipman said the county manager was not the only person with the ability to place matters on the agenda. The publication and processing would be the responsibility of the county manager’s department. The same issue Assemblywoman Smith brought forward also applied to staff. Even staff would not know if they were in jeopardy of being the third person. She also felt if she needed to talk to her commissioners and provide information it was appropriate to provide the information to not only two members but to all five members. Mr. Neighbors said it was possible something might come up in the agenda one or two members were not prepared for, were not aware of and they might request removal from the agenda. Ms. Shipman stated they had rules and the county manager could not pull items off an agenda that was put on by a commissioner and the same rule applied for their elected officials.
Assemblywoman Parnell felt with this additional constraint it would be too hard to get people to run for public office. She needed to think strongly about the position if she was required to abide by all those rules. If she asked a person if they had spoken with two other members of the board before her or where she was on the list it would be difficult to consider such a position. She hoped if there were a subcommittee it would consider the risk to candidates and elected people of a $5,000 fine.
Chairman Bache closed the hearing on A.B. 225 and announced they would continue the hearing the next day. Mr. Bache adjourned the meeting at 10:48 a.m.
RESPECTFULLY SUBMITTED:
Linda Utt
Committee Secretary
APPROVED BY:
Assemblyman Douglas Bache, Chairman
DATE: