ASSEMBLY COMMITTEE ON GOVERNMENT AFFAIRS

MINUTES OF THE meeting

of the

ASSEMBLY Committee on Government Affairs

Seventy-First Session

March 28, 2001

The Committee on Government Affairswas called to order at 8:14 a.m., on Wednesday, March 28, 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

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:

Mrs. Vivian Freeman

GUEST LEGISLATORS PRESENT:

Assemblywoman Vonne Chowning

STAFF MEMBERS PRESENT:

Eileen O’Grady, Committee Counsel

Dave Ziegler, Committee Policy Analyst

Glenda Jacques, Committee Secretary

OTHERS PRESENT:

Andy Anderson, Executive Director, Las Vegas Police Protective Association Metro, Inc.

Ronald Dreher, President, Peace Officers Research Association of Nevada

Gary Wolff, lobbyist, Nevada Highway Patrol Association

Nile Carson, retired Deputy Chief of Police, Reno Police Department

Jim Nadeau, Captain, Washoe County Sheriff’s Office and the Nevada Sheriff and Chiefs Association

Stan Olsen, Lieutenant, Las Vegas Metropolitan Police Department

Danny Thompson, lobbyist, Nevada State American Federation of Labor and Congress of Industrial Organizations (AFL-CIO)

Benjamin Blinn, citizen, Carson City

Bob Gagnier, Executive Director, State of Nevada Employees Association

James Spinello, lobbyist, Clark County

Carole Vilardo, lobbyist, Nevada Taxpayers Association

Assembly Bill 282: Revises provisions relating to refusal of peace officer to submit to polygraphic examination. (BDR 23-1271)

Assemblyman Douglas Bache, Clark District No. 11, introduced A.B. 282, which revised internal affairs investigation’s polygraph exams.

Andy Anderson, President, Nevada Conference of Police and Sheriffs, thanked Assemblyman Bache for the bill because the polygraph had become a problem in some of the internal affairs investigations of police officers. They felt the polygraph had been misused by investigators. Telling the truth should be “black or white.” The polygraph exam had an area called “inconclusive” and that “gray” area caused many problems.

Mr. Anderson said they questioned the validity of the polygraph because it was administered by individuals. How a polygraph examiner phrased the questions affected the exam results. The questions asked could be ambiguous, subjective, or perceptions of an event. There were many interpretations of how a person could fail a polygraph and that perception caused problems. The perception of an officer being deceptive during an exam discredited his testimony. The interpretation of whether a person was telling the truth could be subjective.

Ms. Parnell was concerned that Section 2, subsection 4, deleted the language, “Evidence of any refusal by a peace officer to submit to a polygraphic examination . . .” The choice for a polygraph was given on page 1 and page 2 said there would be no reference if you chose not to take it. Eliminating the polygraphic requirement and eliminating the reference they did not take it would eliminate any recourse the administrative process had.

Mr. Anderson replied the bill’s intent was to stop the perception the officer was guilty because he refused to take a polygraph exam. A notation that an officer refused to take the exam could be perceived as trying to hide something.

Ms. Parnell said when the polygraph exam went from a “must” to a “may” there should be some administrative recourse available. Mr. Anderson explained the intent was to eliminate the perception that not taking the exam was an admission of guilt.

Mr. Mortenson questioned what conditions required a polygraph exam. Mr. Anderson responded under present law, if a witness or victim took the polygraph and passed it, the suspect officer was required to take one.

Mr. Mortenson wondered how the public would perceive a police officer that was not required to take the exam. Mr. Anderson replied the victims or witnesses were not required to take polygraphs.

Mr. Mortenson said if the media reported a witness passed a polygraph exam and the officer refused to take a polygraph, the perception would not be favorable.

Mr. Anderson said the basis for the polygraph was subjective. The polygraph questions and interpretations were based upon perceptions and could not be credible.

Mr. Mortenson sympathized with their position, but worried the media would portray policemen as hiding things.

Assemblyman Bache said he brought the bill forward because of the unreliability of polygraph exams. He gave an example. He had asked Mr. Lee, Mr. Neighbors and Mr. Williams, “Have you been the committee Vice Chairman?” They had each answered yes and passed that part of the exam because, at one time or another during the session, they had performed the Vice Chairman function. If the second question was, “Are you always there when the chairman needs you?” the answer could be “yes,” “no,” or “inconclusive” because it was a subjective feeling whether or not you had always been there when needed. The lack of concrete evidence produced gray areas in the polygraph exam.

Mr. Price believed all polygraphs should be disallowed because of the many variables that affected the results.

Mr. Williams agreed the test should not be used because it was not admissible in court. He felt it was wrong to require the victim to take the test and not the policeman. Any person who filed a complaint with the Metro Police Department was asked to take a polygraph exam. Victims were intimidated by that. Complaints were considered to have no merit if the alleged victim did not submit to an exam. The bill should be expanded to cover police officers, victims, and alleged victims. All cases should be decided by the information available. Because of increased accusations of Las Vegas police misconduct it would be unwise to have the polygraph exam removed for police officers only.

Mr. Anderson responded that A.B. 282 addressed police officers only. He felt the polygraph should never be used. There was no regulation that required a citizen to take a polygraph when they filed a complaint with the Metro Police Department. Thousands of allegations of misconduct were processed monthly and many victims or witnesses did not take a polygraph. All complaints were investigated, whether a polygraph exam was taken or not. Because the polygraph was unreliable, he would support any legislation that removed the requirement to take it.

Mr. Williams stated a disservice would be done to police officers and the community at large if the requirement to take a polygraph was removed for one and not the other. The initial response of the Las Vegas Metro Police Department was for the complainant take the exam. The individuals he accompanied to the police department had their allegations determined to be unfounded because they refused a polygraph. The committee should entertain policy that was equal to both police officers and citizens.

Chairman Bache stated he would support Mr. Williams’s suggestion if there were statutes that addressed citizen’s rights concerning polygraph exams. He felt the situations where citizens took polygraph exams were informal regulations of the Metropolitan Police Department and not addressed in statute.

Mr. Williams suggested maybe a statute should be written to prohibit the police department from requesting a person to submit to a polygraph test. Mr. Bache said there would be no problem in doing that.

Ms. Gibbons said citizens had the right to refuse a polygraph without punitive damages and questioned whether A.B. 282 gave the same opportunity to police officers.

Mr. Anderson answered affirmatively. If an officer refused to take a polygraph he could be charged with insubordination and possibly termination.

Mr. Brown questioned if there were regulations that governed polygraph exams and the interpretation of results. He felt inconclusive tests with ambiguous questions should be thrown out.

Mr. Anderson replied the polygraph examiner school had their own internal rules, regulations, and processes they went by. The examiner and the results were both avenues for potential abuse. A recent complaint of abuse required two officers to take a polygraph. One officer’s result was “inconclusive” and the other was “deceptive.” The pre-termination hearing divulged the witness’ polygraph was “inconclusive tending toward truthful.” The officer’s exam was labeled “inconclusive tending toward deceptive.” Because “inconclusive” was neither pass nor fail, it was misrepresented differently in each situation. The second officer who showed deception in the test had the decision reversed because he did nothing wrong. The polygraph exam was unreliable and abused.

Mr. Brown questioned what the law said regarding “inconclusive” polygraph exams. Mr. Anderson said NRS specifically addressed “pass” and “fail” only.

Mr. Brown wanted to know what regulations governed the police officers’ polygraph exams. Mr. Anderson said they would be governed by internal policies of the organization or department giving the exam. Hearings or arbitration boards perceived the refusal to take a polygraph exam as “hiding guilt.” An “inconclusive” test did not reflect truth or innocence but gave the perception of “guilty” to the hearing officer.

Mr. Brown asked if the questions were objective or subjective and if the results were discussed.

Mr. Anderson said sometimes a “pass” or “fail” of the polygraph was discussed. The exam typically had control questions that led up to subjective questions. The arbitrator had control over how much detail was discussed in the hearing. Sometimes the arbitrator looked at the detail of the questions and sometimes he did not.

Mr. Brown questioned why NRS 289.050—“no investigator may make a notation of the refusal in his report”—and 289.070, subsection 4—“if an officer refuses to submit to a polygraphic examination pursuant to this section an investigator may make a notation of the refusal in his report”—gave different provisions for the refusal of taking a polygraph.

Mr. Anderson stated he did not know, but he had proposed (Exhibit C) the elimination of subsection 4 so NRS 289.070 and NRS 289.050 would be identical.

Mr. Brown noted the amendment and questioned if there was a difference in the proposed bill that related to different refusal standards. Mr. Anderson replied the elimination of subsection 4 would comply with the intent of the bill. The refusal of the exam was not part of the police officer’s record and there should be no reference to it.

Mr. Neighbors questioned the reliability of the polygraph exam. The medical profession had acknowledged a doctor’s appointment would increase your blood pressure and possibly a polygraph exam would cause stress. He questioned how other states had handled the same situation.

Mr. Anderson responded the International Union of Police Associations, IUPA, had studied polygraph exams. He said it varied from state to state. Some used them, some did not, and some did not care. The original intent of the polygraph was to assist investigations. Lately it had become the balancing factor between right and wrong. A.B. 282 wanted to prevent polygraph abuse and the potential to destroy careers. Police officers were required to investigate burglaries, homicides, and murders and convict people without the use of a polygraph exam. But an internal affairs investigation used the polygraph as their major investigative tool. It was hard to be calm taking a polygraph exam when your career and livelihood could be affected by the results. Those inconclusive results were what decisions were based on.

Mr. Neighbors agreed the perception of a person not taking a polygraph was not favorable. He questioned how qualified the polygraph examiner was and what the equipment was like. Mr. Anderson said they could show the equipment to Mr. Neighbors if he came to the Las Vegas Metro Police Department.

Mr. Williams referred to Ms. Gibbons’ comment that police officers should have the same rights as individual citizens. The consequences of a police officer not taking the test would result in “business as usual”, but a victim not taking the exam would have different consequences. The Las Vegas Review Journal had a front-page story that stated police officers in Las Vegas used “disagreeable conduct.” The victim would lose when they did not take the polygraph because their complaint would not be taken seriously. An officer who refused to take the exam would have no consequences. The bill would give an advantage to police officers and a disadvantage to citizens.

Mr. Anderson agreed with Mr. Williams that the benefit of not taking the polygraph should be the same for a citizen and a police officer. No notation should be made if a polygraph was refused. The police officers did not want to be found guilty of something inappropriately. The perception of misconduct, theft, or excessive force was damaging to a career. An officer’s reputation followed them, correct or not.

Mr. Williams did not want to do anything that would affect someone’s career, but false allegations against citizens were detrimental. There were a lot of police policies that were unwritten. A citizen was illegally profiled in an armed robbery and detained in a paddy wagon for four hours. Profiling was illegal but done by police agencies. Certain police agencies maintained “unwritten” policies and the Legislature needed to be careful to process bills that provided protection to citizens. He felt it was prudent to provide the same protection to citizens.

Ms. Gibbons felt the bill would give police officers the same protection that employees were given under NRS 613.480, which she paraphrased:

It is unlawful for any employer in the state to directly or indirectly require, request, suggest, or cause any employee or prospective employee to take or submit to a lie detector test and if he refuses, declines, or fails to take or submit to any lie detector test or on the basis of the results of it they cannot discharge, discipline, or discriminate against them in any manner, deny employment, or promotion, or to threaten or to take any such action against any employee or prospective employee.

She felt A.B. 282 would give the same benefits to police officers that were in statute for other employees. She suggested a letter of intent to put the concerns of the committee on the record. The police officers were a unique organization and dealt with individuals who were less than honest. The bill would clarify the law and make police officers equal to other employees.

Mr. Williams stated police officers dealt with criminals and ordinary citizens. Ordinary citizens who had been wrongly accused were tagged ex-felons and carried that label with them. No one wanted to see citizens or police officers wrongly accused. The effort of the bill to eliminate any type of false accusation against a police officer was commendable and should pertain to the public as well.

Mr. Neighbors echoed Assemblyman Williams and the need to eliminate the polygraph exam totally.

Mr. Brown commented the evidence had shown the polygraph exam to be a useful tool and maybe it should not be eliminated totally. NRS 648.183 through 648.199 discussed administration of polygraph exams. Maybe regulations should be developed that would address how the evidence should be looked at. He felt the term “inconclusive” should be thrown out and the questions used should be analyzed by the hearing officer. The lack of analyzing the polygraph questions was a form of abuse.

Vice Chairman Lee questioned what disciplinary actions were taken with police officers. Mr. Anderson responded the refusal to take a polygraph was insubordination and could result in a written reprimand or termination. He did not know of any situation where an officer had refused to take the required polygraph exam. The officer was required to take a polygraph when a citizen filed a complaint and passed the polygraph. The polygraph could not present a clear issue of what was “pass” or “fail.”

Ronald Dreher, President, Peace Officers Research Association of Nevada (PORAN), agreed with the concept of A.B. 282. In 1963, Brady v. Maryland [83 S.Ct. 1194 (1963)] dealt with the perception of the officer being dishonest or deceptive and the effect it had in labeling the witness as “unfit” (Exhibit D).

Mr. Dreher suggested the language “No person shall be compelled to submit to a polygraph after making an allegation, but if” be inserted in Section 2, paragraph 2, to address the concerns of Mr. Williams. A criminal investigation used the exam at the end of an investigation and internal affairs should use it the same way. The proposed Section 1 amendment mirrored the California peace officer’s bill of rights that dealt with polygraph exams (Exhibit E). The Reno Police Department attorney and PORAN’s attorney agreed the Legislature was the appropriate forum to eradicate and clarify the words “purported activities.” The internal affairs polygraph was not voluntary and the officer could lose his job. A false polygraph that showed inconclusive or deceptive results would be detrimental to an officer’s career.

Chairman Bache suggested the language to be inserted should be “No one should be requested to take a polygraph.”

Mr. Neighbors questioned how many polygraph exams had been admitted in court. Mr. Dreher responded he did not know of any. The courts did not accept polygraph exams unless both sides agreed to the admittance of the exam.

Mr. Humke questioned if polygraph examiners worked for police agencies or were independent contractors. Mr. Dreher replied examiners were employed by the law enforcement agency they worked for. Outside agencies used private examiners.

Mr. Humke believed independent contractors would oppose questions they felt were inappropriate. An employee would find it difficult to oppose inappropriate questions suggested by his employer.

Mr. Brown questioned if polygraph rules allowed specific questions. Mr. Dreher said yes, but vague questions were also allowed. An experienced polygrapher would review the questions and point out which ones should be reworded to obtain the desired results.

Mr. Brown stated specific questions would uncover the facts and clarify allegations. Mr. Dreher replied California had done away with the mandatory polygraph exam in 1977 because it was unreliable. The stereotype of the polygraph was it could answer questions for you. The appropriate time to use the polygraph was at the end of an investigation. It would be inaccurate to say the police officer supported the polygraph for criminal investigations, hiring processes and did not support it for their internal investigations. All the police officers wanted was the same rights and due processes that were afforded any other citizen.

Mr. Brown questioned whether the originally deleted language in Section 2, paragraph 2, should be reinserted. Mr. Dreher explained his proposed language insertion would be at the beginning of Section 2, paragraph 2, and the deleted language would be reinstated. Any citizen with a complaint should be encouraged and the polygraph would be available to them if they desired one.

Mr. Mortensen asked for clarification of when polygraph exams were brought into court. Mr. Dreher responded that during a criminal investigation both sides must agree to have the exam admitted into court.

Mr. Neighbors felt the media’s disclosure of the results of a police officers polygraph was unfortunate. Mr. Dreher answered the results should only be released if both sides agreed to it. The questions asked would set the polygraphs validity and should be analyzed.

Gary Wolff, lobbyist, Nevada Highway Patrol Association, said polygraphs were “Ouija” boards. Criminals and liars could pass the exam and truthful people could fail them. Polygraphs were unreliable and should not be used. Mr. Wolff wanted criminals and dirty cops prosecuted, but not with a polygraph machine. A Nevada highway patrolman who failed a polygraph test spent two years and thousands of dollars proving the polygraph was wrong. The polygraph exam was not an investigative but an intimidation tool. If Metro Police required a victim to take a polygraph before they investigated a complaint, then the problem was an internal one. Any complaint made at Nevada Highway Patrol was investigated fully. A.B. 282 was a bill about people’s rights, dignities and the ability to stop destroying people’s lives.

Nile Carson, retired Deputy Chief of Police, Reno Police Department, stated many police departments had come under criticism because of corruption and abuse of authority. It was the responsibility of the administration of those departments to maintain discipline within the department. The use of a polygraph was one tool they used. The polygraph was not a “black and white” issue. Police personnel were paid with public funds and exercised the responsibility to protect the citizens of the community. Any action taken against those citizens had a lasting impact. Honesty and integrity were demanded and any contrary actions must be answered for. Administrators had a public responsibility to stand between the citizens and police officers. The public interest would always be put above the individuals to ensure necessary discipline within law enforcement. Administrative action was the only tool the administrator had to “clean his house” and maintain discipline that ensured proper action. An arbitrator was a third and independent party that reviewed all administrative actions. A.B. 282 was a bad law that took away a tool. Officers would be allowed to hide actions they committed while they performed their official functions under public contract and oath.

Mr. Brown questioned how the Reno Police Department looked at “pass” or “fail” polygraphs and were the questions scrutinized for ambiguities.

Mr. Carson replied the department investigated any complaint. When an impasse was reached they would request the complaining party to take a polygraph exam. If the citizen passed the polygraph, the officer was asked to take one. The officer’s representatives were present and were allowed to review all questions that would be asked. The polygrapher was the expert and was involved in the makeup of those questions. They could tell which questions would get the desired results.

Mr. Brown asked whether the department accepted the polygraph exam or whether they looked at the examination questions. Mr. Carson replied the department had access to the questions and complete control over them.

Mr. Humke asked if in-house polygraph examiners were used or if outside contractors were used. Mr. Carson replied the department employees were used to conduct polygraphs related to internal affairs and criminal investigations. In the past, outside polygraph examiners had been used when there was a shortage.

Mr. Humke questioned the objectivity of the polygraph examiner when the command staff told them what type of questions they should ask. An employee was under the direction of the command staff and an independent contractor was not.

Mr. Carson replied the command staff could request certain questions to be asked, but it was the responsibility of the trained polygraph examiner to review those questions and make recommendations. Every case Mr. Carson was aware of the polygrapher’s recommendations were followed. A good polygrapher would look at the exam and would engage in dialogue that uncovered additional information. The additional information was subject to discovery laws.

Mr. Humke asked if there was justification in using an independent polygrapher. Mr. Carson did not see an advantage and it could cause further time delays in the investigation.

Ms. Smith commented people’s lives were at stake when a “bad” polygrapher was used. Mr. Carson replied a “good” polygrapher had good interrogation skills and used them during and after the exam. The actual polygraph exam was administered by qualified individuals who had to pass an exam to be certified. They had a specific internship and had to be recertified every year.

Mr. Brown questioned how the Reno Police Department treated “inconclusive” polygraph exam results and if it defaulted in favor of the officer. Mr. Carson explained it depended on what other facts were available at the time of the exam. Specific facts and evidence needed to be present before an “inconclusive” result would fall one way or another. If those facts were not present then the exam was not sustained and nothing happened to the officer.

Mr. Brown asked if the reports ended up in the officer’s personnel file. Mr. Carson replied the files were maintained in the internal affair files. The officer’s personnel files could be opened quite easily through any type of court action and the internal affairs files required a court order to be opened.

Chairman Bache commented he was concerned that Mr. Carson felt the polygraph was the most important tool in investigating officers. Quite often they were inaccurate. Instead of detailed investigation work the polygraph had become the “end all” during the investigations.

Mr. Carson agreed with Chairman Bache but stated sometimes it was the only tool that was left to do the job.

Jim Nadeau, Captain, Washoe County Sheriff’s Office and the Nevada Sheriff and Chiefs Association, stated they were opposed to the legislation and it was unfortunate that it came down to a labor and management issue. It should be an issue of the police officer’s responsibility to the community and the administrations ability to investigate allegations of misconduct. Barriers had been created within the community that affected citizens’ ability to come forth and make allegations of misconduct. The agency had a responsibility to investigate any allegation of misconduct through specific guidelines outlined in NRS 289. The officer had a right to be protected against wrongful allegations and the administration had a responsibility to make sure the investigation was appropriate. A criminal penalty was assessed when a wrongful allegation of misconduct was alleged. When the facts were undeterminable the perception was the polygraph must be used. To determine the validity of the complaint the witness was asked to take a polygraph. If the facts were not evident the investigation would stop. If the polygraph showed the witness was truthful in their perception of the incident, the officer was asked to take a polygraph. A.B. 282 would allow the officer to not take the polygraph and establish his interpretation of the incident. The administration would have to act on the information available if a polygraph was not taken. The challenge of the administration was to establish the integrity of the officer because he was unwilling to take a polygraph.

Mr. Nadeau said the polygraph test consisted of pre-interview questions, the actual exam, and post-interview questions. The participant and his representative were told what questions were going to be asked and they could voice any concerns they had. The post-interview addressed any concerns about questions in the exam. Many times, more than one polygraph had to be administered. The clarification of the issues could help clear up perception problems. No complaint filed was determined solely by the polygraph, but it was a tool that helped clarify the issues.

Mr. Nadeau explained a police officer still had his Fifth Amendment rights against self-incrimination. In LaChance v. Erickson [522 U.S. 262, 118 S.Ct. 753 (1998)], the Supreme Court ruled you could not lie about actions that might require discipline. The law enforcement profession was based upon the creditability to tell the truth. The polygraph determined if a person was telling the truth and could establish the truthfulness of an individual. The majority of the time the polygraph proved the officer acted appropriately.

Ms. Berman questioned what the “tools” of police investigation were. Mr. Nadeau stated other tools were interview techniques, physical evidence, and interviewing of complainant, alleged suspect, and witnesses. The tools were anything law enforcement used to get to the truth of the issue. The polygraph exam was one element that was available for use. The majority of the cases did not use the polygraph exam. Washoe County Sheriff’s Office did not have a full-time polygrapher.

Ms. Berman asked on a scale of 1 to 100 what weight would be given the polygraph exam. Mr. Nadeau answered the value of a polygraph exam would vary according to the status of the investigation. Sometimes the exam would be 100 points because it was all that was available. Other times it would be 1. Washoe County did not use the polygraph unless there was no alternative.

Ms. Smith questioned what percentage of internal investigations used the polygraph. Mr. Nadeau said he did not have the exact figures but thought it was less than 25 percent.

Ms. Smith wondered if a witness filing a false complaint could be prosecuted with a “failed” polygraph. Mr. Nadeau said the polygraph could determine that.

Ms. Smith stated if a polygraph was not 100 percent clean then the officer’s credibility and integrity could be destroyed.

Mr. Price stated comparing fingerprints and DNA were exact sciences. Under the best circumstances the current polygraph exam was still a judgment call.

Mr. Nadeau said interviewing was not an exact science. Various elements of an investigation were not exact sciences but helped come to the conclusion of an investigation. No investigation should rest totally on a polygraph but it was part of the building blocks of an investigation that arrived at the truth. It could determine the veracity of the complainant or if someone was deceptive.

Stan Olsen, Lieutenant, Las Vegas Metropolitan Police Department, stated his opposition to the bill. The polygraph was an important tool in the totality of the investigation to determine if an officer was telling the truth. Mr. Olsen disagreed with Mrs. Gibbons’ comment that police officers should have the same rights as other employees. Police officers were not the same. They carried a gun, had the ability to take away your freedom and your life. It was important for the administration to make sure that individuals who were placed with the public trust were the best possible people that could be out there. When police officers stepped over the line of trust the administration needed to correct those individuals. A citizen who took a polygraph when they filed a complaint reflected they were serious about the allegations. An officer filing a complaint against another officer must also take a polygraph.

Mr. Olsen did not feel sorry for any officer that lost his job because of misconduct. The public trust placed in police officers needed to be respected. The polygraph was a tool that was needed in criminal and internal investigations. January 1, 2000, Las Vegas Metro police initiated the policy that any officer who lied on any investigation would be terminated. It was important that police officers were truthful, accurate, reliable and trustworthy. Any officer who was not would be terminated.

Mr. Williams commented the witnesses from Washoe County said the polygraph should be used at the end of an investigation and Las Vegas Metro said the polygraph was used at the beginning. A spouse or family member who filed a complaint on behalf of the person victimized could be intimidated by a polygraph. Mr. Williams said the polygraph was a tool to confuse and should be eliminated in all investigations.

Mr. Nadeau said when NRS 289 was put in place there was a discussion on the use of polygraphs. Labor organizations wanted NRS 289 to require a mandatory polygraph of the complainant and today they wanted the mandatory polygraph exam of police officers removed.

Mr. Williams questioned Mr. Nadeau’s feelings about the elimination of the polygraph for the police officer and the complainant.

Mr. Nadeau responded the polygraph should be used in an investigation where there was an impasse regarding the investigation issues. Sometimes the misunderstanding of an issue could be cleared up with a polygraph exam.

Mr. Williams said in 1989 testimony reflected the chokehold was taught in the police academy but not used. Las Vegas Metro said they used the chokehold but did not teach it. During the 1960s, the Supreme Court ruled the polygraph exam was not admissible in a court of law. In 2001 the police department was saying the polygraph tool should be used. Like the chokehold, not all tools available need to be used. Law enforcement had many tools that were reliable, permissible and are understood by the public. The use of a polygraph test should be the last thing used in an investigation. It was hard to understand the state’s polygraph standard when there were discrepancies throughout the state.

Ms. Von Tobel hoped labor and management could work out their differences. Sometimes the Legislature was called upon to micro-manage issues that should be done on a local level.

Chairman Bache said he felt labor and management would not be able to agree on the issue and the committee would need to decide the fate of the bill.

Mr. Olsen said he would talk to the labor organizations to see if an agreement could be reached.

Mr. Neighbors said he felt the polygraph exam was a very intimidating tool that caused stress to anyone who took it. Mr. Nadeau responded during the course of his 29 years in law enforcement he had taken the polygraph exam three times because of alleged misconduct around him. In all cases he was truthful, intimidated, uncomfortable and passed the exam.

Mr. Neighbors said he would be more comfortable if an independent examiner gave the test.

Mr. Brown stated the polygraph was not an exact science but it was a proven science. He felt the interpretation of the information, how it was used, and where it was allowed to go afterwards were what needed to be addressed.

Danny Thompson, Lobbyist, Nevada State American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), stated he had run for the Legislature in 1981 because of the polygraph issue. Even though the polygraph exam was viewed as a tool, a hammer used in the wrong hands could be a murder weapon. The exam was not allowed in court because it was unreliable. Only a full investigation and truthfulness should be applied concerning a police officer’s job. Police officers were different, but an inaccurate investigation should not be used against them.

Mr. Mortenson commented employee theft had prompted him to give a polygraph exam to his retail establishment employees. One employee stood and said it was against his rights to take the exam and quit and the stealing stopped.

Mr. Thompson said he did not support bad people or bad police officers. The decision should be based on sound science and investigation.

Benjamin Blinn, citizen, Carson City, felt people in a position of public trust waived certain rights. People on parole were required to take tests and were assumed guilty if they refused it. The police monitor themselves and should have the same rules as the parolees. He felt the burden of proof was with the accuser and an inaccurate test should not be used.

Bob Gagnier, Executive Director, State of Nevada Employees Association, supported A.B. 282. The largest groups of peace officers within state affected by the bill were the employees of the Department of Prisons. They supervised the most proficient group of liars in the state. A correctional officer would be required to take a polygraph if an inmate passed the exam. There seemed to be more problems with the polygrapher than the polygraph machine itself. The polygrapher could go on and on during the post-exam interview and could cause problems. Phrases like “You appear to be untruthful in that question” could be intimidating.

Mr. Brown asked if additional questioning was given during the post-examination interview. Mr. Gagnier responded it depended on the examiner. The polygraph questions were submitted in the beginning for review by the employee and his representative. Any questions asked after the exam did not need to be reviewed. The employee’s representative was not allowed to be in the room during and after the test. The examiner would try and intimidate the examinee and make allegations they were not being truthful.

Mr. Brown asked if they were still hooked up to the machine during the post-exam interview and if rules governed the exam. Mr. Gagnier responded they were not hooked up to the machine and the rules of the post-exam were sometimes followed, and sometimes not.

Mr. Brown asked for information about the rules governing pre- and post-exam interviews. Mr. Gagnier said their attorney would get back to him.

Mr. Neighbors questioned who paid the polygrapher’s salary. Mr. Gagnier responded the majority of polygraphers used in state government worked for Nevada Division of Investigation (NDI). Mr. Neighbors commented that was like sending the rabbit out to guard the carrot patch.

Chairman Bache closed the hearing on A.B. 282 and put the committee at ease until Assemblywoman Chowning arrived.

Chairman Bache called the committee to order as a subcommittee because a quorum was not present and opened the hearing on A.B. 323.

Assembly Bill 323: Revises provisions regarding rights of peace officers. (BDR 23-1277)

Assemblywoman Vonne Chowning, Assembly District No. 28 of Clark County, introduced A.B. 323. The bill would prohibit the use of any statement taken by a police officer under duress to be used in a civil proceeding. Currently the law said any statement could not be used in a criminal proceeding but could be used in a civil proceeding. Section 2, subsection 3, allowed for the statement to be used if the officer agreed to it or if a court of law subpoenaed the information. A forced statement should not be used against a person. The police officers were depended upon and they should be protected from having a statement taken under duress used against them. The same level of protection given criminal proceedings should be granted to civil proceedings.

Mr. Dreher stated any officer under internal affairs investigation was read the “Garrity Warning” (Exhibit F). The 1967 U.S. Supreme Court case, Garrity v. New Jersey [385 U.S. 493 (1967)], stated any statement obtained in an investigation could not be used against the officer in a criminal proceeding. A.B. 323 would extend the protection to civil proceedings. The Supreme Court based their opinion on the 14^th Amendment that gave “equal protection to all.”

Mr. Mortenson questioned why this was needed if the officer told the truth.

Mr. Dreher responded a statement given regarding a fellow officer involved in a shooting could be litigated civilly. Many of the statements given by police officers were without representation. Statements given during an internal affairs investigation could be used in civil proceedings. A.B. 323 would help stop the proceedings from going into civil litigation.

Mr. Mortenson felt the facts given in an internal investigation should be the truth and could be used.

Mr. Dreher replied any officer involved in a criminal proceeding investigation was entitled to representation. If an officer said he did not want to talk then it could be used against him in a civil proceeding. When a policy was violated, an officer was required under NRS 289.060 to give a statement. What the officer said in a required hearing could be misinterpreted by attorneys. The bill would allow the officer to voluntarily have his statement reviewed and would allow the courts to view it independently.

Ms. Von Tobel questioned who would make the decision if the statement was taken under “duress or coercion.” Mr. Dreher said each peace officer under an internal investigation had to sign an acknowledgement that they knew they were giving a compelled statement.

Mr. Brown stated any statement a peace officer gave in an internal affairs investigation would not be admissible because every statement was coerced and under duress. Mr. Dreher replied affirmatively.

Mr. Brown explained that “duress, coercion or threat of punitive actions” was duplicate language. NRS 289.060, subsection 1, stated every statement a peace officer made could result in punitive actions and therefore every statement would come under the definition. He felt there was no decision making process in the bill.

Mr. Dreher agreed. The language was to reinforce why the protection was needed. A.B. 323 did not prohibit an officer from providing a voluntary statement that could be used in criminal or civil proceedings.

Mr. Brown referred to Section 2, “a lawyer or other representative,” and asked if the peace officers were represented by lawyers in an internal investigation.

Mr. Dreher replied they were sometimes. The law afforded the peace officer the representative of their choice. Depending on the severity of the situation, a representative could be needed immediately. The representative did not have attorney-client privilege.

Mr. Brown questioned who provided counsel to the officers. Mr. Dreher responded the officer’s associations provided the necessary counsel or representative.

Mr. Brown said that Section 2 intended to provide a type of attorney-client privilege for the peace officer. Mr. Dreher answered that was correct.

Andy Anderson, President, Las Vegas Police Protective Association Metro, Inc., supported A.B. 323.

Niles Carson, retired Deputy Chief of Police, Reno Police Department, also supported the passage of A.B. 323.

Chairman Bache closed the hearing on A.B. 323 and opened the hearing on A.B. 527.

Assembly Bill 537: Authorizes town board or board of county commissioners to provide or grant franchise to provide certain services within unincorporated towns. (BDR 21-829)

Mr. James Spinello, representing Clark County, stated that A.B. 537 would add additional services to the County that could be franchised or limited by competition. These were the same services the cities already had (Exhibit G). The unincorporated areas in Clark County were larger than most cities in the state and provided the same municipal services. The additional authority would allow those townships to provide the same services that cities did.

The Metropolitan Police Department was an inter-local agreement between the city of Las Vegas and Clark County. The “search and rescue” services were currently done through the auspices of Metro. They suggested the removal of Section 2, subsection 8, to avoid a conflict. Section 2, subsection 11, could be perceived as being a little “broad” in definition, but the language had been taken directly out of NRS that related to cities. The language was not edited because the same level of authority was sought by the counties. He requested if the authority could not be granted to the county then the authority be removed from the cities. It was inequitable that one government body would have the authority and the other would not.

Mr. Brown questioned what types of inspections were contemplated under Section 2, subsection 9. Mr. Spinello replied he did not know of any offhand and the language was taken directly from the cities’ section of statute. The bill applied to the ability to franchise and to limit competition of services. The county added a second ambulance service and restricted others to prohibit too many emergency vehicles on the roads. Public services needed to be provided by qualified and capable people. The bill would not affect the ability of government to privatize certain government functions they already had the authority to provide or to contract with agencies through inter-local jurisdictions.

Eileen O’Grady, Committee Counsel, asked whether the request to amend NRS 269, unincorporated towns, would affect NRS 244, county franchises, as well. Mr. Spinello said he would have to check with Legal and get back to Ms. O’Grady.

Chairman Bache suggested maybe Mr. Spinello needed both the unincorporated towns and the county sections amended. Mr. Spinello stated Clark County was unique because the County Board of Commissioners was also the town board of the various unincorporated townships.

Mr. Neighbors said he felt Section 2, subsection 11, was too broad and should be more specific. Mr. Spinello agreed with Mr. Neighbors, but felt the same authority given to cities should be given to counties. The nature of the jurisdiction should not limit the types of authorities available to them.

Ms. Von Tobel questioned why concession stands at the airport were under the “limited competition” clause. Mr. Spinello said that language existed and was not sure if it had been used. The concession stands were contracted through the bid process and were not a franchise.

Chairman Bache asked Ms. O’Grady if subsection 11 in NRS 268.081 applied to all cities or just general law cities. Ms. O’Grady responded NRS 268 affected all cities.

Ms. Von Tobel suggested maybe they should clean up existing NRS language and exclude concession stands along with police and fire protection. That would clarify the concession stands were an open bid process.

Carole Vilardo, lobbyist, Nevada Taxpayer’s Association, opposed the bill as it was written. She felt that Section 2, subsection 11, was too broad and there should be equity between cities and counties. She requested that it be deleted from NRS 269, NRS 244 and NRS 268. Section 2, line 12, stated, “to promote the general welfare of those inhabitants, displace or limit” and she suggested all references to “displace” be removed because of a policy issue. She could not find a logical reason to arbitrarily displace a privately provided competitive service. Some competition needed to be limited because of the nature of the service but no service should be arbitrarily displaced.

Chairman Bache wondered if a city or county could replace current, unsatisfactory service if the word “displace” was removed.

Ms. Vilardo said she hoped a government entity would do that if necessary. She was concerned about the arbitrary act of deciding to get rid of a service already in place. She could accept the word “displace” if parameters were defined.

Chairman Bache suggested Ms. O’Grady examine the word “displace” and offer some guidance. He then closed the hearing on A.B. 537 and opened the hearing on A.B. 538.

Assembly Bill 538: Authorizes sheriff to adopt certain policies, procedures, rules and regulations for administration of metropolitan police department. (BDR 22-186)

Stan Olsen said A.B. 538 would clarify rules and regulations a sheriff could develop. The sheriff would have the authority to set down rules, regulations and policies within the organization that he was responsible for. He proposed an amendment on Section 1, line 8, “such policies, procedures, rules and regulations must not conflict with civil service rules.” He also suggested the proposed deletion of Section 2, subsection 4(e), should be reinstated.

Andy Anderson stated the police officers’ benefits were dictated by state law, their contract, and civil service regulations. The proposed amendment would address that problem and they could support the bill.

Ms. O’Grady questioned how civil service rules were different from those adopted by the committee pursuant to that section. Mr. Olsen clarified the civil service rules were set by a board that must be approved by fiscal affairs and the proposed language would make the bill a little cleaner.

Mr. Anderson explained that rules and benefits were under civil service and not covered by their contract. The peace officers kept it out of the contract because it did not need to be in both places. The policies and procedures of the department could be changed daily or at the discretion of the sheriff. A civil service rule could only be changed with prior notification and presentation before the board. The peace officers were allowed to present their side on any change.

Chairman Bache reminded the committee that NRS 280 only applied to metropolitan police departments, which was Las Vegas Metro.

Ms. Gibbons questioned why Section 2, subsection 6, had language deleted. Mr. Olsen said he would have to defer to Ms. O’Grady on that.

Ms. O’Grady responded it was bill draft language to carry on with the deletion of Section 2, subsection 4(e).

Chairman Bache asked whether the language needed to be added because they were requesting Section 2, subsection 4(e), be reinstated. Mr. Olsen and Mr. Anderson both agreed the language could remain deleted in Section 2, subsection 6.

Chairman Bache closed the hearing on A.B. 538 and seeing no further business adjourned the meeting at 12:07 p.m.

RESPECTFULLY SUBMITTED:

Glenda Jacques

Committee Secretary

APPROVED BY:

Assemblyman Douglas Bache, Chairman

DATE: